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M/s. Rewant Hospitality Pvt. Ltd. and Another v/s State of U.P and Others

    Crl.M.Appln.No.24819 of 2007
    Decided On, 08 October 2007
    At, High Court of Judicature at Allahabad
    By, THE HONOURABLE MR. JUSTICE VINOD PRASAD
    For the Appearing Parties: A.K. Trivedi, Advocate.


Judgment Text
1. Heard learned counsel for the applicants and the learned AGA.

2. The applicants are being prosecuted for an offence under S.7/16 of the Prevention of Food Adulteration Act. Three contentions have been raised by the learned counsel for the applicants for the prayer that the aforesaid prosecution of the applicant be quashed.

3. Firstly, he contended that the applicants are running a restaurant business and therefore, there is no sale of the Besan in question which was kept for preparation of eatable in the restaurants. The said contention of the learned counsel for the applicants is bereft of any sound reasoning because Food Inspector after preparation of Form 6 paid the sale price of Rs.21. The said sale to the Food Inspector by itself constitute sale within the meaning of the sale under the PFA Act and is indicative of the fact that Besan was meant for sale. There is no requirement of the law that the sale to the Food Inspector is not covered within the definition of sale under the Prevention of Food Adulteration Act. The first contention of learned counsel for the applicant, therefore, is wholly meritless.

4. The second contention of learned counsel for the applicant is that S.10(7) of the Prevention of Food Adulteration Act has not been complied with as no independent witness has come forward to be a witness of taking sample and sampling procedure. Firstly, the requirement of law is that the Food Inspector should make an endeavour to secure the presence of independent witnesses at the time of taking sample. It is not the requirement of law that unless the independent witnesses are present personally no sample can be taken. The contention of learned counsel for the applicant based on the said reasoning is not acceptable for the simple reason that if the independent witnesses refuse to be a witness of sampling the Food Inspector cannot eschew his legal responsibility of taking the sample. He has only to make an endeavour to secure the presence of independent witness but if they are not available or are not ready to be witness then taking of sample cannot be eschewed. Duty to take sample is not dependent upon disinterestedness and non availability of independent witness. Further in the present case the Food Inspector has mentioned that he had made efforts to secure the presence of independent witnesses but they refused to divulge the name and address and to be a witness of procedure of taking sample. For the twin reasons above the second contentions of the learned counsel for the applicant is also repelled.

5. Learned counsel for the applicants thirdly contended that cognizance has been taken to the same day on which the complaint was filed. The said argument is unmerited and is repelled without any further discussions because as soon as the complaint is filed the Magistrate is bound to register it and take cognizance if it discloses an offence.

6. Learned counsel for the applicant has relied upon judgment of the Apex Court reported in Municipal Corporation of Delhi v. Laxmi Narayan, AIR 1976 SC 621 : 1976 (1) SCC 546 : 1976 SCC (Cri) 76 : 1976 CriLJ 547 : ILR 1976 Kant 897 : 1976 (2) SCR 1050 : 1976 Mad LJ (Cri) 456. In the aforesaid judgment the Apex Court has taken a view that storage of the food articles which is not meant for the purpose of sale is not covered within the definition of ‘sale’. The Food Inspector will not be competent under the law to take sample of such an article and even if such sample is found to be adulterated even then no prosecution can be validly launched. The aforesaid ruling is of no help to the learned counsel for the applicants in the present case for the simple reason that the applicant has made a sale of the article of food to the Food Inspector. Moreover, he is running a restaurant business and since the restaurant inc

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ludes sale of food article it cannot be said that the sample was taken from a person who was not indulging into business of purchase and sale of food articles. Therefore, the said ruling does not farther the case of the applicant. The Supreme Court has itself held that sale to the Food Inspector is a sale within the meaning of the Act. Because of the aforesaid discussion, this application is meritless and hence, it is dismissed.
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