Where reliance has been placed on Suresh's case (supra).
Thus, from this established position of law as has been detailed and
discussed above, it clearly stands established that even a Food
Inspector who had not undergone the requisite training was
competent to purchase food articles for analysis and to maintain a
complaint under the Act even as a public servant or in the capacity of
a consumer and, therefore, we answer these questions of law so
referred to this Court by the learned single Bench, accordingly.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Revision No. 767 of 2005
Date of Decision: 26.08.2013
State (Food Inspector) ....petitioner
versus
Babu Singh ....Respondent
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE FATEH DEEP SINGH
A complaint under Section 7 (i) read with Section 16 (1)
Clause (a) (i) of the Prevention of Food Adulteration Act, 1954 (for
short 'the Act) was filed by Food Inspector, Union Territory,
Chandigarh, against accused-respondent Babu Singh, milk vendor,
on the averments that on 19.10.2000 at about 08:30 am, the
accused-respondent was in possession of 40 litres of buffalo milk
meant for public sale and the Food Inspector, who has been notified
so and appointed vide Chd.Admn.Gazette Notification No.2828-UTFI
(2)-AH-97/13667 dated 08.10.1997, after necessary formalities had
drawn the sample as per rules after filling Form No.VI, in the
presence of independent witnesses and in due course sample was
sent to the public analyst and was found to be deficient in milk fat byCriminal Revision No. 767 of 2005 2
13% and in milk solids not fat by 31% of the minimum prescribed
standard for buffalo milk, leading to the filing of the complaint before
the learned Chief Judicial Magistrate, Chandigarh, on 31.01.2009. It
was after the accused was served charge sheet to which he had
pleaded not guilty and during the course of trial, an application was
moved on 17.09.2003 for discharge of the accused on the grounds
that the Food Inspector, who had drawn the sample had not
undergone the requisite training and therefore the prosecution was
invalid and sought dismissal of the complaint. The application was
opposed by the State contending that the application was mala fide
as the Food Inspector had undergone proper training and no
prejudice has been caused to the accused-respondent and there was
no legal infirmity in the appointment of Food Inspector or in the
drawing of the samples.
The Court of learned Chief Judicial Magistrate,
Chandigarh, through impugned order dated 24.05.2004 allowed this
application and thereby discharged the accused and which finding
has been impugned in the Criminal Revision No.767 of 2005 by the
State on the strength of the contentions detailed in the revision
petition.
It was subsequent during the hearing of the criminal
revision, the learned Single Bench through order dated 12.04.2013
has referred the matter for decision by larger Bench in the light of
important questions of law arising in the revision petition which have
been enumerated as follows:
1. Whether complainant-Food Inspector, acting as deCriminal Revision No. 767 of 2005 3
facto food Inspector but who had not undergone
requisite training, was competent to purchase the
food article for analysis and could maintain complaint
under the Prevention of Food Adulteration Act, 1954
for prosecution of the respondent accused?
2. Whether the complainant-Food Inspector if held to be
not competent to take sample as Food Inspector,
could be treated as private purchaser of the food
article for analysis under Section 12 of the
Prevention of Food Adulteration Act, 1954 and could
maintain complaint for prosecution of the respondent
accused under proviso to Section 20(1) of the said
Act?
Heard learned counsel for the parties.
It was keeping in view the dire need to have uniformity
regarding standards of food meant for human consumption and in the
light of the rampant adulteration of food stuffs and other such things
a need had arisen for enactment of a Central Legislation, whereby
such articles have been placed in List III i.e.Concurrent List of the
Constitution of India and thereby the Central Legislation by way of
the Act had come into being.
