Sunday, 25 October 2015

Whether certificate as per S 65B of Evidence Act can be produced at subsequent stage?

 To consider the issue raised on behalf of the petitioners in a proper manner, I pose a question to me whether an evidence and more particularly evidence in the form of a document not produced alongwith the charge-sheet cannot be produced subsequently in any circumstances. My answer to the question is in negative and in my opinion such evidence can be produced subsequently also as it is well settled legal position that the goal of a criminal trial is to discover the truth and to achieve that goal, the best possible evidence is to be brought on record.
19. Relevant portion of sub-section (1) of Section 91 Cr.P.C. provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producement of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the Court to take all steps necessary for the production of such a document before it.
20. As per Section 311 of the Code of Criminal Procedure, any Court may, at any stage of any trial under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Under this provision also wide discretion has been conferred upon the Court to exercise its power and paramount consideration is just decision of the case. In my opinion under this provision it is permissible for the Court even to order production of a document before it if it is essential for the just decision of the case.
21. As per Section 173(8) Cr.P.C. carrying out a further investigation and collection of additional evidence even after filing of charge-sheet is a statutory right of the police and for that prior permission of the Magistrate is not required. If during the course of such further investigation additional evidence, either oral or documentary, is collected by the Police, the same can be produced before the Court in the form of supplementary charge-sheet. The prime consideration for further investigation and collection of additional evidence is to arrive at the truth and to do real and substantial justice. The material collected during further investigation cannot be rejected only because it has been filed at the stage of the trial.
22. As per Section 231 Cr.P.C., the prosecution is entitled to produce any person as a witness even though such person is not named in the charge-sheet.
23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced alongwith the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form.
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
SB Criminal Revision Petition Nos. 1218, 1329, 1327, 1328, 1351, 1352, 1353 and 1467/2014 and 131/2015
Decided On: 04.07.2015
Appellants: Paras Jain and Ors.
Vs.
Respondent: State of Rajasthan
Hon'ble Judges/Coram:Prashant Kumar Agarwal, J.



1. Some of the accused are before this Court by way of these criminal revision petitions under Section 397 read with Section 401 Cr.P.C. to challenge the order dated 22.9.2014 passed by the Special Judge (Prevention of Corruption Cases) No. 1, Jaipur in Criminal Case No. 13/2014 whereby the learned trial Court ordered to frame charge against the petitioners and co-accused against whom charge-sheet was filed. It is to be noted that each of the accused-petitioner has been discharged for some of the offences for which charge-sheet was filed against them. As each of the petition has been filed against the same order and most of the grounds of challenge are common, with the consent of learned counsel for the parties, all the petitions were heard together and are being disposed of by this common order.
2. Brief relevant facts for the disposal of these petitions are that the Anti Corruption Bureau, Jaipur through some secret and reliable source received information to the effect that accused-petitioner-Shri Dinesh Singhal with the help of and in criminal conspiracy with some public servants and other persons is involved in the manufacturing and sale of "Fake Deshi Ghee" at a very large scale in the brand names of several reputed companies and he thereby playing with the health of public at large. On the basis of such information, preliminary inquiry was undertaken by the agency and for the verification of the same under the authority of competent person mobile phones of Shri Dinesh Singhal were put on surveillance and as a result thereof the source information was found to be true. In the aforesaid back-drop FIR No. 526/2013 was registered for various offences against as many as sixty two persons and after due investigation charge-sheet came to be filed against twenty one persons including present petitions. It is said that against rest of the persons investigation has been kept pending under Section 173(8) Cr.P.C. Learned trial Court after hearing both the parties, vide impugned order directed to frame charge against all the accused against whom charge-sheet was filed for various offences. Feeling aggrieved, some of them are before this Court by way of these revision petitions.
3. Before considering case of each of the accused-petitioner individually, it would be appropriate to consider the following preliminary common objections raised on behalf of the petitioners:--
"(i) Whether transcriptions of conversations and for that matter CDs of the same filed alongwith the charge-sheet are not admissible in evidence even at this stage of the proceedings as certificate as required under Section 65-B of the Evidence Act was not obtained at the time of procurement of said CDs from the concerned service provider and it was not produced alongwith charge-sheet in the prescribed form and such certificate cannot be filed subsequently.
(ii) Whether all the offences or some of them for which charge-sheet has been filed or for which charges have been ordered to be framed are covered under the provisions of the Food Safety and Standards Act, 2006 and being a special statute, it includes all penal provisions and, therefore, ACD or local police was not competent to register FIR and investigate the matter and as a consequence thereof the charge-sheet and all subsequent proceedings arising thereunder are null and void being without jurisdiction."
4. In support of the first preliminary common ground, it was jointly submitted by the learned counsel for the petitioners that apart from other evidence copy of the transcriptions of mobile phone conversations allegedly taken place between some of the accused from time to time and CDs thereof were also filed alongwith the charge-sheet, but certificate as required under Section 65-B of the Evidence Act in the prescribed form issued by a competent authority was not filed alongwith the charge-sheet and it has been produced subsequently before the trial Court in proper form only during the course of hearing of these petitions and as mandatory requirement of Section 65-B of the Evidence Act has not been fulfilled, the transcriptions of the alleged conversations as well as CDs thereof are not admissible in evidence and the same cannot be considered even at the stage of framing of charge as it is well settled legal position that only legally admissible evidence can be considered by the Court to frame charge for an offence against an accused. It was also submitted that as per Section 65-B of the Evidence Act requisite certificate should be obtained at the time of procurement of the electronic record like CDs and it should accompany with it and filed alongwith charge-sheet and it cannot be obtained and produced before the Court subsequently. It was submitted that in the absence of a contemporaneous certificate issued by the concerned authority under Section 65-B, the CD's are of no value being totally inadmissible.
5. In support of their submissions, learned counsel for the petitioners relied upon the case of Anwar P.V. v. P.K. Bashir & others reported in MANU/SC/0834/2014 : (2014) 10 SCC 473 and also order dated 20.11.2014 passed by a Single Bench of Hon'ble Delhi High Court in Criminal Misc. Case No. 2455/2012 and Criminal Misc. Application No. 8318/2004 titled Ankur Chawla v. Central Bureau of Investigation and others.
6. On the other hand, learned Additional Advocate General submitted that Section 65-B of the Evidence Act is applicable at the stage when an electronic record is produced as secondary evidence during trial to prove facts contained therein and it can be held inadmissible in evidence only at that stage if it is found by the Court that the same has been produced before the Court without the certificate required under Section 65-B of the Evidence. Section 65-B does not envisage the stage at which such certificate is required to be filed before the Court and it deals with the issue of admissibility of secondary evidence in the form of electronic record and even Hon'ble Supreme Court in the aforesaid case has not held that if such certificate is not accompany the electronic record and is not produced alongwith the charge-sheet, it can not in any circumstances be produced subsequently. It was further submitted that Hon'ble Single Bench of Delhi High Court has not considered the issue properly.
7. I have considered the submissions made on behalf of the respective parties and perused the material made available on record as well as the relevant legal provisions and the case law.
8. It is not in dispute that alongwith charge-sheet copy of transcriptions of mobile conversations allegedly taken place between some of the accused and CDs thereof were filed and certificate as required under Section 65-B of the Evidence Act issued by a competent officer in the prescribed form was not filed alongwith the charge-sheet and it was filed subsequently during the course of hearing of these petitions. In the facts and circumstances of the case and in the light of the provisions of Section 65-B of the Evidence Act and the view expressed by the Hon'ble Supreme Court, it is to be seen whether the transcriptions and CDs filed alongwith the charge-sheet cannot be considered even at the stage of framing of charge.
9. Section 65-A of the Evidence Act reads as follows:--
"65A. Special provisions as to evidence relating to electronic record:-The contents of electronic records may be provided in accordance with the provisions of Section 65B.
65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether -
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment."
10. Hon'ble Apex Court in the case of Anwar P.V. v. P.K. Bashir & others (supra) has held that:
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under Sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity."
11. It was also held that :
"Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device."
12. It was further held that:--
"It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
13. It was also held that:--
"Proof of electronic record is a special record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a special law, the general law under Sections 63 and 65 has to yield."
14. It was held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, Chip etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record is inadmissible.
15. Although, it has been observed by Hon'ble Supreme Court that the requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence, but in my view it does not mean that it must be produced alongwith the charge-sheet and if it is not produced alongwith the charge-sheet, doors of the Court are completely shut and it can not be produced subsequently in any circumstance. Section 65-B of the Evidence Act deals with admissibility of secondary evidence in the form of electronic record and the procedure to be followed and the requirements be fulfilled before such an evidence can be held to be admissible in evidence and not with the stage at which such a certificate is to be produced before the Court. One of the principal issues arising for consideration in the above case before Hon'ble Court was the nature and manner of admission of electronic records.
