- (1.) M. Katju, J. This writ petition and connected writ petitions involve common questions of facts and law and hence they are being disposed of by a common judg ment.
(2.) HEARD Sri Sudhir Chandra, learned Senior Advocate and Sri V. K. Shukla for the petitioners and learned Government Counsel for the respondents. This petition under Section 482, Cr. PC. has been filed for quashing the criminal complaint No. 902 of 1996, State v. Jagdish Singh and others, pending in the court of 1st A. C. M. , Etah. The petitioner company is incor porated under the Indian Companies Act which has got its manufacturing unit at Kasganj Road, district Etah where it produces products like Anik Ghee, Anik Milk powder etc. The raw material of the petitioner is milk for which various milk collections centres have been established in the rural areas where the milk is col lected in tanks and the same is transported in tankers to the factory for manufacture. In paragraph 4 of the petition it is stated that at the time of collection of milk upto the stage of delivery to the processing unit the milk has to be kept at a very low temperature in order to avoid curaling, and for that purpose large quantities of ice is added to it. In paragraph 5 of the petition it is alleged that on 20-5-1996 the Food Inspector took a sample of mixed milk of buffallow, cow and goat from the milk collection centre of the Company from one of the tanks in which milk was kept. The said sample was taken for analysis. In paragraph 7 of the petition it is alleged that when the said milk was taken the Food Inspector was informed that the place was only a milk collection centre and no milk was sold to anyone from there. He was also informed that the milk had been chilled and the same was to be transported to the factory. However, the Food Inspector sent the sample to the Public Analyst who declared the same to be adulterated as the milk fat was found deficient by 22% and SNF was found deficient by 25%. In para graph 10 it is alleged that thereafter the Chief Medical Officer in a mechanical manner without applying his mind ac corded consent for prosecution of the petitioner and thereafter criminal com plaint No. 902 of 1996 was filed in the Court of A. C. J. M. , Etah. True copy of the same is filed as Annexure 4 to the petition. In paragraph 12 it is alleged that since the criminal prosecution was false, the petitioner filed an application for recalling the summoning order. However, the same was rejected on 19-2-1997 vide Annexure-8. In paragraph 15 it is alleged that the criminal prosecution is an abuse of the process of the Court. In paragraph 16 it is alleged that the milk taken from collection centre was not for sale and in para graph 17 it is alleged that milk was not sold to anyone and hence no offence was com mitted. In paragraph 19 it is stated that adding of ice was only with the sole object and endeavour for preserving the milk.
(3.) COUNTER and rejoinder affidavits have been filed and I have perused the same. Sri Sudhir Chandra, learned Senior Advocate alleged that the petitioner was not selling milk at all, and it was only selling milk powder, ghee etc. He relied on the decision or the Supreme Court in Om Prakash v. Delhi Administration and another, 1976 SCC (Crl) 128, where it was held in paragraph 7 that the act of storing an adulterated article of food would be an offence only if storing is for sale. He also relied on Municipal Corporation of Delhi v. Laxmi Narain Tandon and others, 1976 SCC (Crl.) 76, where it was held that the word "store" does not means storage simpliciter but storing for sale. He also relied on M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, JT 1997 (8) SC 705. where it was held that the Magistrate is expected to carefully scrutinise the evidence on record to see if prima facie an offence is committed before issuing process. The allegation in paragraph 17 of the petition that the milk was not for sale has not been specifically denied in para graph 27 of the counter-affidavit, rather a vague reply has been given that the petitioner No. 2 has obtained a licence for sale of milk. In my opinion, merely obtain ing a licence for sale of milk does not mean that the petitioner was actually selling milk, rather it is clear from the allegations in the writ petition that the petitioner was selling milk products like milk powder, ghee etc. Since the petitioner was not sell ing the milk at all in my opinion the sub mission of the learned Counsel for the petitioner is correct that there was in fact no sale of milk, and hence the question of prosecuting the petitioner for selling the adulterated milk does not arise at all. At best it can be said that the milk stored by the petitioner at the collection centre was adulterated because of ice added to (sic) the said milk was sold by the petitioner there is no question of prosecuting the petitioner.;