At, High Court of Rajasthan Jaipur Bench
By, THE HONOURABLE MR. JUSTICE DEEPAK MAHESHWARI
For the Petitioner: Pankaj Gupta, Advocate. For the Respondent: Rishiraj Singh, P.P.
1. Heard learned counsel for the petitioner as also learned Public Prosecutor appearing for both the respondents.
2. It appears to be peculiar case of non application of mind to the relevant facts right from the beginning till end.
3. This criminal misc. petition has been preferred on behalf of accused petitioner Firm Salud Care India Pvt. Ltd. challenging the order dated 13th March, 2012 passed by learned Additional Chief Judicial Magistrate, Sawai Madhopur taking cognizance for the offence punishable under Section 7/16 of Prevention of Food Adulteration Act, 1954 in brief "(The Act of 1954)" and the order dated 17th December, 2013 passed by learned Revisional Court whereby the revision preferred against the cognizance order was rejected.
4. Learned counsel appearing for the petitioner submits that on bare perusal of the report given by the State Central Public Health Laboratory, Jaipur (Raj.) at annexure-3, it is clear that the report is not conclusive. The public analyst has clearly mentioned that the sample sent to him for analysis is not a "food item", but it is a medicine and so it should be sent for detailed examination to a drug analyst. The only observation made by public analyst in respect of the sample was that it is misbranded, as the green/brown symbol of vegetarian/non-vegetarian food has not been labelled on the sample. Learned counsel further argued that despite the report given by public analyst, no authority has taken care of looking into the contents of the report (Annexure-3). On the complaint filed by Food Inspector Mr. Laxmi Kant Gupta, cognizance was taken by learned trial Court under Order dated 13th March, 2012 in complete absence of application of mind to the facts mentioned in the complaint as also the report given by public analyst. He has also argued that learned Revisional Court in its order dated 17th December, 2013, though has reiterated the arguments advanced by learned counsel appearing for the revisionist but has not at all dealt with them and after simply reiterating the cognizance order passed by learned trial Court has observed that there is no illegality or irregularity in the order impugned and thus dismissed the revision petition. He thus submits that both the orders are liable to be quashed and set aside. In this regard, he has relied upon the judgment of GHCL Employees Stock Option Trust v. Kranti Sinha reported in (2013) 4 SCC 506.
5. Learned Public Prosecutor has opposed the prayer.
6. I Have gone through the report given by public analyst at annexure-3 wherein following observation has been made by him:-
"The sample of protein with vitamins and mineral (Adpro) bearing L(H) A Code & Sl.No. H-3209 is misbranded as the green or brown symbol of vegetarian food or non-veg food respectively has not been labelled. On label there are two warnings (i) to be sold by retail on the prescription of registered medical practitioner (ii) Dosage as directed by Physician; it shows that it is a medician not a food it should be sent for details exam to a drug analyst."
7. It is thus clear that the report is inconclusive and hence clearly states that the sample sent to him is not food item but is a medicine. As per the definition of "food" given in Section 2(v) of the Act of 1954, "food" means any article used as food or drink for human consumption other than drugs and water. It clearly shows that drugs have been excluded from the operation of the provision of the Act of 1954.
8. On perusal of the order dated 13th March, 2012, taking cognizance against the accused petitioner for the offence punishable under Section 7/16 of the Act of 1954, it comes out that no application of mind has been made on the facts mentioned in the report (Annexure-3) as observed by Hon'ble Supreme Court in the case of GHCL Employees Stock Option Trust v. Kranti Sinha (Supra). As the sample sent to the public analyst was not a food item but medicine, which is not covered in "food" as defined in Section 2(v) of the Act of 1954, no cognizance should have been taken by learned trial Court for the offence punishable under Section 7/16 of The Act of 1954.
9. On perusal of the order dated 17th December, 2013 passed by learned Revisional Court, it also shows that the arguments advanced by learned counsel appearing for the revisionist has been mentioned therein which include that learned trial Court has not given any attention to the fact mentioned in the report of public analyst that the substance is not food item but a medicine and which requires to be examined under the Drugs Control Act. Though this arguments has been reiterated by Revisional Court but on perusal of the complete order passed by it, it comes out that no discussion has been made as regards this argument. On the contrary, the argument advanced on behalf of learned Public Prosecutor that the sample is protein food item has been accepted and the order impugned has been upheld. This clearly shows gross non-application of mind of learned Revisional Court in this regard.
10. In view of whatever stated above, it appears to be a clear case of non-application of mind right from the beginning. The report given by public analyst has not at all been considered by learned trial Court as well as learned Revisional Court. The complaint has also been filed by the Food Inspector without giving attention to the contents of the report of the public analyst. There was no basis for learned trial Court to ta
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ke cognizance on such complaint. Further, learned Revisional Court has also failed in applying its mind to the arguments specifically advanced by learned counsel for the petitioner that the sample sent to the public analyst was not a food item but a medicine. In view of this, the order passed by learned trial Court dated 13th March, 2012 as also learned Revisional Court dated 17th December, 2013 deserves to be quashed and set aside in order to prevent the abuse of process of law and is accordingly quashed and set aside. Hence, this criminal misc. petition is allowed. Petition Allowed.