Saumindra Bhattacharya Vs. State of Bihar and anr. - Court Judgment

Excerpt:
criminal - food adulteration - maintainability of complaint by private party - quashing of criminal proceedings - sections 2, 11, 11(1), 11(2), 11(3), 12, 14, 14a, 16, 16(1aa), 17 and 20 of prevention of food adulteration act, 1954 - section 320 of indian penal code, 1860 and section 482 of code of criminal procedure,1973 - complainant filed a complaint under sections 2, 16, 17 of act read with section 320 of indian penal code - meanwhile, report of public analyst was received and was also appended by complainant - proceedings challenged by accused under section 482 code of criminal procedure - high court quashed proceedings qua accused no. 1 and 2 but dismissed petition with respect to accused no. 3 - hence, the present appeal - held, no averment whatsoever in the complaint or even in evidence adduced by complainant that provisions of section 12 and two provisos complied with or the sample which was required to be sealed and kept in the manner required by section 11 had been kept in that way - prosecution for an offence under the act can be instituted by a purchaser only if the report of the public analyst is produced along with the complaint - institution of the complaint without the report of the public analyst not authorised in law - order of high court not maintainable - proceedings against accused no. 3 also quashed - appeal allowed - indian succession act, 1925 section 63: validity of will held, theory of spiritual well-being of deceased soul has no reference in judging validity of will. -- sections 275, 283 & 286: [s.b. sinha & h.s. bedi, jj] jurisdiction of probate court held, it is limited to decide the genuineness of will only. question of title or question of construction of will relating to right, title and interest of any other person is beyond the domain of the probate court. -- sections 275, 284 & 286: [s.b. sinha & h.s. bedi, jj] issuance of citation or filing of caveat held, persons must have some interest in the estate of testator. persons claiming any interest adverse to the testator or his estate cannot maintain any application before the probate court. -- sections 275 & 283: [s.b. sinha & h.s. bedi, jj] lodging of caveat by executor of will m and p husband and wife executing mutual wills bequeathing his/her property to other and in event of other predeceasing him or her, executors appointed in their respective wills to donate entire estate to charities death of m p taking over as beneficiary of will of m p by latter will bequeathing entire properties to stranger caveat lodged by executor of will of m objecting to the grant of probate on the ground that latter will p was in clear breach of mutual wills and that p also had no competence to dispose of property which stood impressed with trust - held, caveator-executor cannot be said to have acquired caveatable interest thereby. -- indian succession act, 1925. sections 283 & 275: [s.b. sinha & h.s. bedi, jj] filing of caveat - held, the person who files a caveat in probate proceedings must have an interest in the estate of the deceased. those who pray for joining the proceedings cannot do so despite saying that they had no interest in the estate of the deceased. they must be persons who have an interest in the estate left by the deceased. an interest may be a wide one but such an interest must not be one which would not have the effect of destroying the estate of the testator itself. the propositions of law which are applicable are (1) to sustain a caveat, a caveatable interest must be shown; (2) the test required to be applied is: does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right; (3) it is a fundamental nature of probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. the logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding in as much as none of such rights can effectively be adjudicated therein. while determining whether the caveator has caveatable interest the law governing the intestate succession must also be kept in mind. the right of the reversioner or even the doctrine of spes successionis will have no application for determining the issue. a will is executed when the owner of a property forms an opinion that his/her estate should not devolve upon the existing heirs according to the law governing intestate succession. when, thus, a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate. such a special interest may be a creditor of the deceased. but, the same would not mean that even if the estate of the deceased is being represented by the legal heirs, caveat can be entertained at the instance of a person who has no real interest therein or in other words would merely have a contingent interest. a transferee pendente lite without the leave of the court would not have a caveatable interest and as such cannot be impleaded as a party. a person cannot also be impleaded as a party even on an apprehension that those who have a caveatable interest and to whom citations have been made would not take any interest in litigation. a reversioner or a distant relative of testator is not entitled to file caveat. -- sections 283 & 284: [s.b. sinha & h.s. bedi, jj] probate proceedings lodging of caveat held, a busy body or an interloper having no legitimate concern in the outcome of the probate proceedings is not entitled to lodge a caveat and oppose the probate. if any body and everybody including a busy body or an interloper is found to be entitled to enter a caveat and oppose, grant of probate, then sections 283 (1)(c) and 284 would lead to an anomalous situation. caveatable interest cannot be construed very widely. a caveatable interest is not synonymous with the word contention. a contention can be raised only by a person who has a caveatable interest. the