Ayesha Khatoon and Ors Vs. The State of Jharkhand and Anr - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Miscellaneous Petition No. 646 of 2014 --- 1.Ayesha Khatoon wife of Late Md. Hanif 2.Mustaque Ahmad 3.Saud Ahmad 4.Sami Afroz Sl. Nos. 2 to 4 are sons of Late Md. Hanif all residents of Village Jagannathpur, Moula Nagar, PO & PS Jagannathpur, District Singhbhum West 5.Zarina Khatoon wife of Late Samsul, D/o Late Md. Hanif, resident of Jagannathpur, Moula Nagar, PO & PS Jagannathpur, District Singhbhum West. At present residing at Champuagora, PO & PS Champua, District Kyonjhar, State Odisha 6.Nahid wife of Imtiyaz Nazim 7.Muntazir s/o Late Abdul Rahman, Ex-teacher, (a close friend of Imtiyaz Nazim, accused no.

1) Sl. Nos. 6 & 7 are resident of Jagannathpur, Moula Nagar, PO & PS Jagannathpur, District Singhbhum West 8.Mokhtar Ahmad @ Mukhtar, Advocate, son of Late Md. Hanif, resident of Rehsaldar Nagar, Doranda, PO & PS Doranda, Town Ranchi, District Ranchi … … Petitioners Versus 1.State of Jharkhand 2.Nagma Farhat wife of Imtiyaz Nazim D/o Nurul Hoda Khan, resident of C-2, 3rd Floor, Manager Khan Flat, Mango, PO & PS Mango, Town Jamshedpur, District East Singhbhum, Jharkhand … … Opposite Parties --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioners : Mr. A. K. Kashyap, Senior Advocate For the Opposite Party No. 2 : Mr. Indrajit Sinha, Advocate --- 10/09.03.2015 Heard Mr. A. K. Kashyap, learned senior counsel for the petitioners and Mr. Indrajit Sinha, learned counsel for the opposite party no.

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2. In this application, the petitioner has prayed for quashing the order dated 07.08.2012 passed by Sri A. K. Dubey, J.M. 1st class, East Singhbhum, Jamshedpur in C/1 Case No. 1702 of 2010 by which the application filed under Section 245 of Cr.P.C. on behalf of the petitioners have been rejected and the petitioners have further prayed for quashing the order dated 17.01.2014 passed by the learned -2- Additional Sessions Judge I, Jamshedpur in Criminal Revision No. 218 of 2012 whereby and whereunder the revision preferred by the petitioners was dismissed and the order dated 07.08.2012 passed by the learned Judicial Magistrate 1st class, East Singhbhum, Jamshedpur was sustained.

3. Learned senior counsel for the petitioner has submitted that the Talak has taken place in the year 2007, but the complaint case was instituted on 17.06.2010 i.e., after three years after the Talak and in such circumstances, no case under Section 498A and 406 of the I.P.C. is made out. It has further been submitted that petitioners are the mother-in-law and brothers-in-law of the complainant who reside at a separate place and in such view of the matter, the petitioner could not have been made an accused in the present case. It has also been submitted that no case under Section 406 and 498A of the I.P.C. is made out and in fact, the learned Revisional Court vide order dated 17.01.2014 did not properly consider the materials available on record and without giving any proper finding has dismissed the revision application.

4. The learned counsel for the opposite party no. 2, on the other hand, has submitted that the complaint petition reveals a prima facie case for the offences punishable under Section 498A, 323, 406, 420 & 504 of the I.P.C. and both the courts below have considered the application under Section 245 of Cr.P.C. and has rightly come to a conclusion that sufficient material exists for framing of charge against the accused persons.

5. After hearing the learned counsel for the parties and after going through the records, I find that the application for discharge preferred on behalf of the petitioners before the learned Judicial Magistrate 1st class, Jamshedpur was dismissed on 07.08.2012. This order was under challenge in Criminal Revision No. 218 of 2012 and the learned Additional Sessions Judge I, Jamshedpur vide order dated 17.01.2014 was pleased to dismiss the said revision application. A perusal of the impugned order dated 17.01.2014 reveals that no finding has been given by the learned Additional Sessions Judge I, Jamshedpur while coming to the conclusion that the order dated 07.08.2012 passed by the learned Judicial Magistrate 1st class, Jamshedpur was sustainable. The arguments advanced on behalf of the parties have been noted -3- down, but without any application of judicial mind, the learned Revisional Court has straightway come to a conclusion that there is no illegality or error in the order dated 07.08.2012. This in my view is totally a non-speaking order which is devoid of application of judicial mind on the part of the learned Revisional Court. In my view, therefore, this order cannot be sustained. Accordingly the order dated 17.01.2014 passed by the Additional Sessions Judge I, Jamshedpur in Criminal Revision No. 218 of 2012 is set aside and the matter is remanded back to the learned Revisional Court to pass a fresh order in accordance with law by assigning reasons therein.

6. This application is allowed in the extent mentioned hereinabove.

7. However, it is made clear that this order will not prejudice the learned Revisional Court while passing a fresh order. (Rongon Mukhopadhyay, J) R. Shekhar Cp 3 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Miscellaneous Petition No. 835 of 2004 --- 1.Shri Amit Saha s/o Sita Ram Saha Area General Manager (Jamshedpur), Hindustan Coca Cola Beverages (P) Ltd., Kandra Road Adityapur, Jamshedpur 2.Shri Rohit Awasthi s/o Santosh Kumar Awasthi Quality Control Manager, Hindustan Coca Cola Beverages (P) Ltd., Kandra Road Adityapur, Jamshedpur … … Petitioners Versus 1.The State of Jharkhand 2.Shri M. Pandey, Food Inspector, PO & PS Sakchi, Jamshedpur, District Singhbhum (East) … … Opposite Parties --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioners : Mr. N. K. Agrawal, Senior Advocate For the Opposite Party No. 2 : Mr. Deepak Kumar Prasad, Advocate --- 10/09.03.2015 Heard Mr. N. K. Agrawal, learned senior counsel for the petitioners and Mr. Deepak Kumar Prasad, learned counsel for the opposite party no.