16. From the facts of the above case it is revealed that the election of the respondent to the legislative assembly of the State of Kerala was challenged by the appellant-Shri Anwar P.V. by way of an election petition before the High Court of Kerala and it was dismissed vide order dated 16.11.2011 by the High Court and that order was challenged by the appellant before Hon'ble Supreme Court. It appears that the election was challenged on the ground of corrupt practices committed by the respondent and in support thereof some CDs were produced alongwith the election petition, but even during the course of trial certificate as required under Section 65-B of the Evidence Act was not produced and the question of admissibility of the CDs as secondary evidence in the form of electronic record in absence of requisite certificate was considered and it was held that such electronic record is not admissible in evidence in absence of the certificate. It is clear from the facts of the case that the question of stage at which such electronic record is to be produced was not before the Hon'ble Court.
17. It is to be noted that it has been clarified by Hon'ble Court that observations made by it are in respect of secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act and if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65-B of the Evidence Act.
18. To consider the issue raised on behalf of the petitioners in a proper manner, I pose a question to me whether an evidence and more particularly evidence in the form of a document not produced alongwith the charge-sheet cannot be produced subsequently in any circumstances. My answer to the question is in negative and in my opinion such evidence can be produced subsequently also as it is well settled legal position that the goal of a criminal trial is to discover the truth and to achieve that goal, the best possible evidence is to be brought on record.
19. Relevant portion of sub-section (1) of Section 91 Cr.P.C. provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producement of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the Court to take all steps necessary for the production of such a document before it.
20. As per Section 311 of the Code of Criminal Procedure, any Court may, at any stage of any trial under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Under this provision also wide discretion has been conferred upon the Court to exercise its power and paramount consideration is just decision of the case. In my opinion under this provision it is permissible for the Court even to order production of a document before it if it is essential for the just decision of the case.
21. As per Section 173(8) Cr.P.C. carrying out a further investigation and collection of additional evidence even after filing of charge-sheet is a statutory right of the police and for that prior permission of the Magistrate is not required. If during the course of such further investigation additional evidence, either oral or documentary, is collected by the Police, the same can be produced before the Court in the form of supplementary charge-sheet. The prime consideration for further investigation and collection of additional evidence is to arrive at the truth and to do real and substantial justice. The material collected during further investigation cannot be rejected only because it has been filed at the stage of the trial.
22. As per Section 231 Cr.P.C., the prosecution is entitled to produce any person as a witness even though such person is not named in the charge-sheet.
23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced alongwith the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form.
24. So far as the view expressed by the Single Bench of Delhi High Court in the aforesaid case is concerned, with due respect, I could not persuade myself for the reasons recorded above to agree with the same.
25. Consequently, the submissions made on behalf of the petitioners being meritless are rejected.
26. In support of the second preliminary common ground, it was jointly submitted by the learned counsel for the petitioners that the Food Safety and Standards Act, 2006 (hereinafter to be referred as "the Act") has come into force with effect from 5.8.2011 and as per charge-sheet it is clear that the petitioners have been charged for the acts and omissions allegedly committed by them from the year 2012 i.e. subsequent to the commencement of the Act and the provisions of the Act are wholesome in nature, omnipotent to take care of all eventualities with respect to any offence committed by any person related to food and even the acts and omissions committed by Food Safety Officers in dereliction of their duty are covered under Section 39 (b) of the Act. It was further submitted that with regard to any kind of food whether it be unsafe food, sub-standard food, misbranded food, alleged manufacture, storage, sale etc. is completely covered as an offence under the various provisions of the Act and penalties are also specifically provided under various sections of the Act. It was further submitted that the Act is complete Code in itself and for an offence under the provisions of the Act, a special procedure has been prescribed which is to be followed therefor and the only authorities under the Act are competent to take action and proceed further in regard to such an offence and in view thereof local police authorities or officers of the Anti Corruption Bureau were not competent to take action under the provisions of the Act. Inviting attention towards Section 89 of the Act, it was also submitted that as per this provision, the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any other law other than the Act. On the strength of this provision, it was submitted that as in the present case the acts or omissions on the part of the petitioners basically are related to food and, therefore, no offences other than the offences punishable under the Act can be said to be made out against them and the officers of the ACB were not entitled to investigate the matter and submit charge-sheet before a Court. It was submitted that provisions of Section 89 of the Act are mandatory in form and nature and it squarely carves out a overriding effect over any other law in force.
27. Inviting attention to Section 97 of the Act, it was also submitted that with effect from the date on which the Act has come into force, the enactments and orders specified in the Second Schedule stood repealed. It was submitted that although Sections 272 and 273 IPC have not been mentioned in the Second Schedule to the Act, they must also be held to be impliedly repealed as soon as the Act came into force as the offences under Sections 272 and 273 IPC are also covered within the provisions of the Act. It was submitted that it is well settled legal position that a special statute has overriding effect on a general law on the same subject matter and as per Section 5 of IPC also provisions of it shall have no effect over the provisions of any special law. It was submitted that it is settled law that if any act or omission is an offence under a special statute, then the offender is to be booked under that special statute and should not be booked under the general law i.e. IPC, ignoring completely the special statutory provisions attracted in the case but in the present case officers of ACD found out a novel way to somehow assume to investigate by applying general law completely ignoring the fact that they lack power to investigate an offence under the Act. It was submitted that the impugned order is based on a charge-sheet submitted by the investigating agency who did not enjoy the requisite investigative powers to investigate the case in hand and in such circumstances, the very foundation of framing of charge suffers from an inherent serious legal flaw. It was further submitted that as soon as there is any source information about manufacture, storage, sale etc. of an unsafe food, sub-standard food or misbranded food, there is a detailed procedure provided in the Act with regard to the manner in which samples are to be taken, food article is to be seized, analysis has to be done but in the present case the procedure so provided has totally been go by the investigating agency. Inviting attention to the impugned order, it was submitted that the learned trial Court has rightly applied the doctrine of special statute overriding application of general law while dealing with offences under Sections 272 and 273 IPC and charge for these offences has not been framed against any accused admitting that aforesaid offences are now covered under the provisions of Act but at the same time ignoring the well settled legal position, learned Court below has ordered to frame charge for other offences although the acts or omissions constituting such offences are covered under the provisions of the Act. It was contended that as per Section 42 prosecution under the Act can be launched before a competent court through food safety officer by way of a complaint only but this procedure has also been blatantly flouted by the ACB by registering FIR and submitting charge-sheet under Section 173 Cr.P.C.
28. In support of their submissions, learned counsel for the petitioners relied upon the cases of Jeevan Kumar Raut v. Central Bureau of Investigation reported in JT MANU/SC/1153/2009 : 2009 (9) SC 188, Pepsico India Pvt. Ltd. v. State of U.P. & Ors. reported in MANU/UP/3189/2010 : 2010 (2) EFR 500, Laxmi Cement v. State & another reported in 1995 RCC 136 (Rajasthan High Court), Kailash Chandra Gupta v. State of Raj. & Anr. reported in 2002 (1) RLR 625 (Rajasthan High Court), Syed Kalelem v. M/s. Mysore Lakshmi Beedi and another reported in MANU/KA/0119/1992 : 1993 Cr.L.J. 232 (Karnataka High Court), Zahir Ahmed v. Azam Khan reported in 1996 Cr.L.J. 290 (Calcutta High Court), Avtar Singh v. State of Punjab reported in MANU/SC/0191/1964 : AIR 1965 SC 666, D. Ramakrishnan v. Intelligence Officer Narcotic Control Bureau reported in JT 2009 (14) SC 473, Suresh Nanda v. Central Bureau of Investigation reported in MANU/SC/7020/2008 : (2008) 3 SCC 674.
29. On the other hand, it was submitted by the learned Additional Advocate General that the present case is not for offences under the Act and after investigation charge-sheet has been filed against the petitioners and other accused for the offences punishable under various other Acts including IPC and Prevention of Corruption Act, 1988 and, therefore, on the strength of provisions of the Act including Sections 89 and 97 thereof, it cannot be submitted that the local police or officers of ACD were not competent to investigate the matter and file charge-sheet before the competent Court and only the authorities and officers under the Act were competent to take action against the petitioners and co-accused in the present case. It was also submitted that as per evidence collected during investigation source information was received by the competent authority of ACD that accused-Shri Dinesh Singhal in connivance with other persons and some Food Safety Officers and in pursuance of criminal conspiracy with them is manufacturing "Fake Deshi Ghee" in the brand names of some reputed companies and is selling it through various persons for the use of public at large and in these circumstances after conducting preliminary inquiry, FIR was registered and investigation was undertaken. It was further submitted that when the officers of the Food Department themselves were involved in the incident and they were in connivance with the main accused, the matter could not have been left in their hands to take action under the provisions of the Act. It was further submitted that charge-sheet has not been filed for any of the offence under the provisions of the Act and, therefore, it cannot be said that ACD was not competent to undertake the investigation. Inviting attention to Section 26 of the General Clauses Act, it was submitted that if an act or omission on the part of an accused is an offence under two or more enactments, criminal proceedings can be taken against him under each and every enactment under which such act or omission is an offence and in the present case even if for the sake of arguments it is admitted that the act or omission on the part of the petitioners or any of them is also an offence under the provisions of the Act, even then the charge-sheet cannot be held to be barred by law. It was also submitted that Section 89 of the Act only envisages that for an offence under the Act, the special procedure provided in the Act would be followed, but in the present case as the charge-sheet has not been filed for any of the offence punishable under the Act, the procedure as provided under it was not required to be followed. It was submitted that the cases under the Indian Penal Code and the Act are different and distinct offences and as such there is no bar in proceeding against the person in two different enactments, if they fall under the definition of offence mentioned under each Act. Under the Indian Penal Code every person who is found in the manufacture, sale and otherwise connected with the act of manufacture and sale and all who are responsible for the commission of the offence can be proceeded against.
