ANIL KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner who alongwith his shop M/s Anil Industries is sought to be prosecuted in Lakhisaria P.S. Case No. 405 of 2007 registered under Sections 270, 273 and 420 I.P.C. and Section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") has prayed for the quashing of the order dated 2.1.2008 passed therein by the learned Additional Chief Judicial Magistrate, Lakhisarai, whereby he has rejected the petition filed on behalf of the petitioner for release of the Khesari Dal on the ground that the seized article is an exhibit of the case. It appears that the Food Inspector, Lakhisarai, submitted a written report before the Officer Incharge, Kawaiya O.P., Lakhisarai, to the effect that on 24.8.2007 he had inspected the premises of M/s Anil Industries and found installed therein a Dal manufacturing machine and Khesari products like Arhar Dal were found stored therein and since the firm did not have a license for food stuffs, the said articles were seized. It is further submitted that the State Government by a Notification No. 1239(15) dated 27.9.2002 had prohibited trade of Khesari under the provisions of the Act and Rules.

(2.) THE impugned order was sought to be assailed on the ground that the Notification dated 27.9.2002 issued by the State Government in the Department of Health under the provisions of R.44A of the Prevention of Food Adulteration R.not having been published in the Official Gazette till date cannot have any effect in the eye of law and the reference thereto by the Food Inspector and seizure of the Khesari Dal on the basis of such Notification was not only illegal but was also unwarranted. It has further been submitted that in Criminal Misc. No. 25742 of 2004 disposed of on 25.11.2005 this Court held that no Notification had been issued by the State Government banning trade/manufacture of Khesari Dal in the State of Bihar and Section 20 of the Act prohibited filing of any F.I.R. without proper sanction from the Central Government or the State Government or a person authorized in this behalf by the State Government. It was also submitted that the First Information Report did not disclose the specific day and time of the commission of the alleged offence. It is further submitted that sale of Khesari Dal is banned vide Notification No. 1239(15) dated 27.9.2002 for human consumption but the sale thereof was not banned for the consumption by cattle and, therefore, the petitioner was fully justified in storing the same and the taking of cognizance by the learned Magistrate was an apparent error on the face of the record. On the aforesaid premise, it was submitted that the prosecution of the petitioner under Sections 270, 273 and 420 I.P.C. was wholly illegal and the abuse of the process of the court, more so when in view of the settled principles of law there is a special Act enacted for a particular purpose will have preference over the general law.