Section 9 of the Act postulates the notification in the
Official Gazette appointing such persons as the Central or State
Governments may deem necessary as they think fit having
prescribed qualifications to be Food Inspectors for such local areas
and assign powers to them stand invested in terms of the Section 10Criminal Revision No. 767 of 2005 4
of the Act. Section 9(2) embodies that a Food Inspector so notified
would be deemed to be a public servant in terms of Section 21 of the
Indian Penal Code, 1860. By virtue of Section 10 confers powers on
the Food Inspector to take sample of any article or food and wayback
in State of U.P. Versus Hanif AIR 1992 SC 1121, it was laid down
that the evidence of the Food Inspector is not to be inherently
suspected nor should be rejected on the ground of lack of any
corroboration as it embodies upon him to draw samples for analysis
as per the rules framed by way of Prevention of Food Adulteration
Rules, 1955. However, at the same time, it is obligatory upon him to
follow the procedure in drawing the samples as per law and which
procedure has been enshrined by way of Section 11 of the Act.
The contentions of Mr.Sandeep Vermani,Amicus Curiae
that the scope of the Act has been made much wider by The
Prevention of Food Adulteration (Amendment), Act, 1986 (70 of
1986) which has come in force from 01.05.1987 empowering any
purchaser of any article of food other than a Food Inspector, a
recognised consumer association etc. from having such food article
analysed by the public analyst subject to certain procedure could not
be controverted on behalf of the accused-respondent. It is not the
case of the accused side that there has been any remiss in drawing
the samples and the only grouse is over the fact that Food Inspector
did not possess requisite training and thus was not competent to
draw such a sample and which has weighed heavily in the mind of
the learned Magistrate as the impugned finding reflects by purely
holding that the Food Inspectors have not undergone proper trainingCriminal Revision No. 767 of 2005 5
in food inspection and sampling work as their training has already
been held to be not as per provisions of Act and Rules, therefore,
these Food Inspectors cannot be held to have taken the sample
properly as it would have taken by a Food Inspector who had
undergone proper training from the proper authority in food
inspection and sampling work. Even if for the sake of arguments as
per the contentions of the counsel for the accused-respondent that
the Food Inspector had not undergone requisite powers but even
then in the light of the allegations that the milk was being sold
publicly have to be used at large, the Food Inspector can be termed
as a purchaser in terms of Section 12 of the Act and there is no bar
to his acting in such a manner and furthermore by virtue of Section
20 of the Act, a prosecution for such an offence under this Act can
be instituted even by such a purchaser after producing a copy of the
report of the public analyst along with the complaint and therefore
even by that scope it would be highly inappropriate as has been held
by the learned court below that prejudice has been caused to the
accused.
It is not contended as to the very appointment of a
Food Inspector and learned counsel for the respondent could not
show how even in the absence of proper training the act of the Food
Inspector in drawing the sample renders it an illegality as the Hon'ble
Supreme Court in his propounding De Facto Doctrine in Gokaraju
Rangaraju vs. State of Andhra Pradesh (1981) 3 Supreme Court
Cases 132 has held that the same has received judicial recognition
even in foreign countries and even if there is any defectiveCriminal Revision No. 767 of 2005 6
appointment but it cannot be permitted to be questioned over the title
of a public servant to his office and the acts done during the
discharge of such office under a colour of unlawful authority cannot
be held to be defective merely on that scope and which is the
proposition laid down in “S.K.Sinha and others vs. Assistant
Collector of Customs and others” 1985 Crl.LJ 1137, “Hamilton
Houswares Pvt. Ltd. vs. Designated Authority, Directorate
General of Anti-Dumping and Allied Duties and others” 2012(1)
Mh.LJ 442, “Madan Lal vs. The Registrar, Co-operative
Socieities, Punjab, Chandigarh” 1995(2) SCT 191, “Jagdish
Singh Walia vs. State of Punjab and others” 2005(3) RCR (Civil)
665, “S.K.Jain vs. State of Punjab (P & H)” 1996(2) SCT 458,
“Tul Par Machine & Tool Company, Faridabad vs. Joginder
Pal, Workman and others” 1983 (2) ILR (Punjab) 357 , “Central
