Ragendra Swarup vs State of U.P. and Others

R.R.K. Trivedi and M.C. Jain, JJ.—Petitioner in this petition has prayed for a writ or direction in the nature of certiorari quashing the First Jnformation Report dated 26.7.1999. (Annexure XII), registered at Police Station Chaubepur, district Kanpur, Nagar as case Crime No. 186 of 1999, under Sections 7(2)/16(9) of the Prevention of Food Adulteration Act, 1954 read with Rule 9A of the Rules framed thereunder and Sections 272 and 273 of Indian Penal Code and First Information Report dated 26.7.1999 (Annexure XI) registered at Police Station Mahanagar, Lucknow as case Crime No. 410 of 1999, u/s 272/273 of Indian Penal Code and also to quash the complaint case pending in the Court of 1st Judicial Magistrate (Economic Offence), Lucknow as communicated vide letter No. PFA/96/99/69 dated 22.07.1999 (Annexure-1). Petitioner has also prayed for a writ or direction in the nature of mandamus directing the respondents not to proceed against the Petitioner including his arrest on the basis of the aforesaid First Information Report (Annexures-XI and XII) and the complaint case.

The facts necessary to appreciate are that Petitioner, Ragendra Swarup is Managing Director of M/s. Swatantra Estates Private Limited, 15/54-A, Civil Lines, Kanpur which is private limited company incorporated under the provisions of Companies Act, 1956. This company has a unit known as Dhara Milk Scheme situated in village Sandila, Bithoor, Kanpur Nagar. This unit is engaged in procurement, processing and packing in poly-bags and sale of standardised milk, toned milk and skimmed milk. The sale of milk is carried out by the company in the name and style of Dhara milk. It is claimed that per day sale of milk is around 8000 litres. It is also claimed that milk for the aforesaid business is procured from various producers and farmers living mostly in remote rural areas falling in districts Unnao, Fatehpur, Lucknow and Kanpur Dehat. The milk is collected at various centres. After collection, it is brought to a unit at Sandila and thereafter treated scientifically in costly plants and machinery. On 18.5.1999, Food Inspector of Nagar Nigam, Lucknow purchased three samples consisting of one poly-bag of skimmed milk weighing 250 gms., one poly-bag of full cream milk weighing 500 gms. and one poly-bag of toned milk weighing 500 gms. The samples of skimmed milk and full cream milk were sent to the Public Analyst U.P., Lucknow for his report. Public Analyst gave his Report No. 5006 dated 23.6.1999 (Annexure-VI) regarding skimmed milk. According to this report on analysis, the sample of skimmed milk was found positive for presence of urea and glucose which is prohibited and amounts to adulteration of food article under Rule 44(1) of Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules). In respect of the sample of full cream milk, Public analyst gave Report. No. 5005 dated 25.6.1999 (Annexure-III) wherein the opinion of the Public Analyst was that in the sample contents of milk fat and solid fat were found deficient and presence of carbonate/neutraliser was found positive. Thus, sample was adulterated in contravention of Rule 44(1) of the rules. On receipt of the aforesaid report of the Public Analyst, the impugned First Information Report (Annexures-XI and XII to the writ petition) were lodged as mentioned above.

Along with writ petition, Petitioner filed extracts from Manual of Methods of Tests and Analysis of Milk and Milk Products compiled by Food Safety and Analytical Quality Control Laboratory, Central Food Technological Research Institute, Mysore, Outlines of Dairy Technology by Sukumar De, Dairy Technologist�s Handbook by D. Ramasamy, etc. Besides aforesaid material, Petitioner also filed three supplementary affidavits containing the extracts from various other research work carried out by Agricultural Centres of the country including some from abroad.

On behalf of the respondents, two counter-affidavits have been filed resisting the claim of the Petitioner. The Petitioner has also filed rejoinder-affidavits.

While hearing of this writ petition was in progress, Anr. Division Bench of this Court gave judgment dated 21.8.1999 deciding the bunch of writ petitions involving similar questions. We have perused the judgment of the Division Bench and, in our opinion, all substantial questions of law involved in the present petition have already been answered. We are in respectful agreement with the view taken by the Division Bench.

