ANIL KULKARNI Vs. STATE OF M P

JUDGEMENT

(1.) THIS revision is filed by the two accused persons challenging order dated 3.1.2001 passed by Chief Judicial Magistrate, Shivpuri in Criminal Case No. 1782/1999, whereby the application filed by the petitioners under section 245 of Code of Criminal Procedure (CrPC for short) has been rejected.

(2.) THE brief facts of the case are that the petitioner No. 1 Anil Kulkarni is the Branch Manager of Hindustan Lever Limited, Food Division, Mumbai and petitioner No. 2 is Manufacturer i.e. Hindustan Lever Limited and respondent No. 3 Santosh is the vendor. A complaint bearing No. 1782/99 is filed by the Food Inspector R.C. Mishra before the C.J.M. Shivpuri alleging that he has taken a sample of Kissan Orange Fruit Kick from the premises of respondent No. 3 Santosh and got it analysed by the Public Analyst. The Public Analyst gave its report on 19.5.1999 holding that the sample was adulterated and thus accused have committed offence under section 7 (i) (iii) read with section 16 (1) (a) (i) of Prevention of Food Adulteration Act, 1954. According to the complaint, a bottle carried a label declaration of MRP Rs. 47/-, Pkd. April 1998 and Batch No. 80304-A3, 700 ml. The said sample was taken from a single bottle of 700 ml. and after opening the sealed bottle divided into three portions. One part of the said sample was sent by registered post A.D. to the Public Analyst of State of Madhya Pradesh at Bhopal. The Public Analyst in his report has noted that the original Company packed bottle was not sent and has opined that sample was adulterated. On the basis of this report, the prosecution was sanctioned against accused persons vide order dated 14.10.1999. It is further stated that on enquiry it was informed by the respondent No. 3 Santosh that said bottle has been purchased by him from M/s. Manish Brothers situated at Shivpuri under Bill No. 23718 dated 8.4.1999. The complainant thereafter visited the shop of M/s. Manish Brothers and prepared a 'Panchnama' on 13.4.1999 and in the said 'Panchnama' it was recorded that M/s. Manish Brothers had sold bottles bearing No. MRP 49.50 and Pkd. January, 1999. It was also found that stock of April 1998 was nil and M/s. Manish Brothers is not made as a party in the criminal proceeding. The statements of complainant were recorded by C.J.M. and charges were framed against the present petitioners for committing the aforesaid offence. Thereafter, an application under section 245, CrPC was filed for quashing the criminal proceedings.

(3.) HOWEVER , after perusing the aforesaid judgments, I find that the judgments of Hon'ble Supreme Court in case of Municipal Corporation of Delhi v. M/s. Baboo Ram Shyam Sunder & others, 1982 (2) SCC 147 and in the case of State of Kerala & others v. Alasserry Mohammed & others, 1978 (2) SCC 386 have not been considered. In all these cases, the Hon'ble Apex Court has laid down that the provisions of Rules 22 and 22-A of the Rules 1955 are not mandatory and directory in nature.