30. I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law.
31. Section 89 of the Act giving overriding effect to the Act over all other food related laws reads as under:--
"89. Overriding effect of this Act over all other food related laws. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
32. Section 97 deals with repeal and savings which reads as follows:
"97. Repeal and savings. (1) With effect from such date as the Central Government may appoint in this behalf, the enactment and Orders specified in the Second Schedule shall stand repealed:
Provided that such repeal shall not affect:--
(i) the previous operations of the enactment and Orders under repeal or anything duly done or suffered there under; or
(ii) any right, privilege, obligation or liability acquired, accrued or incurred under any of the enactment or Orders under repeal; or
(iii) any penalty, forfeiture or punishment incurred in respect of any offences committed against the enactment and Orders under repeal; or
(iv) any investigation or remedy in respect of any such penalty, forfeiture or punishment, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed:
(2) If there is any other law for the time being in force in any State, corresponding to this Act, the same shall upon the commencement of this Act, stand repealed and in such case, the provisions of section 6 of the General Clauses Act, 1897(10 of 1897) shall apply as if such provisions of the State law had been repealed.
(3) Notwithstanding the repeal of the aforesaid enactment and Orders, the licences issued under any such enactment or Order, which are in force on the date of commencement of this Act, shall continue to be in force till the date of their expiry for all purposes, as if they had been issued under the provisions of this Act or the rules or regulations made thereunder.
(4) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act or Orders after the expiry of a period of three years from the date of the commencement of this Act."
33. The second schedule of the Act shows the enactments which were repealed after coming into force of Act which do not include any of the provisions of the IPC which deals with the acts covered under these provisions.
34. Section 6 of the General Clauses Act deals with the effect of repeal of Act making textual amendment in Act or Regulation which reads as follows:--
"6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not.
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
35. Section 26 of the General Clauses Act deals with provisions as to offences punishable under Section of two or more enactments, which reads as follows:--
"26. Provision as to offences punishable under two or more enactments. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
36. It is clear that though certain provisions of the Indian Penal Code and the Act overlap on the same subject, it will have to be considered as to whether a person committing an offence can be proceeded against, if the act complained of, may be an offence under two enactments independently. It will depend upon as to whether the offences alleged are distinct and different or the same and by virtue of the special Act being enacted on the subject matter whether general provisions have impliedly repealed. This issue have to be considered on the facts and circumstances of each case.
37. It is clear from the provisions of the General Clauses Act that if the act committed is an offence under two enactments, there is nothing barring for proceeding against them under two enactments but they cannot be sentenced for the same separately. Further, if they are distinct and different offence, then there is no bar for imposing separate sentence as well as it will not amount to double jeopardy as provided under Article 20(2) of the Constitution of India.
38. It is true that if there is any provision made covering a particular offence in respect of which there is a general law and a special law enacted subsequent to the general law, then normally the special law prevail over the same and even if there is no specific exclusion, if from the circumstances, it can be revealed that it is impliedly repealed then the provisions in the special law will prevail over that subject matter.
39. In the case of Jeevan Kumar Raut v. Central Bureau of Investigation reported in MANU/SC/1153/2009 : AIR 2009 SC 2763, Hon'ble Supreme Court has held that by virtue of Section 22 of Transplantation of Human Organ Act where a particular procedure has been given for dealing with offences under that Act, the general provisions regarding the investigation as provided under the Code of Criminal Procedure will not be applicable as it will have a overriding effect over the general procedure provided under the Criminal Procedure Code regarding investigation. In Paragraph 19 of the decision, Hon'ble Supreme Court has observed as follows:--
"Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down, therein. Respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section (2) of Section 173 of the Code did not and could not arise. In other words, if no police report could be filed, sub-section (2) of Section 167 of the Code was not attracted."
40. In Paragraph 29 of the same Judgement it has been further observed as follows:--
"In this case however, the respondent has not specifically been empowered both under the 1946 Act as also under the Code to carry out investigation and file charge sheet as is precluded from doing so only by reason of Section 22of Transplantation of Human Organs Act. It is doubtful as to whether in the event of authorization of officer of the department to carry out investigation on a complaint made by the third party he would be entitled to arrest the accused and carry on investigation as if he is a police officer he hope that parliament would take appropriate measure to suitably amend the law in the near future."
41. It is to be noted that in the above case, FIR was registered by CBI for offences under Sections 420, 342, 326, 506 and 120-B IPC as well as for offences under Sections 18 and 19 of Transplantation of Human Organ Act.
42. In the case of State of M.P. v. Kedia Leather and Liquor Ltd. and others reported in MANU/SC/0625/2003 : (2003) 7 SCC 389, Hon'ble Supreme Court considered the effect of Section 133 of the Code of Criminal Procedure and the provisions of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and considered the question as to whether by virtue of provisions under the above said Acts, Section 133 of the Code of Criminal Procedure is impliedly repealed and Hon'ble Court has held that as Section 133 of the Code and the two Acts were mutually exclusive and there is no impediment to their existence side by side two Act do not impliedly overrule section 133 of the Code. While considering the provisions, the Supreme Court has observed as follows.
"There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation.
When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley (1878) 3 AC 944 (HL). The continuance of existing legislation, in the absence of an express provision of repeal by implication burden lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred.
The necessary questions to be asked are:
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field. When the court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments."
43. The Constitution Bench of Hon'ble Supreme Court in Deep Chand v. State of U.P. reported in MANU/SC/0023/1959 : AIR 1959 SC 648, considered the question of repugnance between two statutes and how this will have to be considered as follows:--
"Repugnancy between two statutes may be ascertained on the basis of following three principles;
(1) Whether there is direct conflict between the two provisions;
(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature, and
(3) Whether the law made by Parliament and the law by the State Legislature occupy the same field."
44. Further, in the case of Municipal Corporation of Delhi v. Shiv Shankar reported in MANU/SC/0148/1971 : AIR 1971 SC 815, while considering the question as to whether the provisions of the Essential Commodities Act or Fruit Products Order made thereunder impliedly repealed Prevention of Food Adulteration Act and observed as follows:--
"The object and purpose of the Adulteration Act is to eliminate the danger to human life and health from the sale of unwholesome articles of food. The Essential Commodities Act on the other hand has for its object the control of the production, supply and distribution of, and trade and commerce in, essential commodities. In spite of this difference the two provisions may have conterminous fields of operation. The provisions of the Adulteration Act and of the Fruit Order are supplementary and cumulative in their operation and they can stand together. If the Adulteration Act or Rules impose some restrictions on the manufacturer, dealer and seller of vinegar then they have to comply with them irrespective of the fact that the Fruit Order imposes lesser number of restrictions in respect of these matters. The Parliament did not intend by enacting the Essential Commodities Act or the Fruit Order to impliedly repeal the provisions of the Adulteration Act and the Rules in respect of the vinegar. Both the statutes can function with full vigour side by side in their own parallel channels. Even if they happen to some extent to overlap, Section 26 of the General Clauses Act fully protects the guilty parties against double jeopardy or double penalty. Both the Adulteration Act and the Essential Commodities Act have been amended from time to time after their enactment. The subsequent amendments of the Adulteration Act and of the Essential Commodities Act by the Parliament and the amendment of the Adulteration rules would also tend to negative any legislative intendment of implied repeal of the Adulteration Act by the Essential Commodities Act or the Fruit Order."
45. In the case of Vishal Agarwal and another V. Chhatisgarh State Electricity Board and another reported in (2014) 3 SCC 676, Hon'ble Supreme Court has held that Section 151 of Electricity Act, 2003 will not cause any fetter on the right of the police to investigate a case under the Code of Criminal Procedure in respect of any cognizable offence has been committed which is an offence under the provisions of the Indian Penal Code as well.