Learned Counsel for the Petitioner, however, submitted that on 5.8.1999, a meeting was held under the Chairmanship of Shri Sompal, Minister of State for Agriculture which was attended by 16 other persons representing Government of India, State of U.P., National Dairy Research Institute, Karnal and various other bodies connected with milk and milk product. In this meeting, a decision was taken to constitute Multi-disciplinary Committee to study the range of naturally occurring constituents of milk in milch animals. On the basis of minutes of the meeting, Learned Counsel submitted that at present no limit has been prescribed under the Prevention of Food Adulteration Act for the presence of urea and other naturally, secreted constituents. The committee has been constituted on 11.8.1999 and it has been desired to submit its report within three months. The terms of the reference of the committed are as under :

(a) to examine the range of different constituents of milk secreted naturally by milch animals ;

(b) to examine the factors influence the level of naturally secreted constituents in the milks ;

(c) to recommend the permissible limits of naturally secreted constituents in clean milks ;

(d) to recommend standard procedures for the collection of milk samples and their preservation ;

(e) to recommend standard methodologies for testing samples of milk ; and

(f) to recommend amendment to the Prevention of Food Adulteration Act, 1954.�

Copies of the minutes of the meeting dated 5.8.1999, order dated 11.8.1999 of Government of India constituting Multi-disciplinary Committee and order dated 11.8.1999 containing terms or reference of the committed have been filed as Annexures-I, II and III respectively to the supplementary affidavit dated 23.8.1999 filed by Jitendra Sharma.

Learned Counsel for the Petitioner has submitted that on perusal of the minutes of the committee and decision taken by it, it is clear that there is total uncertainty about the permissible limit of urea in the milk and the criminal prosecution in this stage of uncertainty is wholly illegal and arbitrary. Inviting our attention to the report of the Public Analyst, Learned Counsel has submitted that presence of urea in milk, as its natural constituent is an accepted fact as is clear from various reports of the scientists. The report of the Public Analyst only indicates the presence of urea in the alleged test of the sample but it does not disclose any limit that may amount to offence requiring prosecution. Learned Counsel has further submitted that it is admitted position in Food Adulteration Act, 1954 and the rules framed thereunder that no limit has been prescribed regarding presence of urea in the milk beyond which it may be said that particular sample of milk has been adulterated by presence of urea. Learned Counsel for the Petitioner has also placed before us report of the police dated 11.8.1999 filed as Annexure-2 to the rejoinder-affidavit which shows that on 11.8.1999 search was conducted of the premises of Dhara Milk Scheme Factory but nothing objectionable could be found there. On the basis of the aforesaid submission, Learned Counsel submitted that there is no material on record on which basis it may be said that any criminal offence has been committed by the Petitioner and First Information Reports are liable to be quashed. In alternative, Learned Counsel has submitted that Petitioner is at least entitled for a direction to keep prosecution and arrest of the Petitioner in abeyance for the period of three months and till the report is submitted by Multi-disciplinary Committee constituted by Central Government on 11.8.1999.

Relying on the judgment of Hon�ble Supreme Court in the case of Joginder Kumar Vs. State of U.P. and others, . it has been submitted that as the prosecution does not possess any material showing that Petitioner has committed any offence, Petitioner is at least entitled for a direction against the respondents not to arrest him. For this submission, reliance has been placed in para 2 of the counter-affidavit filed by Gajendra Pal Singh. Shri V.B. Singh, Learned Counsel for the Petitioner after referring several reports also submitted that urea is not noxious substance, on the other hand, it is natural constituent of the milk and mere presence of urea in the milk cannot cause any injury to human life.

