- (1.) By way of this criminal misc. petition under Section 482 Cr.P.C, the accused-petitioners are seeking to quash the order of cognizance dated 15.9.2010 passed by the Chief Judicial Magistrate, Dausa in Criminal Complaint Case No. 547/2010 and the subsequent proceedings arising thereunder for offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as "the Act").
(2.) Brief relevant facts for the disposal of this petition are that on 10.4.2010 at 5.25 p.m. Food Inspector Shri Shanker Lal Mali visited the shop of M/s. Vardhman Traders, Bandikui (coaccused) and in the course of inspection of that shop he took sample of fruit drink "Mango Jayanti"" on the premise that the aforesaid food Articles did not conform to the standards laid down under the provisions of the Act. In due course of time, one of the samples was sent to the State Central Public Health Laboratory, Jaipur and the public analyst vide report dated 3.5.2010 opined that the sample is misbranded being in violation of clause (i) of Rule 32 of the Prevention of Food Adulteration Rules, 1955 (hereinafter to be referred as "the Rules") as the period of six months from the date of manufacture within which the food Articles was best fit to be used was given in small letters whereas the aforesaid Rule required that the same should be given in capital letters. After obtaining requisite consent from the competent authority, complaint for the aforesaid offence was filed by the Food Inspector against the petitioners being partners of the firm (Petitioner No.4) who sold and distributed the aforesaid food Articles to the vendor as well as the manufacturer (Petitioner No.5) and also against the vendor i.e. owner of M/s. Vardhman Traders, Bandikui from whose shop the samples were taken. On the basis of the complaint and the documents filed alongwith it, the Court below vide order dated 15.9.2010 took cognizance for the aforesaid offence and I issued bailable warrant against the accused including the petitioners. Feeling aggrieved, the petitioners are before this Court by way of this petition.
(3.) In support of the petition, learned counsel for the petitioners has raised the following grounds: (1) The complaint has been filed on the premise that the label of the sample did not contain the period in which the food Articles was fit for consumption from the date of manufucture in capital letters as required by clause (i) of Rule 32 of the Rules and the same was written in small letters and on that basis the sample was found to be misbranded within the meaning of sub-clause (k) of clause (ix) of Section 2 of the Act. According to learned counsel the deficiency found on the label of the package of the food Articles is hypertechnical and negligible and violation of mere formality prescribed under the provisions of the Act and Rules. It is required to be ignored, more particularly looking to the fact that sample was not found to be adulterated. (2) The offence is of trivial nature within the meaning of Section 95 of Indian Penal Code which provides that nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complaint of such harm. Looking to the fact that the sample was not found to be adulterated, in the light of this statutory mandate, the technical lapse, which could hardly cause any harm to the consumer of the food Articles, deserves to be overlooked. It is not even the cause of the prosecution that any consumer of the food Articles was misled in any manner. (3) From the provisions of the Act and Rules it is clear that public analyst is entitled only to analyse the sample of food sent to him by the Food Inspector and to find whether it is adulterated or not and he is not entitled to determine the manner in which the Articles or food has been packaged and whether it is "misbranded" within the meaning of the Act and Rules, but in the present case, the public analyst acted beyond his jurisdiction and. therefore, the report prepared by him is inadmissible in evidence and cannot be made basis of prosecution. (4) None of the documents prepared at the time of taking of samplesb the Food Inspector states that the samples so taken are "misbranded" and, therefore, it could not have been reported by the public analyst that the samples sent by the Food Inspector is misbranded. (5) Although, at the relevant time the petitioners No.l to 3 were partners of the firm M/s. Jayanti Beverage (the petitioner No.4) but none of them was nominated as per requirement of Section 17 of the Act and one Shri Sunil Jain was duly nominated to be in charge of, and responsible to the aforesaid firm for the conduct of the business vide resolution dated 1.4.2010 as revealed by Annexure-F filed along with the present petition. As per the requirement of Section 17 of the Act, only the nominee of the firm can be prosecuted under the provisions of the Act but in the present case nominee Shri Sunil Jain has not been prosecuted and petitioners No. 1 to 3 have been unnecessarily arrayed as accused by the reason that they are partners of the firm M/s. Jayanti Beverage and, therefore, the complaint suffers from the vice of mis-joinder of parties. The complaint also suffers from the vice of misjoinder of accused by the reason that along with the petitioners, vendor Shri Vivek Kumar owner of M/s. Vardhman Traders from whose shop the sample was taken has also arrayed as accused although he is not responsible for "misbranding" of the sample.;