- (1.) THE present Criminal Miscellaneous Petition is directed against the order impugned dated 29.11.2002 passed by the SDJM, Dhanbad in PFA Case NO.7 of 2002 wherein cognizance was taken against the petitioners for the offence under Sections 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954.
(2.) THE prosecution story as it stands narrated in the prosecution report as contained in the printed format forwarded by the Chief Medical Officer/Local Health Authority dated 25.11.2002 to the SDJM, Dhanbad was that, complainant/opposite party NO.3, Sita Sharan Choudhary, Food Inspector, Baghmara collected samples of Rahar Dal from the cooperative store on 6.2.2001 and sent the same to the Public Analyst, Mineral Area Development Authority under seal and cover. The Public Analyst found that the sample of Rahar Dal contained lathyrus sativus (Khesan) as adulterant, so sample was adulterated and accordingly, complaint was filed and cognizance of the offence was taken by the SDJM, Dhanbad on 29.11.2002 under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954. 3. The learned counsel submitted that the petitioner NO.1, M/s Hindustan Zinc Limited, is a Government Company duly registered under the Companies Act, 1956, manufacturing Zinc having its Head Office at Udaipur, Rajasthan with its Branch Office at Tundu, District Dhanbad but the prosecution was silent as to by whom the said company was represented. The petitioner NO.2 Kajal Gone was an employee of the Cooperative Store, being run by the office bearers of the Society for the benefit of the consumers who were the member of the said society. Petitioner NO.1 M/s Hindustan Zinc Limited was not at all concerned, having no control over the cooperative store as the said store was having its own Secretary, office bearers and salesman being run on "no profit no loss" account. 4. The learned counsel pointed out that the petitioner No. 2 was an employee of the cooperative store. Being paid servant he was having no knowledge or concern with the nature of materials available in the store as he used to attend the sale counter on the arrival of the consumers/ members of the cooperative store to purchase commodities. It was nowhere alleged in the complaint petition/prosecution report that sample of Rahar Dal collected, from the stores was found to be injurious to health. Similarly, it was nowhere alleged that the business of the cooperative store was of manufacturing or processing of food products and that the Rahar Dal was adulterated at the instance of the petitioners. As a matter of fact the cooperative store used to purchase the commodities from the open market at competitive rate in whole sale and then resale it to the members at the cheaper rate. 5. On the point of law, the learned counsel submitted that as per the alleged occurrence, sample of Rahar Dal was collected on 6.2.2001 and sent to the Public Analyst. The public analyst submitted its report on 17.3.2001 but complaint case in the form of prosecution report was filed on 25.11.2002 without explanation of such inordinate delay and that the cognizance of the offence was taken beyond the statutory period on 27.11.2002 and therefore, the prosecution of the petitioners was barred by limitation under Section 468 Code of Criminal Procedure. 6. The State of Jharkhand opposite party by filing the counter affidavit stated that the report of the Public Analyst, Mineral Area Development Authority, Dhanbad, substantiated that the sample of Rahar Dal, which was collected from the cooperative store of the petitioners was found adulterated as it contained lathyrus staivus (Khesari Dal. Admittedly, Khesari Dal was injurious to health, which was being sold to the members of the cooperative stores and this fact was within the knowledge of the petitioner M/s Hindustan Zinc Ltd. whereas the petitioner NO.2 was working in the cooperative store as its In -charge. Only because the Public Analyst did not mention that the Rahar Dal which was found adulterated was not injurious to health cannot improve the defence against the prosecution of the petitioners. The Food Inspector, Baghmara was within his competence, under the Gazette Notification, to inspect the cooperative stores of the petitioners, under the Prevention of Food Adulteration Act under the Mineral Area Development Authority. It was further asserted that the petitioners did not disclose the name and address of the vendors from where they purchased the adulterated Rahar Dal and the very fact that about 25 Kgs of adulterated Rahar Dal was found in the cooperative store for sale was sufficient to proceed against the petitioners. The Food Inspector, Baghmara had collected the sample by paying the cost of Rahar Dal and such payment of cost was a sale within the provisions of the Prevention of Food Adulteration Act. 7. Having regard to the facts and circumstances of the case, I find substance in the arguments of the learned counsel for the petitioners that the petitioner No. 1 M/s Hindustan Zinc limited being a company of the Union of India under the Companies Act has not been represented by any authority for its prosecution in the prosecution report. Admittedly, the company bears the identity of a person which can sue or be sued, but in so far as it relates to any criminal offence, thereby criminal prosecution, the petitioner NO.1 M/s Hindustan Zinc limited which has been figured as an accused cannot be prosecuted and I find that the learned SDJM, Dhanbad without application of judicial mind took cognizance of the offence against the company which cannot sustain. Accordingly, the criminal proceeding against the petitioner no. 1 in PFA Case NO.7 of 2002 pending before the SDJM, Dhanbad is quashed. As regards on the point of limitation for filing complaint after one year nine months of the alleged collection of food products are concerned, the cognizance of the offence by the learned SDJM under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act 1954 was within limitation was not time barred. 8. In so far as criminal proceeding against the petitioner No. 2 Kajal Gone is concerned, it was alleged that he was the In -charge of the cooperative store, being run by the members of cooperative society yet, the prosecution failed to show that he was In -charge of the management of the cooperative store. On the other hand, it was strongly pleaded that the cooperative store was run and managed by its Secretary, office bearers and others members of the society being run on "no profit and loss" account. However, there was allegation that the sample was collected in his presence and at the relevant time he was the In -charge of the cooperative store. 9. In such situation it would not be appropriate to explore and observe as to what responsibility was shared by the petitioner No. 2 in relation to management of the cooperative store and his capacity to work therein. I find prima facie therefore, materials against him, without prejudice to the merit of this case and the defence failed to show any convincing ground for quashment of his criminal Proceeding in the instant case. Accordingly, this Criminal Miscellaneous Petition is dismissed as against the petitioner No. 2 Kajal Gone but allowed in favour of the petitioner No. 1 M/s Hindustan Zinc limited in the manner as observed hereinabove.;