Shri P.M.N. Singh, Additional Advocate General appearing for State of U.P. submitted that it is a matter of inquiry and investigation during trial of the offence by the Court as to whether the presence of urea found in the sample by the Public Analyst amounted to noxious substance which could be harmful and injurious to human health. It is submitted that any interference at this stage by the Court shall jeopardise the effort of the State to eradicate the threat caused to the society in general by mixing harmful substances like urea in the food item like milk. Learned Additional Advocate General placed reliance on various opinions of the scientist that presence of urea beyond certain limit may cause serious harm and injury to human health. It was also contended that it is not correct to say that urea is not noxious and may not cause any harm to human health. Learned Additional Advocate General also submitted that Petitioner cannot claim any immunity from arrest which is natural consequence and part of the investigation if Petitioner�s involvement is found in a criminal offence. For this purpose, reference has been made to Sections 41, 173, 207 and 209 of Criminal Procedure Code. With regard to the notification dated 11.8.1999 of the Government of India, it is submitted that adulteration of any article of food or drink so as to make such article noxious is an offence u/s 272/273 of Indian Penal Code and operation of the aforesaid provisions and prosecution thereunder cannot be superseded or suspended on the basis of the alleged exercise on the part of the Ministry of Agriculture to obtain reports from Multi-disciplinary Committee which appears to be confined and directed for bringing some amendments in the provisions of Food Adulteration Act, 1954 and the rules framed thereunder. Learned Counsel has submitted that no interference is called for by this Court under equity jurisdiction under Article 226 of the Constitution of India so as to help the Petitioner who is prima Jacte guilty of committing offence of adulterating food item like milk.

We have carefully considered the rival submissions of Learned Counsel for the parties. The Division Bench in judgment dated 21.8.1999 has dealt with this question in detail. Relevant part of the judgment is being reproduced below :

We may come to the individual cases now. In Crl. Misc. Writ Petition No. 4186 of 1999. Shamshad v. State of U.P. and Ors., the milk that was allegedly recovered from the Petitioner was analysed by the public analyst and the report indicates that the milk fat and milk solid were far below the required standard. There was reported presence of carbonate, neutraliser and urea. It was alleged in the F.I.R. that presence of urea and carbonate was injurious to human health. In this context, a photo copy of the �OUTLINES OF DAIRY TECHNOLOGY� by Shri Sukumar De was placed before us and our attention was drawn to page 12 of the treatise which gave a detailed composition of milk. It was pointed out that nitrogenous materials including urea are to be found in milk. The Learned Counsel contended that unless the percentage of urea was Indicated, the milk might not to be held �noxious as food or drink� and as such a prosecution for Sections 272 and 273, I.P.C. would not lie. In answer to this submission, learned Additional Advocate General also took pains to refer to different books to indicate what are the normal constituents of milk. Milk, as normally consumed, is a secretion from the mammary glands of cows, she-buffalo and like any other secretion in living bodies, presence of certain biochemical materials is a must, but if such chemical is added, certainly it would be an adulteration and the question whether by such addition, the milk or food became noxious as such would be a question of fact to be determined only by investigation. It would not be proper for this Court to say, therefore, that a particular sample of milk was or was not adulterated.

It is true that the minutes of the meeting held on 5.8.1999 and consequential orders dated 11.8.1999 were not before the Division Bench but, in our considered opinion, the aforesaid material does not make any difference and we do not feel that any different view is required to be taken. Sections 272 and 273 of Indian Penal Code are statutory provisions having long existence in the statute book. If a prosecution is launched for alleged contravention of the aforesaid provisions, the Court will be required to ascertain the fact as to whether an � article of food or drink has been adulterated so as to make such article noxious as food or drink and further that such article or food was intended for sale or with the knowledge that it may likely to be sold. Thus, the Court trying the offence will determine on the basis of the material placed before it, the matter of fact whether the article of food or drink was adulterated so as to make it noxious. The obligation on the part of the Court to determine the aforesaid factual aspect is not in any way reduced or affected by the alleged exercise on the part of the Ministry of Agriculture. Thus, the Petitioner cannot claim any advantage on the basis of the aforesaid material. We are conscious of serious hazard with which the society as a whole is confronted with, namely, the adulteration in food item like milk which forms backbone of the general health of the society right from the childhood. Any serious probe by this Court into this contentious issue may seriously prejudice the case of the parties which they will take at the time of trial. For the aforesaid reasons, we express our disinclination to record any finding on the arguments raised by the Learned Counsel for the parties. In our opinion, the present proceedings under Article 226 of the Constitution of India cannot be used for determining the questions, which shall ultimately be determined by the trial Court on the basis of the material produced before it. Thus, we do not find the Petitioner entitled for any relief.

For the reasons stated above, we do not find it a fit case for this Court to interfere at this stage. The writ petition is accordingly dismissed.