dictionary meaning of contention, therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 act. while interpreting the provisions of a statute, it must also bear in mind the admitted legal position that a probate proceeding should not be permitted to be converted into a title suit. it should not be permitted to become an unchartered field to be trespassed into by person even if he is not affected by testamentary disposition. existence of mutual wills by itself is not sufficient to create a caveatable interest. probate has to be granted to latter will even when made in prejudice of agreement not to revoke mutual wills. -- sections 283: lodging of caveat held, right of pre-emption, if any, is not affected by grant of probate. a right of pre-emption would arise only when a voluntary transfer is made for consideration in favour of a stranger and not prior thereto. the object of conferring the right of pre-emption of a co-sharer or owner of an adjacent immovable property is to exclude stranger from acquiring interest in an immovable property as a co-sharer or to keep objectionable strangers away from the neighbourhood. the same by itself does not constitute a caveatable interest. a right of pre-emption may run with the land but, the same would not constitute any caveatable interest. -- sections 283: rights and obligations of executor held, it arises only on the death of the testator. death of executor before death of testator cannot be said to have ceased to hold such office. stipulation in will to fill-up vacancy if any executor ceases to be so will not apply. substitute executor appointed to take place of named executor who pre-deceased the testator cannot claim caveatable interest. moreover, a mere executor does not have a caveatable interest in testators property. -- sections 283: caveatable interest mutual wills of husband and wife on death of husband wife taking over entire property second will executed by wife bequeathing entire property to a stranger held, stranger as beneficiary under second will of wife, has caveatable interest and can object to grant of probate. -- sections 301: death of executor filling up of vacancy held, it is either to be as per terms of will or as per law. it cannot be filled in equity. constitution of india -- article 227 & rules framed by calcutta high court, 1940, rule 30; [s.b. sinha & h.s. bedi, jj] probate proceedings determination as preliminary issue the caveatable interest held, rule 30 of 1940 rules framed by the calcutta high court providing for determination of the issue of caveatable interest as a preliminary issue is valid. the high court, in exercise of its powers conferred upon it under section 122 of c.p.c., could frame such rules. after coming into force of the constitution such rules can also be framed by the high court in exercise of its supervisory jurisdiction under article 227 of the constitution of india. it would be improper to say that there being no such provision in the act for determination of such an issue as preliminary issue, the high court should not have framed the rules. if converse say is accepted then in a similar situation supreme court also could not direct listing of the writ petitions under article 32 of the constitution of india for preliminary hearing in terms of the supreme court rules. the court having regard to its general power as also the power under order 14, rule 1 of c.p.c., can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. it is a rule of procedure and not of substance. a court is entitled to dismiss a lis at the threshold if it is found not maintainable. the court even in the absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all - the complainant received a reply from the accused and it was pointed out therein that several such complaints had been received from other sources as well, and it appeared that limca was being adulterated by some unscrupulous elements and an enquiry was going on in this connection. the second proviso further states that the procedure prescribed in sub-sections (1), (2) and (3) of section 11 would be applicable to such purchase and taking of samples as well. 3 as well.order1. this appeal arises out of the following facts:2. on 6th april, 1999, the complainant ajay paul, an advocate by profession, purchased three bottles of limca from a retailer at village digha. one of the bottles was opened by the complainant and on consuming the same, he fell sick, vomitted several times, felt nauseated, had loose motions and had to spend a sum of rs. 3,000/- on medicines etc. the complainant also examined one of the bottles of limca which remained unopened and found that it contained several dust particles. the complainant thereupon served a notice dated 9th april 1999 by registered post on the three accused, accused no. 1 being the president of m/s. coca cola india, accused no. 2 the consumer affairs coordinator and accused no. 3 the manager of m/s. bharat coca cola bottling north east pvt. ltd. patna alleging that he had been caused injury on account of consumption of adulterated limca. the complainant received a reply from the accused and it was pointed out therein that several such complaints had been received from other sources as well, and it appeared that limca was being adulterated by some unscrupulous elements and an enquiry was going on in this connection. dissatisfied with the said reply, the complainant filed a complaint under sections 2, 16, 17 of the prevention of food adulteration act, 1954, hereinafter 'the act' for short, read with section 320 of the ipc. the complainant and three other witnesses were examined by the magistrate. in the meanwhile, the report of the public analyst, bihar, patna was received and was also appended by the complainant and cognizance was duly taken by the magistrate. these