46. In the case of Lalita Kumar v. Government of U.P. and others reported in MANU/SC/1166/2013 : (2014) 2 SCC 1, Constitution Bench of Hon'ble Supreme Court has held that on receipt of information disclosing a cognizable offence, it is mandatory for police to register FIR under Section 154 Cr.P.C. and FIR is required to be registered not only when information regarding commission of cognizable offence is received through an informant, but also when information about commission of such an offence is received by the police other than by way of an informant and police officer cannot avoid his duty of registering FIR if cognizable offence is disclosed.
47. In the case of Syed Kalelem v. M/s. Mysore Lakshmi Beedi and another reported in MANU/KA/0119/1992 : 1993 Cr.L.J. 232, learned Single Bench of Karnataka High Court has held that as regards the framing of charge under Section 420 IPC, it is to be stated that in view of Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, providing penalty for applying false trade description etc. and selling goods to which a false trade marks or false trade description is applied, a charge under Section 420 becomes wholly inapt. It was held that though there is an element of cheating in falsely applying to his goods the trade mark of another person or company it cannot be said that such an act by itself would attract Section 420 IPC. When there are specific provisions in the Trade and Merchandise Marks Act which is a self contained Act to punish the persons committing offences under the said Act, it would be improper to resort to Section 420 IPC, altogether ignoring those provisions.
48. In the case of M/s. Pepsico India Holdings (Pvt.) Ltd. and another v. State of U.P. and others reported in 2010 Manu (U.P.) 3189, a Division Bench of Allahabad High Court has held that for adulteration of food or misbranding, after coming into force of provisions of Food Safety & Standards Act, 2006 vide notification dated 29.7.2010, the authorities can take action only under the provisions of the Act as it postulates an overriding effects over all other food related law including the Prevention of Food Adulteration Act. In view of the specific provisions under the Act, the offences relating to adulteration of food that are governed under the Act after July 29, 2010 are to be treated as per the procedure to be followed for drawing and analysis of samples as have been provided for. The provisions of penalties and prosecution have also been provided therein. Therefore, before launching any prosecution against an alleged offence of food adulteration, it is necessary for the concerned authorities to follow the mandatory requirements as provided under Sections 41 and 42 of the Act and, therefore, the police have no authority or jurisdiction to investigate the matter under the Act. Section 42 empowers the Food Safety Officer for inspection of food business, drawing samples and standing them to Food Analyst for analysis. The designated officer, after scrutiny of the report of food analyst shall decided as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations to the Commissioner of Food Safety for sanctioning prosecution. It has been held by the Court that Sections 272 and 273 of IPC have been implied repealed by the Act and a person cannot be prosecuted under both enactments or separately under Sections 272 and 273 IPC.
49. In the case of Zahir Ahmed v. Azam Khan reported in 1996 Cr.L.J. 290, Single Bench of Hon'ble Calcutta High Court held that applying false trade descriptions etc. or selling goods to which false trade mark or false trade description is applied does not constitute an offence of cheating punishable under Section 420 IPC and framing of charge for the same is improper.
50. In the case of Avtar Singh v. State of Punjab reported in MANU/SC/0191/1964 : AIR 1965 SC 666, Hon'ble Supreme Court held that a theft of electricity is an offence against the Electricity Act and hence the prosecution in respect of that offence would be incompetent unless it is instituted at the instance of a person named in Section 50 of the said Act. It was further held that dishonest abstraction of electricity mentioned in Section 39 of the Act cannot be an offence under the penal code for under it alone it is not offence; the dishonest abstraction is by Section 39 made a theft within the meaning of the Indian Penal Code, that is, an offence of the variety described in the Code as theft.
51. In the case of D. Ramakrishnan v. Intelligence Officer Narcotic Control Bureau reported in JT 2009 (14) SC 473, Hon'ble Supreme Court in para 11 held that Section 80 of the N.D.P.S. Act provides that the provisions of the said Act or the rules made thereunder are in addition to and not in derogation of the Drugs and Cosmetics Act, 1940 or the rules made thereunder.
52. In the case of Suresh Nanda v. Central Bureau of Investigation reported in MANU/SC/7020/2008 : (2008) 3 SCC 674, Hon'ble Supreme Court held that Passports Act is a special Act and it would override the provisions of Cr.P.C. for the purposes of impounding of passport. It was further held that where there is a special Act dealing with specific subject resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special Act the rule that general provision should yield to the specific provision is to be applied.
53. In the case of the Institute of Chartered Accountants of India v. Vimal Kumar Surana & another reported in JT MANU/SC/1015/2010 : 2010 (13) SC 356, the question for consideration before Hon'ble Supreme Court was whether the provisions contained in Sections 24, 24-Aand 26 of the Chartered Accountants Act, 1949 operate as a bar against the prosecution of a person who is charged with the allegations which constitute an offence or offences under other laws including the Indian Penal Code. As per facts of the case an FIR was registered and after investigation charge-sheet was filed by the investigating agency before the trial Court, who ordered to frame charge against the accused for offences under Sections 419, 468, 471 and 472 IPC. The order of charge was challenged by the accused on the ground that in view of the special mechanism contained in the said Act for prosecution of a person violating Sections 24, 24-A and 26, he cannot be prosecuted under the IPC. It was held by the Hon'ble Court that prohibition contained in Section 28 of the said Act against prosecution of a person except on a complaint made by or under the order of the Council or of the Central Government is attracted only when such person is sought to be prosecuted for contravention of the provisions contained in Section 24 or Sub-section (1) of Sections 24-A, 25 or 26 and not for any act or omission which constitutes an offence under the IPC. It was further held that if the particular act of a member of the Institute or a non member or a company results in contravention of the provisions contained in Section 24 or Sub-section (1) of Sections 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or Sub-section (2) of Sections 24A, 25 or 26 and such member or non member or company can also be prosecuted for any identified offence under the IPC. It was also held that the accused could have been simultaneously prosecuted for contravention of Sections 24, 24-A and 26 of the Act and for the offences defined under the IPC, but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice for the same offence. The submission of the accused that the Chartered Accountants Act, 1949 is a special legislation vis-à-vis IPC and a person who is said to have contravened the provisions of sub-section (1) of Section 24, 24-A, 25 and 26 cannot be prosecuted for an offence defined under the IPC was not accepted. It was also held that victim of the offence under IPC cannot be deprived of his right to prosecute the offender under IPC.
54. In the case of State (NCT of Delhi) v. Sanjay reported in MANU/SC/0761/2014 : (2014) 9 SCC 772, the principle question which arose for consideration before the Hon'ble Court was whether the provisions contained in Section 21 and 22 and other sections of the Mines & Minerals (Development and Regulation) Act, 1957 operate as bar against prosecution of a person who has been charged with allegation which constitute offences under Sections 379/114 and other provisions of the Penal Code, 1860. In other words, whether the provisions of Mines and Minerals Act explicitly or impliedly excludes the provisions of Indian Penal Code when the act of an accused is an offence both under the Indian Penal Code and under the provisions of Mines and Minerals (Development and Regulation) Act.
55. After considering the relevant provisions and a large number of decisions Hon'ble Court held that the provisions of Section 22 of the Mines & Minerals Act is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the said Act, the officer empowered and authorized under this Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of this Act, the police officer cannot insist Magistrate for taking cognizance under this Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of this Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of this Act and not for any act or omission which constitute an offence under Penal Code. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code. It was also held that from a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of this Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of State's possession without the consent, constitute an offence of theft.
56. In the present case as neither the FIR was registered nor charge-sheet was filed nor charge has been framed against any of the accused-petitioners for any offence under the provisions of the Act, in view of the aforesaid legal position it can not be said that provisions of the Act absolutely excludes the applicability of provision of IPC and other statutes constituting offences for which charges have been framed and it can also not be said that ACD was not competent to register FIR and submit charge-sheet in the Court below. Allegation is not only for manufacturing and selling "Fake Deshi Ghee" in market in the brand names of some reputed companies but also to sell it as genuine and pure deshi ghee for the consumption and use of public at large.
57. Consequently, submissions made regarding second common ground raised on behalf of the petitioners, being meritless, are also not tenable and are rejected.
58. Having considered both the preliminary common objections raised on behalf of the petitioners, it would now be appropriate to consider and decide individually case of each of the accused-petitioners whether the order of charge to his extent is sustainable in law or not, but before doing that, it would be useful to consider the well settled legal position prevalent in regard to framing of charge for an offence against an accused.
59. In the case of Sajjan Kumar v. Central Bureau of Investigation reported in MANU/SC/0741/2010 : (2010) 9 SCC 368, Hon'ble Supreme Court in para 21 of the judgment has laid down the principles which are to be kept in mind by the Court while exercising jurisdiction under Sections 227 & 228 Cr.P.C., which are as below :
"(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the state of Sections 227 & 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of al the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept al that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused at this stage, he is not to see whether the trial will end in conviction or acquittal."
