1. Rule is made returnable forthwith and present application is taken up for final hearing with the consent of the learned counsel for the parties.
2. Heard learned counsel for the parties.
3. Leave to amend the prayer clause granted. Amendment to be carried out forthwith.
4. By the present application, preferred by the applicant under Section 482 of the Code of Criminal Procedure, the applicant prays that the first information report, on the basis of which, Crime No. 126 of 2010 is registered against the applicant for the offences punishable under Sections 272, 328 and 420 of the Indian Penal Code and Sections 5, 7 and 12 of the Food Adulteration Act, be quashed and set aside, as well as prayed that charge sheet No. 85 of 2011 filed on the basis of said C.R. No. 126 of 2010 also be quashed and set aside.
5. It is alleged that on receipt of the secret information, on 8.10.2010, without any notice, the premises bearing C.T.S. No.997/1, belonged to one Takale, was raided by the police officers and the milk powder was seized from the said premises, valued at Rs.4,500/-. Accordingly, C.R. No. 126 of 2010 was registered at Ashti police station, Taluka Ashti, District Beed and the applicant was arrested under the said C.R. for the offences punishable under Sections 120B, 272, 328, 420 of the Indian Penal Code and Sections 5, 7 and 12 of the Food Adulteration Act.
6. It is the contention of the applicant that the powder allegedly seized was used by the agriculturists as a food for the cows to get better yield. It is also the contention of the applicant that the whey powder is a byproduct manufactured from Fresh Milk and is used in confectioneries, bakeries, dairy whitener and in Ice cream mixes. It can also be used as one of the constituents for cattle and poultry feeds as a source or carbohydrate.
7. It is also the contention of the applicant that he does not carry on any business of grocery, but his brother namely, Arun Popatrao Saikad carries on business of grocery shop in the name and style, "Rohit Kirana Stores" and the applicant herein, namely Sandeep carries on the business of "Sitai Restaurant" and is not at all concerned with the alleged seizure of the said milk powder. It is further the contention of the applicant that the police personnel did not find any adulterated food articles prepared using the above mentioned substance during the afore said seizure.
8. In the said context, the applicant asserts that the Quality Assurance Manager of Paras had certified the whey permeate powder (WPP) as a byproduct manufactured from Fresh Milk and can be used as such in confectioneries, Bakeries, Dairy Whitener and Ice cream Mixes and it also can be used as one of the constituents for the Cattle and poultry Feeds as a source of Carbohydrate.
9. The investigation papers disclose that the sample of the seized powder was sent to the Deputy Director, Health Services for analysis purpose and the result thereof, as per report dated 10.12.2010, reflects that the said sample of powder does not conform to the standards of milk powder, as per P.F.A. Rules, 1955.
Moreover, the report, dated 10.12.2010, issued by the Deputy Director, Health Services, State Public Health Laboratory, Pune discloses that the sample of the milk powder sent did not conform to the standards of milk powder, but the said powder is not harmful to human body, as well as the said report in the form of answers to questionnaire discloses that the mixture prepared for the said sample of powder was tested and same was not found to be harmful to the human body and the said report, dated 10.12.2010, sent by the Deputy Director, Health Services, State Health Laboratory, Pune, clinches the controversy in question.
10. It is highlighted by the learned counsel for the applicant that the investigation was carried out by the police personnel and complaint has been lodged by the police personnel and not by the Food Inspector as contemplated under Sections 10 and 11 of the Prevention of Food Adulteration Act, which sustains a fatal blow to the prosecution in the instant case.
11. In the circumstances, since the alleged seizure of the milk powder was effected, without any notice to the applicant, in the premises, which allegedly belonged to one Takale, and since the alleged powder was apparently not adulterated and no food articles were found to be prepared using the said powder, and since it is being used as a byproduct manufactured from fresh milk and can be used as such in confectioneries, Bakeries, Dairy Whitener and Ice cream Mixes and it also can be used as one of the constituents for the Cattle and poultry Feeds as a source of Carbohydrate, and since as per the report, dated 10.12.2010, issued by the Deputy Director, Health Services, although the said powder does not crap.
Conform to the standards of milk powder as per the P.F.A. Rules, the said powder is not harmful to human body, as well as since the mixture prepared therefrom also is not harmful to the human body and since the investigation has been carried out by the police personnel and not by the Food Inspector as contemplated under Section 11 of the Prevention of Food Adulteration Act, and since apparently, there appears to be abuse of process of court, this is a fit case to quash and set aside the first information report, as well as consequent charge sheet filed by the respondent, and hence, present petition deserves to be allowed.
12. In the result, present application is allowed in terms of prayer clauses 'B' and 'B-A' and the first information report registered on the basis of C.R. No. 126 of 2010 against the applicant with Ashti police Station, Taluka Ashti, District Beed and consequent charge sheet filed on the basis of said C.R. No. 126 of 2010, stand quashed and set aside.
13. Rule is made absolute accordingly.