Swatantar Kumar Lamba vs State of Haryana

N.K. Kapoor, J.

This order will dispose of Cri. Misc. Nos. 3566M and 3568M of 1993.

Petitioners seek quashing of the complaint and the resultant proceedings pending in the Court of Chief Judicial Magistrate under the Prevention of Food Adulteration Act, 1954.

According to the petitioners samples of Paneer/Butter were taken from the premises of Kwality Restaurant, Panchkula, by Food Inspector Ram Singh on 21.9.1992. On receipt of report of the Public Analyst, complaint, Annexure P1, alongwith report of the Public Analyst, Annexure P2, was instituted in the Court of the Chief Judicial Magistrate, Ambala. In complaint petitioner No. 1 has been impleaded as accused being the proprietor and petitioner No. 2 as Manager of Kwality Restaurant. On the institution of complaint, trial Magistrate issued process of the Court to the petitioners, which order being challenged on the ground firstly that no offence is made out against the petitioners and secondly the cognizance of the complaint could not be taken by the trial Court on the grounds that (i) Shri V.P. Harnal, the Public Analyst, was not a qualified Public Analyst within the meaning of Rule 6 of the Prevention of Food Adulteration Rules, 1955; (ii) Shri V.P. Harnal has been appointed as a Public Analyst with retrospective effect from 6.12.1979 for the State of Haryana vide notification dated 11.11.1991; (iii) Shri V.P. Harnal has not been declared to be qualified for appointment as Public Analyst by a Board appointed and notified the Central Government for such purposes as per requirement of Rule 6(b) of the Prevention of Food Adulteration Rules, 1955; (iv) the retrospective appointment of Public Analyst, w.e.f. 6.12.1979 has been made so as to bring him within the proviso of Rule 6 of the Prevention of Food Adulteration Rules; (v) its retrospective appointment is not permissible, it being a statutory appointment; (vi) no local area has been assigned to Shri V.P. Harnal as required under Section 8 of the Prevention of Food Adulteration Act; (vii) in a printed proforma of the complaint, names and other particulars have been inserted which practice has been deprecated by a Division Bench of this Court; (viii) Kwality Restaurant from where the sample is alleged to have been taken is a company within the meaning of section 17 of the Act. Petitioner No. 1 Shri S.K. Lamba could not have been arrayed as an accused in the complaint as according to section 17 of the Act any person who was incharge and was responsible to Company for the conduct of the business of the Company can be said to be guilty of the offence and so was liable to be proceeded against. This way the petitioner No. 1 has been wrongfully impleaded as a proprietor. Complaint nowhere mentions whether petitioner No. 1 was incharge of and responsible to the Company for the conduct of daytoday business. Complaint is liable to be quashed on this ground alone; and (ix) Company has not been impleaded as a party.

4 Pursuant to the notice issued by the Court, reply has been filed.

Justifying the appointment of Shri V.P. Harnal, it has been stated that he fulfils the necessary qualifications. His appointment to the post of Deputy Analyst is in accordance with the Rules and he was fully competent to analyse the sample. The Government vide notification dated 11.11.1991 in exercise of its powers under Section 8 of the Prevention of Food Adulteration Act, 1954 appointed Shri V.P. Harnal, Deputy Public Analyst, Haryana to be Public Analyst w.e.f. 6.12.1979 for the whole of the State of HaryanaAnnexure R1. Thus, there is no infirmity in his appointment as Public Analyst. In view of the notificationAnnexure R1, he was Public Analyst as on 6th day of December, 1979 and so the report submitted by him cannot be faulted. Reference was made to the writ petition filed by Shri V.P. Harnal claiming seniority as Analyst which came up for consideration before the Court on 28.7.1988 and was disposed of with a direction to the State Government to consider his claim to be promoted to the post of Analyst/Deputy Public Analyst from the date his junior Shri Rohilla Chemist belonging to the same speciality was given promotion. It is to meet this genuine grievance of Shri V.P. Harnal that on the basis of the High Court decision, he was given promotion as an Analyst from 7.10.1966 and Deputy Public Analyst from 6.12.1979, vide order dated 17.1.1989Annexure R2. It has been specifically denied by the respondents that Shri V.P. Harnal did not possess the requisite qualifications as per Rules 6(b) of the Prevention of Food Adulteration Rules, 1955. It has also been stated that Shri V.P. Harnal was appointed as a Public Analyst for whole of the State of Haryana, so there was no need to appoint him for a particular area as alleged in the petition. Other averments made in the petition have also been denied.