60. In the case of Amit Kapoor v. Ramesh Chander & Anr. reported in MANU/SC/0746/2012 : (2012) 9 SCC 460, Hon'ble Supreme Court has held that at the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.
61. In the case of Sheoraj Singh Ahlawat & Ors. v. State of Uttar Pradesh & Anr. reported in MANU/SC/1011/2012 : (2013) 11 SCC 476, has held as below :
"While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge."
62. In the case of Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra reported in MANU/SC/7528/2008 : (2008) 10 SCC 394, it was held by Hon'ble Supreme Court that if two views are equally possible and the Judge is satisfied with evidence produced giving rise to suspicion only, as distinguished from grave suspicion, he would be fully within his right to discharge the accused. At this stage he is not to see whether the trial will end in conviction or not. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in Section 227 Cr.P.C. postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out for the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose for finding whether or a not a prima facie case against the accused has been made out. The test to determine a prima facie depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application.
63. In the Case of Gurmeet Singh Bagga v. State of Rajasthan & anr. reported in MANU/RH/0878/2009 : 2009 (3) RCC 1367, learned Single Bench of this High Court held that while dealing with the issue of framing of charge if upon consideration of the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution, if the trial Court considers that there is no sufficient ground for proceeding against the accused, he is duty bound to discharge him and to record the reasons for doing so. Section 277 Cr.P.C., therefore, imposes a duty on the trial Judge, firstly, to hear both the sides i.e. the prosecution and the accused, and secondly, to consider the record of the case and the documents submitted therewith. Naturally, the record of the case would include the statements given to the accused under Section 208 Cr.P.C. Thus, at the time of framing of the charge, the learned trial Judge has to examine even the exculpatory statements, copies of which were given to the accused under Section 208 Cr.P.C. Afterall, throughout the criminal proceeding the Judge cannot act either as a spokesman for the prosecution, or as a post office for the prosecution. Being an impartial umpire, he is legally bound to equally weigh both the sides after examining the complete record of the case. Therefore, while framing the charge he must consider the exculpatory statements which were supplied to the accused and form part of the record of the case.
64. Thus, the well settled legal position is that at the stage of framing charge for an offence against an accused only prima facie has to be seen whether sufficient grounds are available on record to proceed against him and even strong suspicion is enough to frame charge and at this stage of the proceedings evidence is not required to be analyzed as it is required to be done at the final stage after trial. It is also well settled that at this stage of the proceedings only the charge-sheet and evidence collected during investigation which has been produced alongwith the charge-sheet is required to be considered and the defence or proposed defence of the accused cannot be seen although in exceptional cases such documentary evidence can be considered by the Court which he found to be admitted or undisputed even if it is filed on behalf of the accused.
Accused-Petitioner- Shri Paras Jain
(Criminal Revision Petition No. 1329/2014)
65. Learned trial Court has ordered to frame charge against the petitioner for the offence under Section 420 read with Section 120-B IPC. Vide Para 140 of the impugned order, learned Court below on the basis of evidence collected during investigation and more particularly on the basis of transcriptions of conversations allegedly taken place between petitioner and co-accused-Shri Dinesh Singhal several times from time to time and the recoveries made from the business premises of the petitioner and the reports of samples taken from him has found that he entered into criminal conspiracy with Shri Dinesh Singhal and purchased from him "Fake Deshi Ghee" knowing well that it is "Fake Deshi Ghee" of different brands for the purpose of selling it for the consumption of public at large though several other dealers/sellers. It has further been found by the trial Court that as per the FSL reports the samples of NOVA brand Ghee taken from the business premises of the petitioner have been found to be substandard. It has also been found that petitioner purchased "Fake Deshi Ghee" in the name of various brands manufactured by co-accused-Shri Dinesh Singhal and Subhash Gupta knowing it well that it is fake and sold it in the market for the consumption of public at large and in this manner he instigated/abated/aided co-accused to manufacture "Fake Deshi Ghee".
66. It was submitted by the learned counsel for the petitioner that only on the basis of mobile conversations allegedly taken place between petitioner and co-accused, no offence of any kind even prima facie can be said to be made out against the petitioner as at the most these conversations are in respect of business dealings between petitioner and co-accused and there is no criminality in it. It was further submitted that petitioner is an authorized dealer of NOVA brand pure ghee manufactured by M/s. Sterling Agro Industries Limited for past several years and there is no question of its samples being adulterated, sub-standard, unsafe or misbranded in any manner. As per FSL report some of the samples have been found to be sub-standard by the reason that the procedure prescribed for taking samples was not properly followed. It was also submitted that no evidence has been collected showing that co-accused-Shri Dinesh Singhal manufactured Deshi Ghee in the brand name of NOVA and, therefore, it cannot be said that Ghee of this brand name recovered from the business premises of the petitioner had connection in any manner with the Ghee allegedly manufactured by co-accused. As per evidence collected during investigation it can be said that co-accused-Shri Dinesh Singhal manufactured Ghee in the brand name of INNOVA, but from the possession of the petitioner no Ghee of this brand name has been recovered. It was further submitted that for an offence to be made out under Section 420 IPC, it is required to be shown misrepresentation/inducement or deception on the part of the accused and that too from the very inception i.e. when the offence was committed, but in the present case there is no such representation/inducement/deception on the part of the petitioner and even it has not been shown whom the petitioner has decepted and in what manner. It was also submitted that no evidence is available on record to show knowledge on the part of the petitioner that co-accused-Shri Dinesh Singhal is infact engaged in the manufacturing of "Fake Deshi Ghee" misusing name of various brands and in absence thereof, it cannot be said that the petitioner entered into criminal conspiracy with him. It was further submitted that even if for the sake of arguments it is admitted that petitioner has committed offence under Section 420 read with Section 120-B IPC, even then in absence of charge for an offence under the provisions of the Prevention of Corruption Act, he cannot be tried alongwith co-accused and his defence would be prejudiced if he is allowed to be tried alongwith co-accused. It was submitted that even if the evidence collected and allegations made in the FIR are accepted to be correct and true in its entirety even then at the most it can be said that the petitioner was infact in business of purchasing and selling oil, ghee etc. and some of the samples were found to be sub-standard and thus, it cannot be said that offence allegedly committed by the petitioner is part and parcel of the same transaction and it was in continuous of the offences committed by other accused.
67. In support of his submissions, learned counsel for the petitioner relied upon some decisions also.
68. On the other hand, learned Additional Advocate General inviting attention of the Court towards transcriptions of conversations allegedly taken place between petitioner and co-accused through mobile phones from time to time and some other evidence available on record, submitted that these are not pure and simple conversations regarding business transactions between petitioner and co-accused, but it is clear from these that it was in clear knowledge of the petitioner from the very beginning that co-accused is manufacturing "Fake Deshi Ghee" in the name of various brands and even then in criminal conspiracy with him, petitioner purchased in large quantity ghee so manufactured by him from time to time knowing well it is "Fake Deshi Ghee" and of sub-standard quality and also knowing well that it is not of a genuine brand name and then further sold it in the open market for the consumption of the public at large through some dealers and retailers and he by his act induced public at large to purchase it for consumption considering it as pure ghee of a genuine brand name and the public would never have purchased if it were not so deceived.
69. On consideration of submissions made on behalf of the respective parties and the material made available on record including the transcriptions of conversations allegedly taken place between petitioner and co-accused-Shri Dinesh Singhal and in the light of well settled legal position, I found prima facie sufficient evidence is available on record so as to frame charge for the aforesaid offence against the petitioner and no illegality or perversity has been committed by the learned trial Court requiring interference of this Court. It cannot be said that the charge against the petitioner is groundless. Perusal of order under challenge shows that the learned trial Court after considering the evidence made available on record and recording sufficient reasons in support thereof has passed it.
70. Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.
Accused-Petitioner-Rajesh Tinker
(Criminal Revision Petition No. 131/2015)
71. Vide impugned order learned trial Court has ordered to frame charge against this petitioner for offences under Sections 13(1)(a) read with Section 13(2) and Section 12 of the Prevention of Corruptions Act, 1988, Sections 191, 213, 217 and Section 420 read with Section 120-B IPC.
72. Vide Para 148 of the impugned order, on the basis of evidence collected during investigation and more particularly on the basis of transcriptions of conversations allegedly taken place between petitioner and co-accused-Shri Dinesh Singhal several times from time to time and also between co-accused-Shri Dinesh Singhal and co-accused-Shri Subhash Gupta and one Shri Rajkumar, it has been found by the learned trial Court that the petitioner despite being a Food Safety Officer was having very close and intimate relations with co-accused-Shri Dinesh Singhal and was providing important and confidential official information to him from time to time. It has also been found that at the behest of co-accused-Shri Dinesh Singhal petitioner avoided to take samples from the food articles seized from the business premises of Shri Rajkumar. It has also been found by the Court below that it was well within the knowledge of the petitioner that co-accused-Shri Dinesh Singhal is involved in manufacturing of "Fake Deshi Ghee" at a large scale in the brand names of various companies, but even then he did not take appropriate steps to prevent it. It has also been found that the petitioner in a capacity of a public servant prevented another public servant Shri Naresh, Food Safety Officer posted in Sawaimadhopur District, to take samples of "Fake Deshi Ghee" from a businessman of Gangapurcity in return of gratification.