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2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with C2 Case No. 68 of 2003 including the order dated 12.11.2003 passed by the Chief Judicial Magistrate, Saraikella-Kharsawan whereby and whereunder cognizance has been taken for the offence punishable under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954.

3. The prosecution case as would be evident from the complaint lodged by the opposite party no. 2 in his capacity as Food Inspector is that on 18.08.2003 he has collected the sample of Coca Cola, Thumps Up, Fanta, Limca, Sprite, Kinley Soda x 6 from the premises of M/s. Hindustan Coca Cola Beverages (P) Ltd. for the purpose of analysis. It has been stated that one part of the said sample was sent to the Public Analyst and vide report no. 183 of 2003 dated 1109.2003, it was opined by the Public Analyst that the sample and bottle of Fanta carbonated water is misbranded as the total added sugar content 12.8/100 is less than quantity of added sugar 13.3/100 declared on the -2- cap/crown of the bottle as per 2 (ix) (e) of the PFA Act 1954.

4. In view of the report of the Public Analyst, C2 Case No. 68 of 2003 was instituted and vide order dated 12.11.2003, the learned Chief Judicial Magistrate was pleased to take cognizance for the offences punishable under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954.

5. Mr. N. K. Agrawal, learned senior counsel appearing for the petitioners submits that the relevant rule mandating the manufacturer to declare the quantity of added sugar over the food packs came into effect from 01.10.2003 vide notification no. GSR No. 853 (E) whereas the cold drink in question has been manufactured on 22.07.2003 well before the issuance of the aforesaid notification warranting the manufacturer to declare the added sugar on the bottle or on the cap/crown of the bottle and as such, the petitioner is never liable to be prosecuted under the Food Adulteration Act. It has also been submitted that the petitioners are the Area General Manager and Quality Control Manager respectively of Hindustan Coca Cola Beverages (P) Ltd.

6. Learned counsel in support of his submission has referred to a decision rendered in a case of “Partha Sarathi Kumar and another Vs. State of Jharkhand and another” (Cr. M. P. Nos. 200, 216 and 220 of 2004) where, according to learned counsel appearing for the petitioner, similar question fell for consideration as to whether the provision relating to misbranding came into force with effect from 1.4.2003 or 1.10.2003. In the order dated 18.01.2010 passed in W. P. (Cr.) No. 168 of 2009 it has been observed as under: “ Learned counsel in support of his submission has referred to a decision rendered in a case of Partha Sarathi Kumar and another Vs. State of Jharkhand and another (Cr.M.P. Nos. 200, 216 and 220 of 2004) where, according to learned counsel appearing for the petitioner, similar question fell for consideration as to whether the provision relating to misbranding came into force with effect from 01.04.2003 or 01.10.2003. Learned counsel in this regard further submits that the Court having examined the old provision and the amended provision came to the conclusion categorically that the relevant rule prescribing about the declaration of the quantity of added sugar on the cap/crown of the bottle came into effect from 01.10.2003 and in that view of the matter, the petitioner cannot be prosecuted under the Act as sample which -3- had been collected for analysis had been manufactured on 18.06.2003 on which date no such requirement of mentioning of quantity of added sugar on the cap/crown of the bottle was there in the existing rule as such, entire prosecution suffers from illegality and is fit to be quashed. Having heard learned counsel appearing for the parties and on perusal of the records, I do find that exactly the similar issue which has been raised in this application was there. To be more specific, the following was the issue before this Court in the case referred to above. “The only question arises for determination is whether the condition that the quantity of added sugar to be mentioned either on the cap or crown of the bottle came into force from 01.04.2003 or 01.10.2003.” ......................................................................................... His Lordship while taking into account the amended provision of sub-rule (iii) or Rule 2 and also Rule 1 as well as Appendix B to the said Rule came to the conclusion which are as follows: (a) The Amended Rules, 2002 came into effect from 1st April 2003 except sub-rules (ii), (iii) & (iv) of rule-2 of the Amended Rules, 2002. (b) Sub-rules (ii), (iii) & (iv) of Rule-2 of Amended Rules, 2002, whereby Rule-42 was amended and label prescribed under sub-rule (zzz) (1) & (12) came into effect from later date with effect from 1st October, 2003. (c) Appendix-B to the said rule cannot be given effect independently till sub-rule (zzz) of Rule-42 is given effect. Thus, the Appendix-B to the amended Rule also came into effect from 1st October, 2003. ................................................”

7. Thus, it can easily be said that the relevant rule requiring of mentioning of added sugar came into force on 01.10.2003 whereas the sample which has been seized for launching prosecution was manufactured on 22.07.2003 much prior to 01.10.2003 and therefore, the petitioner would not be liable to be prosecuted under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954. Moreover, this Court under similar circumstances has quashed the entire criminal proceeding in W.P. (Cr.) No. 168 of 2009.

8. Considering what has been stated above, this application is allowed and the entire criminal proceeding in connection with C/2 Case No. 68 of 2003 including the order dated 12.11.2003 passed by the learned Chief Judicial Magistrate, Saraikella-Kharsawan by which -4- cognizance has been taken for the offence under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 is quashed. (Rongon Mukhopadhyay, J) R. Shekhar Cp 3