After briefly enumerating the various points taken in the petition (noticed in the earlier part of the judgment) counsel confined his submissions to the following :

(1) That Shri V.P. Harnal did not possess the requisite qualifications as prescribed under Rule 6 of the Prevention of Food Adulteration Rules, 1955.

(2) That appointment of Shri V.P. Harnal vide notification dated 11.11.1991 is retrospective in operation.

(3) That petitioner No. 1 has been unjustly made an accused on the ground that he is a proprietor of M/s Kwality Restaurant whereas Kwality Restaurant is a company and per se there is no averment in the complaint that petitioner No. 1 was incharge and was also responsible to company for the conduct of the business.

Elaborating, the counsel urged that Shri V.P. Harnal did not possess the qualifications prescribed vide Rule 6 of the Prevention of Food Adulteration Rules, 1955. He also cannot be considered to be a Public Analyst on the date of commencement of the Prevention of Food Adulteration (Amendment) Rules, 1980, nor a person who had been working as a Public Analyst for a period of three years before such commencement. This being the position, Shri V.P. Harnal did not possess the requisite qualifications and thus on this ground alone, the present petition deserves to be allowed. The next submission of the learned counsel for the petitioners is that as per the case of the respondent even Shri V.P. Harnal has been appointed as a Public Analyst with retrospective effect w.e.f. 6.12.1979 vide notification dated 11.11.1991, Annexure P3. Such a retrospective appointment to a post is legally unsustainable. In fact, it is a clumsy attempt to bring the case of Shri V.P. Harnal within the proviso to Rule 6 of the Prevention of Food Adulteration Rules, 1955 as his case was not covered in terms of proviso to Rule 6 for the reason that he had not worked as a Public Analyst for a period of three years. Since he was not a Public Analyst at the time of the commencement of the Amended Rules in the year 1980, the retrospective appointment cannot take away the effect of this legal infirmity.

In respect of last submission, counsel made a pointed reference to ground No. 11 in the petition wherein it had been specifically averred by the petitioners that Kwality Restaurant is a Company within the meaning of Section 17 of the Act. As per Section 17 when an offence as been committed by a Company, the person incharge of and responsible to the Company for the conduct of the business of the Company is deemed to be guilty of the offence and is liable to be proceeded against. Complaint no where mentions that petitioner No. 1 was incharge of and was responsible to the Company for the conduct of daytoday business. In reply this subpara has been simply denied. It was thus argued by the counsel that in view of the emphatic assertion made by petitioner No. 1 that he was neither incharge of nor responsible to the Company for its daytoday business is by itself sufficient to conclude that he could not be arrayed as an accused.

The learned Assistant Advocate General, Haryana, in support of maintainability be complaint urged that Shri V.P. Harnal''s claim to be promoted on the basis of seniority and merit was allowed by this Court, wherein a direction was issued to the department to consider his claim to the post of Analyst/Deputy Public Analyst subject his record being good, from the date when his junior belonging to the same speciality was given promotion. With this direction of the Court, department examined the case of Shri V.P. Harnal and he was given promotion as Analyst w.e.f. 7.10.1966 and as Deputy Public Analyst from 6.12.1979, vide order dated 17.1.1989. In terms of order dated 17.1.1989 vide notification dated 11.11.1991, Governor of Haryana was pleased to appoint Shri V.P. Harnal as Public Analyst w.e.f. 6.12.1979. It was further urged that Shri V.P. Harnal has been appointed as Public Analyst for whole of the State of Haryana. Thus, there was no need for his appointment for a particular area. It was thus maintained that the present petition is wholly devoid of any merit and deserves to be dismissed, which has been solely filed to delay the pending proceedings.