proceedings were challenged by the accused under section 482 of the crpc. the high court, vide the impugned judgment, has quashed the proceedings qua accused nos. 1 and 2 but has dismissed the petition with respect to the manager, accused no. 3. accused no. 3 is before us in the present appeal.3. mr. ashok desai, the learned senior counsel for the appellant, has raised only one argument during the course of hearing. he has pointed out that the act itself provided a specific means and method whereby a complaint by a private party relating to food adulteration had to be entertained and in the absence of the stipulated procedure having been followed, the magistrate was not justified in even entertaining the complaint. in this connection, he has referred us to sections 11, 12 and 20 of the act. 4. we find that the complainant, though served, is not before us but mr. gopal singh, the learned counsel for the state of bihar, though handicapped, has pointed out that if a rigid view was taken about the manner in which proceedings under the act were to be initiated by a private party, it would be virtually impossible to keep the manufacturers or dealers within the four corners of the law as they would have a carte blanche in carrying on with their nefarious activities. he has also submitted that after the report of public analyst had been appended, any lacuna which may have been earlier present had been filled in and the magistrate had rightly taken cognizance of the matter.5. we have considered the arguments advanced by the learned counsel. sections 12 and 20 are reproduced below:12. purchaser may have food analysed. - nothing contained in this act shall be held to prevent a purchaser of any article of food other than a food inspector or a recognised consumer association, whether the purchaser is a member of that association or not, from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of his analysis: provided that such purchaser or recognised consumer association shall inform the vendor at the time of purchase of his or its intention to have such article so analysed; provided further that the provisions of sub-section (1), sub-section (2) and sub-section (3) of section 11 shall, as far as may be, apply to a purchaser of article of food or recognised consumer association, who or which intends to have such articles so analysed, as they apply to a food inspector who takes a sample of food for analysis; provided also that if the report of the public analyst shows that the article of food is adulterated, the purchaser or recognised consumer association shall be entitled to get refund of the fees paid by him or it under this section. xxx xxx xxx xxx 20. cognizance and trial of offences.- (1) no prosecution for an offence under this act, not being an offence under section 14 or section 14a shall be instituted except by, or with the written consent of, the central government or the state government or a person authorised in this behalf, by general or special order, by the central government or the state government; provided that a prosecution for an offence under this act may be instituted by a purchaser or recognised consumer association referred to in section 12, if he or it produces in court a copy of the report of the public analyst alongwith the complaint. (2) no court inferior to that of a metropolitan magistrate or a judicial magistrate of the first class shall try any offence under this act. (3) notwithstanding anything contained in the code of criminal procedure, 1973 (2 of 1974), an offence punishable under sub-section (1aa) of section 16 shall be cognizable and non-bailable.section 12, inter alia, provides that a purchaser may have a food product analysed and for that purpose may submit the food sample to a public analyst but before doing so he has to inform the vendor at the time of purchase that he intends to have the article analysed. the second proviso further states that the procedure prescribed in sub-sections (1), (2) and (3) of section 11 would be applicable to such purchase and taking of samples as well. we find from the record that there is no averment whatsoever in the complaint or even in the evidence adduced by the complainant that the provisions of section 12 and the two provisos in particular had been complied with or the sample which was required to be sealed and kept in the manner required by section 11 had been kept in that way. we also notice that the proviso to section 20 is categoric and brooks no ambiguity in that a prosecution for an offence under the act can be instituted by a purchaser only if the report of the public analyst is produced alongwith the complaint. 6. we are, therefore, of the opinion that even assuming that some report of the public analyst had been put on record during the pendency of the complaint before the magistrate, this factor will not cure the defect under section 20 as the very institution of the complaint without the report of the public analyst was not authorised in law.7. in nazir ahmad v. king emperor : air 1936 pc 253 it has been held:that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. other methods of performance are necessarily forbidden. and furtherit would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves. 8. the observations aforesaid are extremely relevant to the facts of the present case. a very detailed procedure has been prescribed under which the samples are taken and handled (section 11) and then as to how the complaints etc. are to be filed and entertained by the magistrate (sections 12 & 20). the procedure prescribed must, of necessity, be adopted without any departure.9. we are, therefore, of the opinion that the order of the high court cannot be maintained. we, therefore, allow the appeal and quash the proceedings against accused no. 3 as well.