73. It was submitted by the learned counsel for the petitioner that at the relevant time petitioner was posted as Food Safety Officer in the local area of District Jaipur-II, whereas the factory, shop, residence and business premises of co-accused-Shri Dinesh Singhal were situated in some other area not within the jurisdiction of the petitioner and no work of any kind of co-accused was pending with the petitioner and he was not even entitled to conduct any proceedings against him and, therefore, there was no occasion for the petitioner to make demand of gratification from co-accused or to provide him some important and confidential official informations. It was further submitted that in the FIR allegation of demand of gratification from co-accused-Shri Dinesh Singhal or any other person has not been made and from the conversations allegedly taken place between them also it is not revealed that petitioner has ever made demand of gratification from any person or accepted it at any point of time. From the content and substance of the conversations, at the most it is revealed that co-accused-Shri Subhash Gupta was working as a 'Mukhbir' of the Department and he was supplying information for adulterated food articles to the Department from time to time and in that capacity petitioner being Food Safety Officer had conversations with him.
74. On the other hand, it was submitted by the learned Additional Advocate General that conversations between petitioner and co-accused-Shri Dinesh Singhal and between co-accused-Shri Singhal and others very much indication of the fact that petitioner was having long standing close and intimate relations with the co-accused to the extent that he was supplying them confidential official informations and through him co-accused-Shri Dinesh Singhal was assuring others to escape from law after paying gratification to concerned public servants and in this view of the matter it is irrelevant that at the relevant time he was posted as Food Safety Officer in an area within which factory, shop, residence or business premises of co-accused-Shri Dinesh Singhal were not situated and no work of any kind of co-accused was pending with the petitioner and there was no occasion for him to demand gratification from accused or influence any other public servant in any manner.
75. On consideration of submissions made on behalf of the respective parties and the material made available on record and more particularly looking to the content and substance of the conversations allegedly taken place as pointed out earlier, I prima facie found that sufficient grounds to frame charge for the aforesaid offences against petitioner are available. There was no occasion for the petitioner to have telephonic talks with co-accused so many times from time to time and even to share with them confidential and important official informations. In the facts and circumstances of the case, it is irrelevant at this stage of the proceedings that the petitioner was posted in a different area and no work of any kind of co-accused was directly pending with him.
76. Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.
Accused-Petitioner-Man Singh
(Criminal Revision Petition No. 1467/2014)
77. Vide impugned order learned trial Court has ordered to frame charge against him for the offence under Sections 420 read with Section 120-B and Section 214 IPC and for offence under Section 11 of the Prevention of Corruption Act, 1988 and in the alternate for offence under Section 213 IPC and also for offences under Sections 7, 8, 13(1)(a), 13(1)(d) read with Section 13(2) of the said Act.
78. As per Para 149 of the impugned order the learned trial Court on the basis of evidence collected during investigation and more particularly on the basis of transcriptions of conversations allegedly taken place between petitioner and co-accused-Shri Dinesh Singhal several times from time to time, it has been found that petitioner despite being posted as Constable at Police Station Vishwakarma, Jaipur at the relevant time was having very close and intimate relations with co-accused and despite having knowledge of the fact that co-accused is engaged in the business of manufacturing of "Fake Deshi Ghee" at a large scale entered into criminal conspiracy with him and helped co-accused so that he can carry on his business with ease and comfort. It has also been found that petitioner as a public servant accepted and obtained or agreed to accept or obtain from co-accused for himself gratification in cash or kind from time to time as a motive or reward for showing favour to him in exercise of his official functions.
79. It was submitted by the learned counsel for the petitioner that at the relevant time petitioner was posted only as a Constable at Police Station Vishwakarma, Jaipur and he was having no authority of law to take action in any manner against co-accused-Shri Dinesh Singhal and, therefore, by any stretch of imagination it cannot be said that petitioner entered into criminal conspiracy with co-accused and helped him by misusing his official capacity for the continuous manufacturing of "Fake Deshi Ghee" by co-accused. It was further submitted that there is no iota of evidence available on record even prima facie to show that petitioner as a public servant accepted or obtained from co-accused gratification of any kind as a motive or reward for showing favour to him.
80. On consideration of submissions made on behalf of the respective parties and in the light of the evidence available on record and the well settled legal position, I do not find illegality or perversity in the impugned order requiring interference by this Court. It is revealed that learned trial Court after due consideration and recording sufficient reasons has ordered to frame charge for the aforesaid offences against the petitioner.
81. Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.
Accused-Petitioner-Mukesh Kasera
(Criminal Revision Petition No. 1353/2014)
82. Vide impugned order learned trial Court has ordered to frame charge for offence under Section 420 read with Section 120-B and Section 465 IPC against the petitioner.
83. As per Para 131 of the impugned order on the basis of evidence collected during investigation and more particularly on the basis of transcriptions of conversations allegedly taken place between petitioner and co-accused-Shri Dinesh Singhal several times from time to time, it has been found by the learned trial Court that from the very inception it was well within the knowledge of the petitioner that co-accused-Shri Dinesh Singhal is engaged in the business of manufacturing of "Fake Deshi Ghee" at a large scale in the brand names of several reputed companies and with this knowledge he entered into criminal conspiracy with co-accused and supplied raw material in the form of edible oil and vegetable oil in huge quantity from time to time and thereby instigated and aided him to commit office of cheating under Section 420-B IPC by selling and supplying "Fake Deshi Ghee" so manufactured for the consumption of public at large though various sellers/dealers. It has also been found by the Court below that it was also in the knowledge of petitioner that co-accused-Shri Dinesh Singhal is having very close and intimate relations with some of the officers of Medical & Health Department and Police and with their help, co-accused-Shri Dinesh Singhal and Shri Subhash Gupta are able to prevent any legal action against them as the concerned officers used to give information in advance about the action likely to be taken against them. It was also found that despite the fact that petitioner was having knowledge about the nefarious activities of co-accused, he continued to supply raw material to him in huge quantity and this is clear indication of criminality on the part of the petitioner. On the basis of conversations, it has also been found that petitioner sought help of co-accused-Shri Dinesh Singhal in connection with the case of one Shri Sonu, who was arrested in a case of sale of "Fake Deshi Ghee" as co-accused is in a position to get the FSL report tampered with. On the basis of evidence and finding, charge for offence under Section 420-B read with Section 120-B IPC has been ordered to be framed against the petitioner.
84. As per Para 139 of the order, it has further been found by the Court below that in regard to the business transaction between petitioner and co-accused, petitioner prepared forged bills etc. and on that basis charge for offence under Section 465 IPC has also been ordered to be framed against him.
85. In support of the petition, learned counsel for the petitioner raised following grounds:--
"(1) The order has been passed mechanically in a routine manner without application of mind and without appreciati
...85. In support of the petition, learned counsel for the petitioner raised following grounds:--
"(1) The order has been passed mechanically in a routine manner without application of mind and without appreciating the requirement of law to frame charge for an offence against an accused and that too only on the basis of transcriptions of alleged mobile conversations.
(2) From the evidence available on record it is clear that petitioner is an authorized and registered wholesale dealer of edible oil and Vanaspati Ghee of several reputed and branded companies of long standing and he supplied that material to several retailers and manufacturers including co-accused-Shri Dinesh Singhal in huge quantity throughout the whole of the State through bills/invoices against payment of sale consideration and, therefore, no criminality of any kind can be found on the part of the petitioner even if such material was also supplied by him to co-accused-Shri Dinesh Singhal in huge quantity. Mere sale or supply of such material by a whole-saler to a manufacturer, who in turn, can use it for the purpose of manufacturing of "Fake Deshi Ghee" by aiding in it some other material does not itself show that the supplier entered into criminal conspiracy with the manufacturer, so that, such "Fake Deshi Ghee" can be manufactured and sold in the market for the consumption by public at large.
(3) There is no reliable evidence available on record showing even prima facie that it was in the knowledge of the petitioner that the raw material supplied by him to co-accused-Shri Dinesh Singhal is being used for the manufacturing of "Fake Deshi Ghee" and with this knowledge he continued to supply such material in large quantity and he thereby instigated or objected or aided co-accused to commit offence under Section 420 IPC and such act on the part of the petitioner is clear indication of criminal conspiracy with co-accused or otherwise criminality on his part. It is a pure and simple case of business transaction between petitioner and co-accused to which colour of criminality has been given by ACB.