I have heard the learned counsel for the petitioners as well as Assistant Advocate General, Haryana and perused the relevant documents referred to by the respective counsel.

Primary submission of the learned counsel for the petitioners is with regard to the appointment of Shri V.P. Harnal as a Public Analyst, vide notification dated 11.11.1991 whereby he has been conferred powers of Public Analyst w.e.f. 6.12.1979 for the whole of the State of Haryana and secondly that he could not be appointed as a Public Analyst as he did not possess the requisite qualifications as prescribed under Rule 6 of the Prevention of Food Adulteration Rules, 1955. Section 8 of the Prevention of Food Adulteration Act, 1954 empowers the Central Government or the State Government to appoint by notification in the official gazette such persons as it thinks fit having the prescribed qualifications to be a Public Analyst for such local areas as may be assigned to it. Similarly, Section 9 empowers the Central or the State Government by notification in the official gazette to appoint such persons as it thinks fit having the prescribed qualifications to be Food Inspectors for such areas as may be assigned to them. Shri V.P. Harnal was appointed as a Chemist on 14.10.1960. Since, he had been denied promotion, he successfully challenged the same in the High Court and a direction was given by the Court to consider his case and to give him the necessary promotion with effect from the date his juniors were promoted. The matter was considered by the department in the light of opinion given by Legal Remembrancer, Haryana and an order promoting Shri V.P. Harnal to the post of Analyst/Deputy Public Analyst was passed on 17.1.1989. Shri V.P. Harnal was promoted as an Analyst w.e.f. 7.10.1966 and as Deputy Public Analyst on 6.12.1979, pursuant to Governor of Haryana was pleased to appoint Shri V.P. Harnal as Public Analyst vide notification dated 11.11.1991 Annexure P3. Ever since the appointment of Shri Harnal as Public Analyst, he had been performing the duties of a Public Analyst. In these circumstances, it would be appropriate to presume that Shri V.P. Harnal was duly appointed. As a general law, the fact that one has acted as an officer and has generally been recognised as such will create the presumption of a valid appointment. The law presumes that one who is in actual possession of an office is duly qualified. Thus, I find no merit in the contention of the learned counsel for the petitioners that Shri V.P. Harnal did not possess the requisite qualifications as prescribed under Rule 6 of the Prevention of Food Adulteration Rules, 1955 and so his appointment is vitiated.

The plea of retrospective appointment of Shri V.P. Harnal has also in fact no bearing upon the point in controversy. Shri V.P. Harnal had been appointed as a Public Analyst vide notification dated 11.11.1991 and the samples of Paneer/Butter were taken by Food Inspector on 21.9.1992 which were sent to the Public Analyst for his report. Otherwise too all these points have yet to be examined by the trial Magistrate in the light of the material which is yet to be placed. No ground for quashing of the complaint and the attendant proceedings is made out on this ground.

As regards the submission of the learned counsel for the petitioners that petitioner No. 1 has been unjustly arrayed as an accused, I am of the view that it has merit. Admittedly, samples of Paneer/Butter have been taken from the Kwality Resturant in the presence of its Manager/Incharge, Shri Pitamber Sharma. It is not the case of the complainant that petitioner No. 1 was present at the time when the samples were taken. He in fact has been impleaded, treating him to be the proprietor of M/s Kwality Restaurant which fact has been specifically denied by the petitioners. Accordingly, I accept the petition to the extent i.e. qua deleting the name of petitioner No. 1 from the array of accused persons.

Complaint against Shri Pitamber Sharma, Manager, Kwality Restaurant, Panchkulapetitioner No. 2 shall be proceeded according to law.