Judgment:
ORDER

1. This appeal arises out of the following facts:

2. On 6th April, 1999, the complainant Ajay Paul, an advocate by profession, purchased three bottles of Limca from a retailer at village Digha. One of the bottles was opened by the complainant and on consuming the same, he fell sick, vomitted several times, felt nauseated, had loose motions and had to spend a sum of Rs. 3,000/- on medicines etc. The complainant also examined one of the bottles of Limca which remained unopened and found that it contained several dust particles. The complainant thereupon served a notice dated 9th April 1999 by registered post on the three accused, accused No. 1 being the President of M/s. Coca Cola India, accused No. 2 the Consumer Affairs Coordinator and accused No. 3 the Manager of M/s. Bharat Coca Cola Bottling North East Pvt. Ltd. Patna alleging that he had been caused injury on account of consumption of adulterated Limca. The complainant received a reply from the accused and it was pointed out therein that several such complaints had been received from other sources as well, and it appeared that Limca was being adulterated by some unscrupulous elements and an enquiry was going on in this connection. Dissatisfied with the said reply, the complainant filed a complaint under Sections 2, 16, 17 of the Prevention of Food Adulteration Act, 1954, hereinafter 'the Act' for short, read with Section 320 of the IPC. The complainant and three other witnesses were examined by the Magistrate. In the meanwhile, the report of the Public Analyst, Bihar, Patna was received and was also appended by the complainant and cognizance was duly taken by the magistrate. These proceedings were challenged by the accused under Section 482 of the CrPC. The High Court, vide the impugned judgment, has quashed the proceedings qua accused Nos. 1 and 2 but has dismissed the petition with respect to the Manager, accused No. 3. Accused No. 3 is before us in the present appeal.

3. Mr. Ashok Desai, the learned senior counsel for the appellant, has raised only one argument during the course of hearing. He has pointed out that the Act itself provided a specific means and method whereby a complaint by a private party relating to food adulteration had to be entertained and in the absence of the stipulated procedure having been followed, the Magistrate was not justified in even entertaining the complaint. In this connection, he has referred us to Sections 11, 12 and 20 of the Act.

4. We find that the complainant, though served, is not before us but Mr. Gopal Singh, the learned Counsel for the State of Bihar, though handicapped, has pointed out that if a rigid view was taken about the manner in which proceedings under the Act were to be initiated by a private party, it would be virtually impossible to keep the manufacturers or dealers within the four corners of the law as they would have a carte blanche in carrying on with their nefarious activities. He has also submitted that after the report of Public Analyst had been appended, any lacuna which may have been earlier present had been filled in and the Magistrate had rightly taken cognizance of the matter.

5. We have considered the arguments advanced by the learned Counsel. Sections 12 and 20 are reproduced below:

12. Purchaser may have food analysed. - Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a food inspector or a recognised consumer association, whether the purchaser is a member of that association or not, from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of his analysis:

Provided that such purchaser or recognised consumer association shall inform the vendor at the time of purchase of his or its intention to have such article so analysed;

Provided further that the provisions of Sub-section (1), Sub-section (2) and Sub-section (3) of Section 11 shall, as far as may be, apply to a purchaser of article of food or recognised consumer association, who or which intends to have such articles so analysed, as they apply to a food inspector who takes a sample of food for analysis;

Provided also that if the report of the public analyst shows that the article of food is adulterated, the purchaser or recognised consumer association shall be entitled to get refund of the fees paid by him or it under this section.

xxx xxx xxx xxx

20. Cognizance and trial of offences.- (1) No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14A shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government;

Provided that a prosecution for an offence under this Act may be instituted by a purchaser or recognised consumer association referred to in Section 12, if he or it produces in court a copy of the report of the public analyst alongwith the complaint. (2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under Sub-section (1AA) of Section 16 shall be cognizable and non-bailable.

Section 12, inter alia, provides that a purchaser may have a food product analysed and for that purpose may submit the food sample to a public analyst but before doing so he has to inform the vendor at the time of purchase that he intends to have the article analysed. The second proviso further states that the procedure prescribed in Sub-sections (1), (2) and (3) of Section 11 would be applicable to such purchase and taking of samples as well. We find from the record that there is no averment whatsoever in the complaint or even in the evidence adduced by the complainant that the provisions of Section 12 and the two provisos in particular had been complied with or the sample which was required to be sealed and kept in the manner required by Section 11 had been kept in that way. We also notice that the proviso to Section 20 is categoric and brooks no ambiguity in that a prosecution for an offence under the Act can be instituted by a purchaser only if the report of the public analyst is produced alongwith the complaint.

6. We are, therefore, of the opinion that even assuming that some report of the public analyst had been put on record during the pendency of the complaint before the Magistrate, this factor will not cure the defect under Section 20 as the very institution of the complaint without the report of the public analyst was not authorised in law.

7. In Nazir Ahmad v. King Emperor : AIR 1936 PC 253 it has been held:

that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

and further

it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves.

8. The observations aforesaid are extremely relevant to the facts of the present case. A very detailed procedure has been prescribed under which the samples are taken and handled (Section 11) and then as to how the complaints etc. are to be filed and entertained by the Magistrate (Sections 12 & 20). The procedure prescribed must, of necessity, be adopted without any departure.

9. We are, therefore, of the opinion that the order of the High Court cannot be maintained. We, therefore, allow the appeal and quash the proceedings against accused No. 3 as well.