R E P O R T A B L E    

  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 569 OF 2003

SAUMINDRA BHATTACHARYA .......APPELLANT(S)  

Versus

STATE OF BIHAR & ANR. .....RESPONDENT(S)

O R D E R

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  

......2.

- 2 -

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

....3.

- 3 -

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;

.........4.

- 4 -

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

.......5.

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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  

......6.

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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 Vs. 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 (Ss.12 &  

20).   The  procedure  prescribed  must,  of  necessity,  be  

adopted without any departure.

.........7.

- 7 -  

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.

 ..........................J.

  ( HARJIT SINGH BEDI )

New Delhi;    ..........................J. September 10, 2009.           ( J.M. PANCHAL )