Brij Mohan vs State of Punjab

K.S. Tiwana, J.—Brij Mohan Petitioner is a kulfa seller of Jullundur Cantt. On 20th October, 1976, Mr. Tejinder Singh Food Inspector, wont to his shop and purchased 600 grams of kulfa on payment of Rs. 3/-. The purchased quantity of Kulfa was devided into three equal parts and each part was put into a clean and drybottle. Two drops 40/- formaline per ounce were added as pre-sevrative. One sample was sent to the Chemical Examiner for analysis. The public Analyst on examination found the sample to be adulterated as the quantity of fat was less than the prescribed. On the basis of the report of the Public Analyst, prosecution in the Court of Judicial Magistrate. First Class, Jullundur, was launched against the Petitioner.

The Petitioner has come to this Court u/s 422 of the Code of Criminal Procedure 1973 for quashing the proceedings against him, on the ground that Rule 22 of the Prevention of Food Adulteration Rules which prescribes that minimum quantity of 300 grams of ice-cream and mixed ice-cream should be sent to the Public Analyst. In this case, according to the Petitioner, the quantity collected by the Food Inspector was less than the provided by the statutory rules framed under the Prevention of Food Adulteration Act and the Public Analyst could not have a proper examination of the foodstuff sent to him.

Notice of this petition was given to the State, which has not filed any reply to the petition.

Rule A. 11.02.08 of Appendix B of the Prevention of Food Adulteration Rules 1955 defines Ice Cream Kulfi etc. as under:-

ICE-CREAM, KULFI, KULFA AND CHOCLATE ICECREAM mean the forzen product obtained from cow or buffalow milk or a combination thereof or from cream, and/or other milk products, with or without the addition of cane sugar, eggs, fruits, fruit juices, preserved fruits, nuts, choclate, edible flavours permitted food colours It may contain permitted stabilizers and em-ulsifiers not exceeding 0.5 per cent by weight. The mixture shall be suitably heated before freezing. The product shall contain not less than 10.0 per cent milk fat, 3.5 per cent protein and 36.0 per cent total soids, ex-cept that when any of the aforesaid preparation contains fruits or nuts or both, the content of milk fat may be proportionately reduced but shall not be less than 8.0 per cent by weight.

According to entry at Serial No. 22 of Rule 22 of the Prevention of Food Adulteration Rules 1955, approximate quantity to be supplied to the Public Analyst of the foodstuffs is provided as 300 grams for icecream and mixed ice-cream. The Food Inspector had purchased 600 grams of kulfa, and the sample which was examined by the Public Analyst came to weigh only 200 grams, because the Food Inspector divided the purchased sample of kulfa into three seprate equal parts before sending the same for analysis. By this shortage taking of the sample the Food Inspector violated the statutory provisions of the rules.

Under similar circumstances in ajeldas Rajaldas Gurunamal Pamanani Vs. The State of Maharashtra, . it was held as under:-

The Appellant also contended that samples were not taken in accordance with the provisions 6f the Act and the rules there under. Rule 22 states that in the case of asafcotida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafcotida 200 grams. The Public Analyst did not have the quantitities mentioned in the Rules for analysis. The Appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quality for analysis is not permitted by the statute.

In Criminal Misc. 200-M of 1976 (Kapil Kumar Jain v. State of Punjab)...............2 decided on 28th January, 1976, the proceedings launched against Kapil Kumar Jain were quashed by Pattar, J., of this Court on the ground that in place of 500 grams, only 200 grams of Vanas-pati Ghee was sent as sample for examination to the Public Analyst.

In view of these two authoritative pronouncements of the Supreme Court and this Court, the learned State Counsel did not object to the acceptance of the petition and the quashing the proceedings. As the Food Inspector violated the statutory provisions and the sample sent by him of 200 grams of kulfa was short by about 100 grams, the definite and purposeful result could not be reached by the Public Analyst. For these reasons the proceedings which are pending against Brij Mohan Petitioner in the court of Judicial Magistrate. First Class, Jullundur, are hereby quashed.