RAKESH PAKE Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Crl. M.P. No. 2434/82 is an application made under Sec. 482 Cr.P.C. to quash all further proceedings in C.C.No. 147/81 on the file of the Court of the 7th Metropolitan Magistrate, Hyderabad. Crl M.P. No. 2435/82 is an application for stay pending disposal of the former application. The facts which emerge from the complaint, the only record made available to this Court, besides ihe copy of the Analyst report, can bs briefly noticed Sri Manjoor Ahmed Khan Food inspector, inspected the premises of one Mangalmal on 30-3-1981 and purchased 1500 grams of 'Kalpa Vanaspathi' from a sealed tin in the presence of mediators. In the said shop, he found a total of 11 tins of Vanaspathi available for sale for human consumption. There was a printed label on the sealed tin of kalpa vanaspathi which has been detached from the sealed tin under due attestation. He divided the 1500 grams of kalpa vanaspathi into three equal parts and placed each part into a clean dry and empty bottle. The firm of Mangalmal produced before the Food Inspector cash bill No. 976 dated 28-3-1981: showing that the said 11 tins of kalpa vanaspathi were supplied by another firms M/s. S.R. Traders, Begum Bazar, Hyderabad. M/s. S.R.Traders were questioned regarding the sale and they, in their turn, furnished information by way of the original invoice dated 27-3-1981, lorry way bill dated 27-3-1981 and lorry supply office receipt dated 27-3-1981 that they received the stockof kalpa vanaspati from the Vijayawada sales depot of M/s. Oswal Oils & Vauaspathi Limited and that the sales depot made the supply in the same condition as was supplied to it by the 2nd petitioner who is the manufacturer of vanaspathi at Madras. M/s. Mangalmal also communicated to the Food Inspector that they do not sell loose vanaspathi but they sell vanaspathi in sealed tins only and that the sample earlier taken by the Food Inspector was from one such sealed tin. One of the samples sent to the Public Analyst was analysed by the Public Analyst, whose report is that the sample contains excessive percentage of free fatty acid and it is, therefore, adulterated. The petitioners did not make available the copies of the correspondence which were referred to in the complaint petition as enclosed thereto. In the complaint petition, the 1st petitioner was described as the nominee and manager of the 2nd petitioner. The analysis report shows that the sample was received by him on 31-3-1981 and the report of the Analyst bears the date 14-5-1981. It does not indicate the date on which the sample was analysed by the Public Analyst. This complaint was taken on file as C C.No.147/81 on the file of the 7th Metropolitan Magistrate, Hyderabad,

(2.) As can be seen from the affidavit filed in support of the petition, there is no dispute that the 1st petitioner is the manager of the 2nd petitioner company. The petitioners have set out various grounds in support of their request to quash the proceedings. Earlier, the petitioners filed Crl. M.P.No.605/82 for the same purpose. That was, however, dismissed on 16-6-1982 on the ground that the various grounds set out in the application are defences that may be available to the petitioners and do not warrant the quashing of the proceedings It is on exactly the same grounds the petitioners hgvc again applied for quashing of the proceedings. It is not, however, disputed that the petitioners could file successive applications for quashing the proceedings. This is made clear by a decision of the Supreme Court in Superintendent and Remembrancer, West Bengal vs. Mohan Singh. It has, therefore, become necessary to advert to the various submissions made in support of the petition by Mr. Sawhney, learned counsel appearing for the petitioners. Some of those submissions appear, ex facie, on the complaint petition itself. In on application filed under Sec. 482 Cr.P.C. the Court should proceed on the hypothesis that the factual allegations made in the complaint petition are correct.

(3.) The first submission made by Mr. Sawhtey is that in respect of a sale of vanaspathi made at Hyderabad, the petitiooers who are residents of Madras and who reside beyond the territorial jurisdiction of the Magistrate at Hyderabad cannot be tried at Hyderabad. Sec. 14 of the PREVENTION OF FOOD ADULTERATION ACT, 1954, in its material terms, provides that no manufacturer shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor, provided that a bill or invoice in respect of the sale of any article of food given by a manufacturer to the vendor thereof shall be deemed to be a warranty given by such manufacturer under that Section. Sec. 14-A of the Act provides that every vendor of an article of food shall disclose to the Food Inspector the particulars of the person from whom he purchased the article of food. Sec.19 of the Act provides for the defences available to a vendor. Among other things, it provided that a vendor shall not be deemed to have committed an offence if he proves that he purchased the article of food from any manufacturer with a written warranty in the prescribed form and that tho article of food while in his possession was properly stored and that he sold in the same state as he purchased it. The complaint proceeded on the footing that the adulteration is attributable to the manufacturer himself and it is on that basis that the complaint is filed against the two petitioners. The submission made by Mr. Sawhney is that inas much as the local vendor at Hyderabad is not being prosecuted, the petitioners who have not sold the vanaspathi to the Food Inspector cannot, therefore, alone be tried before the Metropolitan Magistrate at Hyderabad. He has also calld to his aid the provisions of Sec. 20 A of the Act in support of this submission. Sec. 20-A provides for the power of Court to implead manufacturer in cases where the Court is satisfied on the evidence adduced before it during the trial of any offence alleged to have been comnrtted by any person, that such manufacturer is also concerned with that offence. The sale, according to the complaint, was made by M/s. Mangalmal through its salesman. The Metropolitan Magistrate at Hyderabad would have jurisdiction to take the case on his file, if the complaint wss laid also against M/s Mangalmal or the salesman in question who sold the sample. The Magistrate would have no jurisdiction to take the complaint on his file against the petitioners who manufacture the product at Madras. A defence is not available to the local vendor. That is a matter to be decided by the court and not a matter to be decided by the food inspector. To hold otherwise would result in the manufacturers being asked to take their trial at various places in the country whenever samples taken of vanaspathi manufactured by them are found to be adulterated, even for some acts of commission or omission on the part of persons making retail sales of their product. In M/s. Shivraj Tobacco Company and others vs State of Maharashtra this very ques'ion arose in respect ot a pan masala manufactured by certain Kanpur firms, but samples were taken in different areas in the State of Maharashtra. The learned Judge held :