H.S.BEDI, J. - (1.) THE petitioner is aggrieved by the order dated 9. 9. 1991, Annexure P-4 to the writ petition whereby the powers of Food Inspector conferred upon him have been withdrawn.
(2.) THE facts giving rise to the filing of the present petition are as under:the petitioner was working as a Sanitary Inspector in the Health Department when he was conferred the additional powers of Food Inspector vide notification dated 9. 6. 1977, issued under the provisions of Sub-section (i) of Section 9 of he Prevention of Food Adulteration Act, 1954, read with Rule 8 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to us the Rules' ). The State of Haryana thereafter, refrained its policy with regard to the appointment of Food Inspectors and this Policy was communicated to respondent No. 2, the Director General Health Services, Haryana, Chandigarh, vide letter dated 25. 6. 1984. The appointment of the petitioner as Food Inspector was made afresh under this Policy and the powers were conferred on him vide notification dated 203. 1985. A copy of this notification has been appended as Annexure P-1 to the writ petition. This notification was rescinded by die notification dated 9. 9. 1992, Annexure P-4 to the petition. The case of the petitioner primarily is that before the powers of Food Inspector could be taken away from him, he was entitled to a hearing and that the powers having been conferred under the Act, could not be taken away by a mere notification. It has also been averred that as the impugned notification did not assign any reasons for the action taken against the petitioner, it amounted to an exercise of unbridled and arbitrary power and could not be sustained. The respondents in their reply have controverted the stand of the petitioner and have stated that the petitioner was given powers of Food Inspector under the Policy dated 25. 6. 1984 and in this policy it was clearly stipulated that the powers of Food Inspector were not to be given to a Tehsil Sanitary Inspector against whom strictures had been passed by a Court and if he was already exercising such powers, the same were liable to be withdrawn. In this connection, it has been pointed out that some strictures has been passed against the petitioner by Shri V. P. Bishnoi. Chief Judicial Magistrate, Jind in his judgment dated 9. 2. 1991, in case titled as State v. Dashrath Kumar. The relevant portion of the remarks made by the Judge, is reproduced below: "after having heard the parties and after going through the file carefully, I have come to the conclusion that the learned defence counsel has merits in his contention. Report Ex. PB itself makes it clear that the sample was that of biscuits and not of hard boiled confectionary. It is the case of the prosecution that the sample was taken that of hard-boiled confectionary. Therefore, it is clear that the sample which was taken from the accused was not sent to the public Analyst because the Public Analyst had received the sample of biscuits and no of hard boiled confectionary. Therefore, for this reason, the accused cannot be held guilty on the basis of the report Ex-PD because the sample of biscuits was taken from the accused as per case of the prosecution. The Food Inspector had admitted in his statement that he purchased six packets of hard-boiled confectionary from the accused against the payment of Rs 6. 30. He divided these six packets in three bundles. Each bundle contained two packets and then he sealed each bundle and sent one of the bundle of sample alongwith one copy of the memorandum in form VII to the Public Analyst Haryana. He deposited the remaining two bundles alongwith two copies of memorandum in form VII with LHA. Jind. Thus, it is clear from the statement of PW1 that the bundles of the sample were not sealed in any container preventing the entrance of moisture etc. in the sample and further preventing the tampering with the sample. Therefore it is clear that he did not seal the sample according to the provisions of the Act and (he Rules and this being so, in view of the law laid down in Garg Masala v. State of Punjab (Supra), he cannot be convicted. This is a case tried as a warrant case and, therefore, at this stage the Court has to see as to whether the evidence available on record if goes unrebutted, can warrant the conviction of the accused. If the reply of this question comes in positive, then the Court has to frame charge against the accused and if the reply of this question comes in negative, then the Court has to discharge the accused. In ours' case, the reply comes in negative because ultimately the accused has to be acquitted on the basis of the law laid down in the aforecited authority. Thus, in view of my foresaid discussion, I have come to the conclusion that no prima facie case is made out against the accused and he deserves to be discharged. I order accordingly. A copy of this order be sent to the Director, Health Service, Haryana for necessary action against the Food Inspector Sh. S. K. Sharma. File be consigned to the record room. "
(3.) WE have heard the learned counsel for the parties and find no merit in this petition. It is the conceded case that the powers of Food Inspector were conferred on the petitioner by virtue of the policy dated 25. 6. 1984. The petitioner was accordingly bound by the policy in its entirety. In this policy it had been clearly set out that the Food Powers conferred on a Tehsil Sanitary Inspector were liable to be withdrawn in case some strictures had been passed against him by the Court. We have seen from the portion of the judgment quoted above that strictures had been passed against the petitioner and the Court had even recommended departmental action against him and as such the action taken was fully warranted. It has been conceded before us that no action was taken by the petitioner at any stage to have these remarks of the Chief Judicial Magistrate expunged by a higher Court and in this view of the matter, they are deemed to have been accepted by the petitioner. Faced with this situation, Mr. Bansal, the learned counsel for the petitioner cited a number of judgments of this court to contend that the remarks made by the Chief Judicial Magistrate were not called for as the petitioner had fully complied with all the statutory formalities enjoined upon him by the Act and the Rules when he took the Food sample. This argument too is unacceptable in the face of the subsisting Order of the Court. In this situation there is, no merit in the arguments of the learned counsel for the petitioner that before taking any action against the petitioner he should have been heard.;