(4) Even if for the sake of arguments it is admitted that petitioner was aware of the fact that the raw material supplied by him to co-accused is used by him for the purpose of manufacturing of "Fake Deshi Ghee", even then such knowledge on the part of the petitioner cannot make out criminal conspiracy with co-accused as one of the most important ingredient for the offence of conspiracy is agreement between two or more persons to do something illegal, but in the present case no cogent or legally admissible evidence is available on record against the petitioner.
(5) Charge against petitioner has not been properly framed as it has several factual mistakes and errors in it and it has been framed without mentioning several facts legally required for framing charge for an offence showing non application of judicial mind on the part of the learned trial Court. For example, it has been mentioned that M/s. Bharat Food Products is of co-accused-Shri Dinesh Singhal, whereas actually it belongs to one Shri Kamal. The charge for offence under Section 420 read with Section 120-B IPC has been framed in a very vague and casual manner.
(6) It has not been made clear how offence under Section 465 IPC is made out against the petitioner. Mere preparation of more bills in the name of one firm of the buyer in comparison of another firm cannot by any stretch of imagination amount forgery as defined under Section 463 IPC or preparation of a false document within the meaning of Section 464 IPC. Particulars of the alleged forged bills have also not been mentioned in the charge.
(7) There is no abnormality in the fact that raw material has also been supplied to firm M/s. Singhal Footwears belonging to co-accused-Shri Dinesh Singhal as this firm was authorized, apart from other goods, to produce and sale edible oil etc. also and, therefore, no criminality of any kind can be attributed to petitioner merely because raw material has also been supplied to this firm."
86. On the other hand, learned Additional Advocate General submitted that content and substance of conversations between petitioner and co-accused-Shri Dinesh Singhal shows relation between them was not confined only to business transaction, but it was more than that and petitioner was well aware of the purpose for which co-accused was purchasing edible oil and vegetable Ghee from him in large quantity and it was also in his knowledge that due to close relationship and intimacy of the co-accused with some officers of the concerned Departments, there was no likelihood of any legal action to be taken against him. It was also submitted that it was not a pure and simple business transaction between a seller and purchaser of some goods. It was further submitted that petitioner by abetted/instigated/aided co-accused to commit offence of cheating under Section 420-B IPC for selling "Fake Deshi Ghee" so manufactured for the consumption by public at large.
87. On consideration of submissions made on behalf of the respective parties and the material made available on record, I am of the view that no illegality or perversity has been committed by the learned trial Court to frame charge for offence under Section 420-B read with Section 120-B IPC against the petitioner as from the transcriptions of the alleged conversations between petitioner and co-accused-Shri Dinesh Singhal it is prima facie revealed that the relation between them was not pure and simple of a business transaction only, but petitioner was well aware with the purpose for which co-accused was purchasing edible oil and vegetable Ghee in large quantity from time to time from him and even then he continued to supply it to him. This act on the part of the petitioner is clear indication of his criminality and he by his act facilitated co-accused to commit offence under Section 420 IPC by supplying "Fake Deshi Ghee" so manufactured for the consumption of public at large. It is clear that public at large was deceived to purchase "Fake Deshi Ghee" as pure.
88. But, so far as charge for offence under Section 465 IPC is concerned, I am of the firm view that even if allegations made in FIR and evidence collected during investigation is taken to be at its face value, even then essential ingredients to make out such an offence are not available and to that extent the impugned order is liable to be quashed and set aside. For an offence of forgery to be made out, it is essential to show that some false document as defined under Section 464 IPC was made by the accused, but in the present case no false document can be said to be made by the petitioner.
89. Consequently, the revision petition is partly allowed and the impugned order to the extent of framing of charge for offence under Section 465 IPC is quashed and set aside, but to the extent of charge for the offence under Section 420 read with Section 120-B IPC it is dismissed. The stay application also stands disposed of.
Accused-Petitioner-Sandeep Agrawal
(Criminal Revision Petition No. 1218/2014)
90. Vide impugned order charge for offences under Sections 420 read with Section 120-B, 217, 119 IPC and for offences under Section 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988 are ordered to be framed against the petitioner.
91. As per para 147 of the impugned order, on the basis of transcriptions of conversations allegedly taken place by mobile phones between petitioner and co-accused-Shri Dinesh Singhal and Shri Subhash Gupta several times from time to time, it has been found by the learned Court below that petitioner was well aware of the fact that co-accused-Shri Dinesh Singhal and Shri Subhash Gupta are engaged in the business of manufacturing of 'Fake Deshi Ghee" at a large scale in the brand names of several reputed companies and they by deceiving public at large are selling it in the market as genuine for consumption by public at large through various dealers/sellers, but even then petitioner despite being a public servant in the capacity of a Food Safety Officer and he despite having a duty to prevent manufacturing and selling of such 'Fake Deshi Ghee" voluntarily concealed it and omitted to take necessary steps to prevent such manufacturing and sale and rather facilitated continuous manufacturing and sale of such Ghee by co-accused. It has further been found that it was the duty of the petitioner as a Food Safety Officer to take samples of food so manufactured by co-accused so that commission of offence by him can be detected and prevented, but he failed to do so. It has also been found that petitioner being a public servant did not discharge his duty properly and as a Food Safety Officer failed to take samples of Ghee so manufactured by co-accused with intention to save them from legal punishment. It has also been found that petitioner was having a very close and intimate relation with co-accused-Shri Dinesh Singhal and Shri Subhash Gupta and he in the capacity of Food Safety Officer shared with them several confidential official informations. It has been found that inaction and omission on the part of petitioner shows his criminal conspiracy with co-accused, which facilitated commission of offence under Section 420 IPC by co-accused. Misconduct as envisaged under Section 13(1) of the P.C. Act has also been found on the part of the petitioner.
92. It was submitted by the learned counsel for the petitioner that it is an admitted fact that samples were taken by petitioner of the food items manufactured by the co-accused and after obtaining FSL report an appropriate proceedings were also launched against him in which penalty was also imposed by the competent authority and, therefore, it is hard to believe that petitioner entered into criminal conspiracy with co-accused and in pursuance thereof voluntarily and intentionally omitted to take appropriate legal action against him as a public servant and thereby facilitated commission of offence of manufacturing and sale of 'Fake Deshi Ghee" by co-accused for the consumption of public at large. It was also submitted that even learned trial Court has found that from the conversations, it is not revealed that petitioner accepted or agreed to accept gratification either in cash or in kind, but even then charge for offence under Section 13(1)(a) read with Section 13(2) of the P.C. Act has been ordered to be framed. It was further submitted that even if for the sake of arguments it is admitted that petitioner as public servant failed to take appropriate steps against co-accused, even then at the most it may amount to misuse of his office calling for departmental proceedings against him, but not any criminal proceedings. It was also submitted that application for discharge under Section 227 and 239 read with Section 245 Cr.P.C. dated 30.4.2014 filed by the petitioner was dismissed by the trial Court with recording reasons in support thereof, whereas legally reasons are required to be recorded. The content and substance of the alleged conversations between petitioner and co-accused at the most shows talks on official matters as per law as a Food Safety Officer is obliged to have with a food business operator.
93. On the other hand, it was submitted by the learned Additional Advocate General that learned trial Court after due consideration of evidence collected during investigation and recording reasons in support of the impugned order has rightly ordered to frame charge for the aforesaid offences against the petitioner.
94. On consideration of submissions made on behalf of the respective parties and the material made available on record and in the light of the well settled legal position, I do not found any illegality or perversity in the impugned order requiring interference by this Court. Perusal of the order under challenge reveals that learned trial Court has passed it after due consideration of the evidence collected during investigation and after following the requirement of law therefor. Merely because once samples of food items were taken by the petitioner from the business premises of co-accused, it cannot be said that he was not hand in glove with co-accused or he is not guilty of dereliction of his duties or abuse of his offence. It can also not be said that conversations are only of official nature. So far as issue of invalidity of the order of prosecution is concerned, the same has also been challenged by the petitioner by way of S.B. Civil Writ Petition No. 10022/2014 and it has been considered and rejected by this Court vide a separate order passed today in that petition and, therefore, the same issue is not required to be considered and decided in this petition.
95. Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.
