Saumindra
Bhattacharya Vs. State of Bihar and ANR. [2009] INSC 1564 (10 September 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 569
OF 2003 SAUMINDRA BHATTACHARYA .......APPELLANT(S) Versus
O R D E R
1.
This appeal arises out of the following facts:
2.
On 6th April, 1999, the complainant Ajay Paul, an advocate by
profession, purchased three bottles of Limca from a retailer at village Digha.
One of the bottles was opened by the complainant and on consuming the same, he
fell sick, vomitted several times, felt nauseated, had loose motions and had to
spend a sum of Rs.3,000/- on medicines etc. The complainant also examined one
of the bottles of Limca which remained unopened and found that it contained
several dust particles. The complainant thereupon served a notice dated 9th
April 1999 by registered post on the three accused, accused No.1 being the
President of M/s. Coca Cola India, accused No.2 the Consumer Affairs
Coordinator and accused No.3 the Manager of M/s. Bharat Coca Cola Bottling
North East Pvt. Ltd. Patna alleging that he had been caused injury on account
of consumption of adulterated Limca. The complainant received a reply from the
accused and it was pointed out there in that several such complaints had been
received from other sources as well, and it appeared that Limca was being adulterated
by some unscrupulous elements and an enquiry was going on in this connection.
Dissatisfied with the said reply, the complainant filed a complaint under
Sections 2, 16, 17 of the Prevention of Food Adulteration Act, 1954, hereinafter 'the Act' for short, read with Section 320 of
the IPC. The complainant and three other witnesses were examined by the
Magistrate. In the meanwhile, the report of the Public Analyst, Bihar, Patna
was received and was also appended by the complainant and cognizance was duly
taken by the magistrate. These proceedings were challenged by the accused under
Section 482 of the CrPC. The High Court, vide the impugned judgment, has
quashed the proceedings qua accused Nos.1 and 2 but has dismissed the petition
with respect to the Manager, accused No.3. Accused No.3 is before us in the
present appeal.
3.
Mr. Ashok Desai, the learned senior counsel for the appellant, has
raised only one argument during the course of hearing. He has pointed out that
the Act itself provided a specific means and method whereby a complaint by a
private party relating to food adulteration had to be entertained and in the
absence of the stipulated procedure having been followed, the Magistrate was
not justified in even entertaining the complaint. In this connection, he has
referred us to Sections 11, 12 and 20 of the Act.
4.
We find that the complainant, though served, is not before us but
Mr. Gopal Singh, the learned counsel for the State of Bihar, though
handicapped, has pointed out that if a rigid view was taken about the manner in
which proceedings under the Act were to be initiated by a private party, it
would be virtually impossible to keep the manufacturers or dealers within the
four corners of the law as they would have a carte blanche in carrying on with
their nefarious activities. He has also submitted that after the report of
Public Analyst had been appended, any lacuna which may have been earlier
present had been filled in and the Magistrate had rightly taken cognizance of
the matter.
5.
We have considered the arguments advanced by the learned counsel.
Sections 12 and 20 are reproduced below:
"12.
Purchaser may have food analysed. - Nothing contained in this Act shall be held
to prevent a purchaser of any article of food other than a food inspector or a
recognised consumer association, whether the purchaser is a member of that
association or not, from having such article analysed by the public analyst on
payment of such fees as may be prescribed and from receiving from the public
analyst a report of his analysis:
Provided
that such purchaser or recognised consumer association shall inform the vendor
at the time of purchase of his or its intention to have such article so
analysed;
Provided
further that the provisions of sub-section (1), sub-section(2) and sub-
section(3) of section 11 shall, as far as may be, apply to a purchaser of
article of food or recognised consumer association, who or which intends to
have such articles so analysed, as they apply to a food inspector who takes a
sample of food for analysis;
Provided
also that if the report of the public analyst shows that the article of food is
adulterated, the purchaser or recognised consumer association shall be entitled
to get refund of the fees paid by him or it under this section.
xxx xxx
xxx xxx
20.
Cognizance and trial of offences.- (1) No prosecution for an offence under this
Act, not being an offence under section 14 or section 14A shall be instituted
except by, or with the written consent of, the Central Government or the State
Government or a person authorised in this behalf, by general or special order,
by the Central Government or the State Government;
Provided
that a prosecution for an offence under this Act may be instituted by a
purchaser or recognised consumer association referred to in section 12, if he
or it produces in court a copy of the report of the public analyst alongwith
the complaint.
(2) No
court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of
the first class shall try any offence under this Act.
(3)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974), an offence punishable under sub-section (1AA) of section 16 shall be
cognizable and non-bailable."
Section
12, inter alia, provides that a purchaser may have a food product analysed and
for that purpose may submit the food sample to a public analyst but before
doing so he has to inform the vendor at the time of purchase that he intends to
have the article analysed. The second proviso further states that the procedure
prescribed in sub-Sections (1), (2) and (3) of Section 11 would be applicable
to such purchase and taking of samples as well.
We find
from the record that there is no averment whatsoever in the complaint or even
in the evidence adduced by the complainant that the provisions of Section 12
and the two provisos in particular had been complied with or the sample which
was required to be sealed and kept in the manner required by Section 11 had
been kept in that way.
We also
notice that the proviso to Section 20 is categoric and brooks no ambiguity in
that a prosecution for an offence under the Act can be instituted by a
purchaser only if the report of the public analyst is produced along with the
complaint.
6.
We are, therefore, of the opinion that even assuming that some
report of the public analyst had been put on record during the pendency of the
complaint before the Magistrate, this factor will not cure the defect under
Section 20 as the very institution of the complaint without the report of the
public analyst was not authorised in law. has been held:
7.
"that where a power is given to do a certain thing in a
certain way the thing must be done in that way or not at all. Other methods of
performance are necessarily forbidden." and further "it would be an
unnatural construction to hold that any other procedure was permitted than that
which is laid down with such minute particularity in the sections
themselves."
8.
The observations aforesaid are extremely relevant to the facts of
the present case. A very detailed procedure has been prescribed under which the
samples are taken and handled (Section 11) and then as to how the complaints
etc.
are to be
filed and entertained by the Magistrate (Ss.12 & 20). The procedure
prescribed must, of necessity, be adopted without any departure.
9.
We are, therefore, of the opinion that the order of the High Court
cannot be maintained. We, therefore, allow the appeal and quash the proceedings
against accused No.3 as well.
..........................J. ( HARJIT SINGH BEDI )
..........................J.
New Delhi;
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