N.K.KAPOOR, J. - (1.) THIS order will dispose of Cri. Misc. Nos. 3566-M and 3568-M of 1993.
(2.) PETITIONERS seek quashing of the complaint and the resultant proceedings pending in the Court of Chief Judicial Magistrate under the Prevention of Food Adulteration Act, 1954. According to the petitioners samples of Paneer/Butter were taken from the premises of Kwality Restaurant, Panchkula, by Food Inspector Ram Singh on 21.9.1992. On receipt of report of the Public Analyst, complaint, Annexure P-1, alongwith report of the Public Analyst, Annexure P-2, was instituted in the Court of the Chief Judicial Magistrate, Ambala. In complaint petitioner No. 1 has been impleaded as accused being the proprietor and petitioner No. 2 as Manager of Kwality Restaurant. On the institution of complaint, trial Magistrate issued process of the Court to the petitioners, which order being challenged on the ground firstly that no offence is made out against the petitioners and secondly the cognizance of the complaint could not be taken by the trial Court on the grounds that (i) Shri V.P. Harnal, the Public Analyst, was not a qualified Public Analyst within the meaning of Rule 6 of the Prevention of Food Adulteration Rules, 1955; (ii) Shri V.P. Harnal has been appointed as a Public Analyst with retrospective effect from 6.12.1979 for the State of Haryana vide notification dated 11.11.1991; (iii) Shri V.P. Harnal has not been declared to be qualified for appointment as Public Analyst by a Board appointed and notified the Central Government for such purposes as per requirement of Rule 6(b) of the Prevention of Food Adulteration Rules, 1955; (iv) the retrospective appointment of Public Analyst, w.e.f. 6.12.1979 has been made so as to bring him within the proviso of Rule 6 of the Prevention of Food Adulteration Rules; (v) its retrospective appointment is not permissible, it being a statutory appointment; (vi) no local area has been assigned to Shri V.P. Harnal as required under Section 8 of the Prevention of Food Adulteration Act; (vii) in a printed proforma of the complaint, names and other particulars have been inserted which practice has been deprecated by a Division Bench of this Court; (viii) Kwality Restaurant from where the sample is alleged to have been taken is a company within the meaning of section 17 of the Act. Petitioner No. 1 Shri S.K. Lamba could not have been arrayed as an accused in the complaint as according to section 17 of the Act any person who was incharge and was responsible to Company for the conduct of the business of the Company can be said to be guilty of the offence and so was liable to be proceeded against. This way the petitioner No. 1 has been wrongfully impleaded as a proprietor. Complaint nowhere mentions whether petitioner No. 1 was incharge of and responsible to the Company for the conduct of day-to-day business. Complaint is liable to be quashed on this ground alone; and (ix) Company has not been impleaded as a party.
(3.) PURSUANT to the notice issued by the Court, reply has been filed.;