- (1.) Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure,1973 seeking quashing of the criminal complaint No. 35 of 2004 dated 17.2.2004 titled as GFI vs. Sunil Kumar and another (Annexure P3) and summoning order dated 24.5.2011 (Annexure P6) alongwith all subsequent proceedings arising thereto.
(2.) Contents of the complaint (Annexure P3) read as under:- "Dr.G.S.Yadav, DHO Rewari as Food Inspector appointed under the Act and posted for all the local area of District Rewari vide Haryana Government Notification No. 34/71/87-2HB-II dated 26.2.1991 inspected the premises of Shri Sunil Kumar on dated 7.8.03 at 6.30 PM at Sadhu Shah Nagar, and found in his possession 650 bottles of Mirinda cold drink in his possession for sale to the public. Demanded a sample of cold drink Mirinda by giving him notice in writing on Form VI prescribed under the Prevention of Food Adulteration Rules, 1955. He purchased 6 Bottles of Mirinda cold drink against the payment of Rs.78/- for the purpose of analysis. A sample of Mirinda cold drink taken by him was separated into three equal parts. Each part was labeled and sealed with the seal of Dr. Vijay Prakash MO, PHC, Bhara was who accompanied him .Each part was wrapped with help of Khaki Paper and twin according to PFA Rules. One seal of Dr. Vijay Parkash put on the neck. Each part was labeled, wrapped with the help of Khaki Paper and the ends of khaki paper were pasted with the help of gum and a paper slip bearing code No. Sr. No. signature of Local Health Authority/Civil Surgeon, Rewari was pasted with the help of gum on each part. I bump impression of Sh.Sunil were taken on each sealed sample in such a way that half of the portion of thumb impression came on paper slip and remaining on the Khaki paper. Thumb impressions of Sh.Sunil Kumar were obtained on notice VI. Receipt and spot memo during the sampling process one independent witness Sh.Rai Singh,at Gokal Gate, Rewari, was taken as a witness on all the documents. Signature of Dr. Vijay Prakash MO were taken on all the documents. Five copies of Form VII was prepared on spot and seal impression of Medical Officer and Food Inspector were taken on the spot. One sealed part with a memorandum in Form VII was sent to the Public Analyst Haryana, Chandigarh for analysis in a sealed wooden box through Railway Parcel No.370848 dated 8.8.2003. The other two sealed part of sample alongwith two copies of Form VII were deposited with the Local Health Authority on 8.8.2003. A copy of memorandum Form VII and a seal impression Seals use to Seal the sample were sent to the Public Analyst Haryana, Chandigarh separately by registered post vide by post office receipt No. 3305 dated 8.8.2003. The samples were taken in the presence of witnesses whose name and address are given below:- The certificate of Public Analyst Haryana, Chandigarh admissible under Section 13 of PFA Rules is attached herewith it shows that the quantity of added sugar is not declared on the sample bottled as required in the Govt. of India Notification Number GSR-853 (R) dated 30.12.2002 issued by Ministry of Health & Family Welfare (Department of Health), New Delhi. Complainant prays that Sh. Sunil Kumar have kept and stored the said food article for public sale and was selling it. He has committed an offence U/s 7 of the Food Adulteration Act. Action may kindly be taken against him U/s 16 of the said Act. And whereas I, Omdhar Sanwal GFI, Rewari have been authorized to institute prosecution against an offence under this Act vide Haryana Government Health Department notification No.3/29-2001-II HB dated 23.10.2001. I do hereby submitted this complaint for disposal according to law."
(3.) Learned counsel for the petitioner has submitted that clause (1) of sub rule ZZZ of Rule 42 of the Prevention of Food Adulteration Rules, 1955 was amended with effect from 1.10.2003, whereas, the sample was manufactured on 29.7.2003. Learned State counsel, on the other hand, has submitted that as per proviso to item A.01.01 of Appendix B to the said Rule, the added sugar content was liable to be disclosed on the bottle in terms of clause (1) sub rule ZZZ of Rule 42. The said proviso came into operation with effect from 1.4.2003 and the sample in question was manufactured after the said date.;