Bank of India vs. C.Bernard”(1991) 1 Supreme Court Cases
319 and “Swatantar Kumar Lamba vs. State of Haryana” 1995
(1) Recent Criminal Reports 546 (P & H) , expressing its opinion in
“Lalchand vs. State of Madhya Pradesh” 1980 (II) FAC 38 (MP)
and “MCD and another vs. Shori Lal”1975 FAC 192 (Delhi) on
similar question as to lack of training by a Food Inspector it was held
that if there is no illegality or irregularity in drawing of the sample then
such a grouse is unsustainable and at the most the Food Inspector
can be treated as a purchaser by way of a private citizen on whose
complaint an accused-respondent can be prosecuted. Answering in
a similar situation, the Hon'ble Supreme Court in “Suresh H.Rajput
etc. vs. Bhartiben Pravinbhai Soni and others etc.”1996 AIRCriminal Revision No. 767 of 2005 7
(SC) 2883 has detailed at length and has held that the qualifications
of Food Inspectors cannot be challenged in collateral proceedings
what is the material is whether the Food Inspector had taken the
samples in accordance with the provisions of the Act or the Rules
made thereunder. Further elaborating that in case the Court finds
that if he committed any contravention what would be its effect on the
prosecution is a matter to be considered but his qualifications cannot
be looked into when he lays prosecution for adulteration of the
articles of food under the Act and similar view has been espoused in
G.Y.Ramekra vs. Rehmanbhai I Ghenchi and others 2005 Crl.LJ
3841 where reliance has been placed on Suresh's case (supra).
Thus, from this established position of law as has been detailed and
discussed above, it clearly stands established that even a Food
Inspector who had not undergone the requisite training was
competent to purchase food articles for analysis and to maintain a
complaint under the Act even as a public servant or in the capacity of
a consumer and, therefore, we answer these questions of law so
referred to this Court by the learned single Bench, accordingly. In
the light of the same, the matter be sent back to the learned single
Bench to proceed ahead into the matter as per law.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
Judge
26.08.2013
neenu
Thus, from this established position of law as has been detailed and
discussed above, it clearly stands established that even a Food
Inspector who had not undergone the requisite training was
competent to purchase food articles for analysis and to maintain a
complaint under the Act even as a public servant or in the capacity of
a consumer and, therefore, we answer these questions of law so
referred to this Court by the learned single Bench, accordingly.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Revision No. 767 of 2005
Date of Decision: 26.08.2013
State (Food Inspector) ....petitioner
versus
Babu Singh ....Respondent
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE FATEH DEEP SINGH
A complaint under Section 7 (i) read with Section 16 (1)
Clause (a) (i) of the Prevention of Food Adulteration Act, 1954 (for
short 'the Act) was filed by Food Inspector, Union Territory,
Chandigarh, against accused-respondent Babu Singh, milk vendor,
on the averments that on 19.10.2000 at about 08:30 am, the
accused-respondent was in possession of 40 litres of buffalo milk
meant for public sale and the Food Inspector, who has been notified
so and appointed vide Chd.Admn.Gazette Notification No.2828-UTFI
(2)-AH-97/13667 dated 08.10.1997, after necessary formalities had
drawn the sample as per rules after filling Form No.VI, in the
presence of independent witnesses and in due course sample was
sent to the public analyst and was found to be deficient in milk fat byCriminal Revision No. 767 of 2005 2
13% and in milk solids not fat by 31% of the minimum prescribed
standard for buffalo milk, leading to the filing of the complaint before
the learned Chief Judicial Magistrate, Chandigarh, on 31.01.2009. It
was after the accused was served charge sheet to which he had
pleaded not guilty and during the course of trial, an application was
moved on 17.09.2003 for discharge of the accused on the grounds
that the Food Inspector, who had drawn the sample had not
undergone the requisite training and therefore the prosecution was
invalid and sought dismissal of the complaint. The application was
opposed by the State contending that the application was mala fide
as the Food Inspector had undergone proper training and no
prejudice has been caused to the accused-respondent and there was
no legal infirmity in the appointment of Food Inspector or in the
drawing of the samples.
The Court of learned Chief Judicial Magistrate,
Chandigarh, through impugned order dated 24.05.2004 allowed this
application and thereby discharged the accused and which finding
has been impugned in the Criminal Revision No.767 of 2005 by the
State on the strength of the contentions detailed in the revision
petition.
It was subsequent during the hearing of the criminal
revision, the learned Single Bench through order dated 12.04.2013
has referred the matter for decision by larger Bench in the light of
important questions of law arising in the revision petition which have
been enumerated as follows:
1. Whether complainant-Food Inspector, acting as deCriminal Revision No. 767 of 2005 3
facto food Inspector but who had not undergone
requisite training, was competent to purchase the
food article for analysis and could maintain complaint
under the Prevention of Food Adulteration Act, 1954
for prosecution of the respondent accused?
2. Whether the complainant-Food Inspector if held to be
not competent to take sample as Food Inspector,
could be treated as private purchaser of the food
article for analysis under Section 12 of the
Prevention of Food Adulteration Act, 1954 and could
maintain complaint for prosecution of the respondent
accused under proviso to Section 20(1) of the said
Act?
Heard learned counsel for the parties.
It was keeping in view the dire need to have uniformity
regarding standards of food meant for human consumption and in the
light of the rampant adulteration of food stuffs and other such things
a need had arisen for enactment of a Central Legislation, whereby
such articles have been placed in List III i.e.Concurrent List of the
Constitution of India and thereby the Central Legislation by way of
the Act had come into being.
Section 9 of the Act postulates the notification in the
Official Gazette appointing such persons as the Central or State
Governments may deem necessary as they think fit having
prescribed qualifications to be Food Inspectors for such local areas
and assign powers to them stand invested in terms of the Section 10Criminal Revision No. 767 of 2005 4
of the Act. Section 9(2) embodies that a Food Inspector so notified
would be deemed to be a public servant in terms of Section 21 of the
Indian Penal Code, 1860. By virtue of Section 10 confers powers on
the Food Inspector to take sample of any article or food and wayback
in State of U.P. Versus Hanif AIR 1992 SC 1121, it was laid down
that the evidence of the Food Inspector is not to be inherently
suspected nor should be rejected on the ground of lack of any
corroboration as it embodies upon him to draw samples for analysis
as per the rules framed by way of Prevention of Food Adulteration
Rules, 1955. However, at the same time, it is obligatory upon him to
follow the procedure in drawing the samples as per law and which
procedure has been enshrined by way of Section 11 of the Act.
The contentions of Mr.Sandeep Vermani,Amicus Curiae
that the scope of the Act has been made much wider by The
Prevention of Food Adulteration (Amendment), Act, 1986 (70 of
1986) which has come in force from 01.05.1987 empowering any
purchaser of any article of food other than a Food Inspector, a
recognised consumer association etc. from having such food article
analysed by the public analyst subject to certain procedure could not
be controverted on behalf of the accused-respondent. It is not the
case of the accused side that there has been any remiss in drawing
the samples and the only grouse is over the fact that Food Inspector
did not possess requisite training and thus was not competent to
draw such a sample and which has weighed heavily in the mind of
the learned Magistrate as the impugned finding reflects by purely
holding that the Food Inspectors have not undergone proper trainingCriminal Revision No. 767 of 2005 5
in food inspection and sampling work as their training has already
been held to be not as per provisions of Act and Rules, therefore,
these Food Inspectors cannot be held to have taken the sample
properly as it would have taken by a Food Inspector who had
undergone proper training from the proper authority in food
inspection and sampling work. Even if for the sake of arguments as
per the contentions of the counsel for the accused-respondent that
the Food Inspector had not undergone requisite powers but even
then in the light of the allegations that the milk was being sold
publicly have to be used at large, the Food Inspector can be termed
as a purchaser in terms of Section 12 of the Act and there is no bar
to his acting in such a manner and furthermore by virtue of Section
20 of the Act, a prosecution for such an offence under this Act can
be instituted even by such a purchaser after producing a copy of the
report of the public analyst along with the complaint and therefore
even by that scope it would be highly inappropriate as has been held
by the learned court below that prejudice has been caused to the
accused.
It is not contended as to the very appointment of a
Food Inspector and learned counsel for the respondent could not
show how even in the absence of proper training the act of the Food
Inspector in drawing the sample renders it an illegality as the Hon'ble
Supreme Court in his propounding De Facto Doctrine in Gokaraju
Rangaraju vs. State of Andhra Pradesh (1981) 3 Supreme Court
Cases 132 has held that the same has received judicial recognition
even in foreign countries and even if there is any defectiveCriminal Revision No. 767 of 2005 6
appointment but it cannot be permitted to be questioned over the title
of a public servant to his office and the acts done during the
discharge of such office under a colour of unlawful authority cannot
be held to be defective merely on that scope and which is the
proposition laid down in “S.K.Sinha and others vs. Assistant
Collector of Customs and others” 1985 Crl.LJ 1137, “Hamilton
Houswares Pvt. Ltd. vs. Designated Authority, Directorate
General of Anti-Dumping and Allied Duties and others” 2012(1)
Mh.LJ 442, “Madan Lal vs. The Registrar, Co-operative
Socieities, Punjab, Chandigarh” 1995(2) SCT 191, “Jagdish
Singh Walia vs. State of Punjab and others” 2005(3) RCR (Civil)
665, “S.K.Jain vs. State of Punjab (P & H)” 1996(2) SCT 458,
“Tul Par Machine & Tool Company, Faridabad vs. Joginder
Pal, Workman and others” 1983 (2) ILR (Punjab) 357 , “Central
Bank of India vs. C.Bernard”(1991) 1 Supreme Court Cases
319 and “Swatantar Kumar Lamba vs. State of Haryana” 1995
(1) Recent Criminal Reports 546 (P & H) , expressing its opinion in
“Lalchand vs. State of Madhya Pradesh” 1980 (II) FAC 38 (MP)
and “MCD and another vs. Shori Lal”1975 FAC 192 (Delhi) on
similar question as to lack of training by a Food Inspector it was held
that if there is no illegality or irregularity in drawing of the sample then
such a grouse is unsustainable and at the most the Food Inspector
can be treated as a purchaser by way of a private citizen on whose
complaint an accused-respondent can be prosecuted. Answering in
a similar situation, the Hon'ble Supreme Court in “Suresh H.Rajput
etc. vs. Bhartiben Pravinbhai Soni and others etc.”1996 AIRCriminal Revision No. 767 of 2005 7
(SC) 2883 has detailed at length and has held that the qualifications
of Food Inspectors cannot be challenged in collateral proceedings
what is the material is whether the Food Inspector had taken the
samples in accordance with the provisions of the Act or the Rules
made thereunder. Further elaborating that in case the Court finds
that if he committed any contravention what would be its effect on the
prosecution is a matter to be considered but his qualifications cannot
be looked into when he lays prosecution for adulteration of the
articles of food under the Act and similar view has been espoused in
G.Y.Ramekra vs. Rehmanbhai I Ghenchi and others 2005 Crl.LJ
3841 where reliance has been placed on Suresh's case (supra).
Thus, from this established position of law as has been detailed and
discussed above, it clearly stands established that even a Food
Inspector who had not undergone the requisite training was
competent to purchase food articles for analysis and to maintain a
complaint under the Act even as a public servant or in the capacity of
a consumer and, therefore, we answer these questions of law so
referred to this Court by the learned single Bench, accordingly. In
the light of the same, the matter be sent back to the learned single
Bench to proceed ahead into the matter as per law.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
Judge
26.08.2013
neenu
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