Accused-Petitioner-Shri Shrikant Lakhotiya
(Criminal Revision Petition No. 1327/2014)
96. Vide impugned order learned trial Court has ordered to frame charge under Section 420 read with Section 120-B IPC.
97. As per Para 131 of the impugned order, on the basis of evidence collected during investigation and more particularly on the basis of transcriptions of conversations allegedly taken place between petitioner and co-accused-Shri Dinesh Singhal several times from time to time, it has been found by the learned trial Court that from the very inception it was well within the knowledge of petitioner that co-accused-Shri Dinesh Singhal is engaged in the business of manufacturing and sell of "Fake Deshi Ghee" at a large scale in the brand names of several reputed companies and with this knowledge he entered into criminal conspiracy with co-accused and supplied raw material in the form of edible oil and vegetable oil in huge quantity from time to time to co-accused and thereby instigated and aided him to commit offence of cheating under Section 420 IPC by selling and supplying "Fake Deshi Ghee" so manufactured by him for the consumption of public at large through various sellers/dealers. It was also found that despite the fact that petitioner was having the knowledge about the nefarious activities of co-accused, he continued to supply raw material to him in huge quantity and this is clear indication of criminality on the part of the petitioner. On the basis of evidence and this finding charge for offence under Section 420 read with Section 120-B IPC has been ordered to be framed against the petitioner.
98. It was submitted by the learned counsel for the petitioner that charge for offence under Section 420 IPC has been framed against the petitioner with the aid of Section 120-B IPC i.e. criminal conspiracy with co-accused-Shri Dinesh Singhal, whereas no iota of evidence is available on record disclosing conspiracy on the part of the petitioner and even it has not been shown what was the point of time when such conspiracy between the two started and in what manner. It has also not been disclosed what was the meeting of mind between them and for what particular act. It was further submitted that petitioner is a registered and authorized wholesale dealer of long standing of edible oil and vegetable ghee and he in that capacity has supplied and sold these food articles to several manufacturers and retailers including co-accused-Shri Dinesh Singhal from time to time through bills against sale consideration and only by that reason criminality on the part of the petitioner cannot be attributed as it is a pure and simple business transaction between them. It was also submitted that no reliable evidence is available on record showing even prima facie that petitioner was aware of the purpose for which co-accused was purchasing aforesaid food articles from him and in absence thereof it cannot be said that petitioner in any way instigated co-accused for the manufacturing and supplying of "Fake Deshi Ghee" as genuine in the brand names of various reputed companies for the consumption of public at large through retailers/dealers and thereby deceived them. No criminality can also be found against petitioner by the reason that he sold edible oil etc. to one of the firms of co-accused M/s. Singhal Footwear Corporation because aforesaid firm is authorized to deal in, apart from other goods, Deshi Ghee, Vanaspati Ghee, Vegetable Ghee and edible oil also.
99. On the other hand, learned Additional Advocate General submitted that content and substance of conversations between petitioner and co-accused-Shri Dinesh Singhal shows relation between them were not confined only to business transaction, but it was more than that and petitioner was well aware of the purpose for which co-accused was purchasing edible oil and vegetable ghee from him in large quantity. It was further submitted that petitioner by his act abetted/aided co-accused to commit offence of cheating punishable under Section 420 IPC for selling "Fake Deshi Ghee" manufactured by him for the consumption of public at large.
100. On consideration of submissions made on behalf of the respective parties and the material made available on record, I am of the view that no illegality or perversity has been committed by the learned trial Court to frame charge for the offence under Section 420 read with Section 120-B IPC against the petitioner as from the transcriptions of the alleged conversations between petitioner and co-accused-Shri Dinesh Singhal, it is revealed that relation between them was not pure and simple of a business transaction only, but petitioner was well aware with the purpose for which co-accused was purchasing edible oil and vegetable ghee in large quantity from time to time from him but even then he continued to supply it to him. This act on the part of the petitioner is clear indication of his criminality and he by his act facilitated co-accused to commit offence under Section 420 IPC by supplying "Fake Deshi Ghee" so manufactured for the consumption of public at large. It is clear that public at large was included to purchase "Fake Deshi Ghee" as pure and genuine.
101. Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.
Accused-Petitioner-Devendra Ranawat
(Criminal Revision Petition No. 1352/2014)
102. Vide impugned order learned trial Court has ordered to frame charge for the offences under Sections 119, 213, 217 and 420/201-B IPC and for offences under Sections 7, 13(1)(d) read with Section 13(2) and in the alternative for offence under Section 15 of the Prevention of Corruption Act, 1988.
103. As per Para 144 of the impugned order, on the basis of evidence collected during investigation and more particularly on the basis of transcriptions of some of the conversations allegedly taken place between petitioner and co-accused-Shri Dinesh Singhal and som other persons and statements recorded under Section 161 Cr.P.C. it has been found by the learned Court below that petitioner as Food Safety Officer was well aware of the fact that co-accused-Shri Dinesh Singhal is infact involved in the business of manufacturing "Fake Deshi Ghee" at large scale. It has further been found that petitioner being posted as Food Safety Officer at Bhilwara was bound to discharge his official duties in an appropriate manner, but he on behest of co-accused-Shri Dinesh Singhal and after agreeing to accept an amount of Rs. 30,000/- as gratification from him by misusing his office as a public servant did not take necessary steps in the exercise of his official functions. It has also been found that in criminal conspiracy with co-accused-Shri Dinesh Singhal petitioner by obtaining gratification from him and misusing his official position extended assistance to co-accused to manufacture and sale "Fake Deshi Ghee" in market. It has been found that petitioner despite being a public servant in the capacity of Food Safety Officer omitted to take samples of "Fake Deshi Ghee" manufactured and sold by co-accused to a dealer at Bhilwara and thus, failed to prevent commission of offence by co-accused.
104. It was submitted by the learned counsel for the petitioner that even if for the sake of arguments evidence collected during investigation including the conversations relied upon by the learned trial Court in support of the impugned order is fully accepted even then sufficient grounds are not available on record even prima facie to raise strong suspicion against petitioner to frame charge for the aforesaid offences or any of them. It was submitted that there is no evidence that petitioner by entering into criminal conspiracy abetted co-accused to manufacture and sell "Fake Deshi Ghee".
105. On consideration of submissions made and the reasons recorded by the learned trial Court in support of the impugned order, I do not find any illegality or perversity in the same requiring interference by this Court. Perusal of order shows that it has been passed after due consideration of evidence made available on record and following the legal requirement therefor. It cannot be said that sufficient grounds are not available even prima facie to proceed against the petitioner. So far as various other grounds taken on behalf of the petitioner in written arguments are concerned, in my view the same can be considered at the conclusion of trial. Similarly, issue of invalidity of order of production sanction on the ground of incompetency of the authority which has granted it or on any other ground can also be considered by the trial Court after parties lead their evidence as it is required to be seen whether failure of justice has been occasioned as a result thereof or not.
106. Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.
Accused-Petitioner-Gajendra Kumar Singhal & Anr.
(Criminal Revision Petition No. 1351/2014)
107. Vide impugned order learned trial Court has ordered to frame charge for offences under Section 420 read with Section 120-B, 217, 119 IPC and for offences under Sections 7, 13(1)(a) read with Section 13(2) and Section 15 of the Prevention of Corruption Act, 1988 against accused-petitioner-Gajendra Kumar Singhal, whereas for offences under Sections 420, 121-B, 213, 217 IPC and for offence under Sections 7(13)(1)(a) read with Section 13(2) and Section 15 of the Prevention of Corruption Act, 1988 against accused-petitioner-Laxmi Kant.
108. As per Para 145 of the order under challenge on the basis of evidence collected during investigation and more particularly on the basis of transcriptions of conversations allegedly taken place between petitioner-Shri Gajendra Kumar and co-accused-Shri Subhash Gupta and petitioner and co-accused-Shri Dinesh Singhal, it has been found by the learned Court below that petitioner in the capacity of Food Safety Officer was well aware of the fact that co-accused are engaged in the business of manufacturing and sale of "Fake Deshi Ghee" in the brand names of several reputed companies at a large scale and even then petitioner in that capacity promised co-accused to extend all his help to appoint few more retailers in the area under his jurisdiction so that the "Fake Deshi Ghee" so manufactured by co-accused can be sold in the market as genuine through them. It has further been found that petitioner by misusing his office agreed to accept or attempted to obtain gratification for himself from co-accused as a motive or reward for extending his help for the expansion of said business of co-accused. As per Para 146 mainly on the basis of conversations alleged taken place between petitioner-Shri Laxmikant and co-accused-Shri Dinesh Singhal it has been found by the learned trial Court that in the capacity of Food Safety Officer petitioner was well aware of the fact that co-accused is engaged in manufacturing and sale of "Fake Deshi Ghee" even then he extended his help about expansion of his business in area of his posting in lieu of gratification. It has also been found that petitioner in the capacity of a public servant instigated co-accused to bribe another public servant for forbearing the other public servant to take legal action against co-accused. It has further been found that petitioner shared official information with co-accused. It has been found that petitioner having duty as a public servant to prevent commission of an offence by co-accused intentionally did not take samples of "Fake Deshi Ghee" being sold in his area of posting and thereby facilitated commission of offence by co-accused.
109. It was submitted by the learned counsel for the petitioners that even prima facie evidence to attract punitive ingredients of the offences for which charge has been framed against the petitioners is not available on record and the learned trial Court's order is founded purely on surmises and conjectures. It was further submitted that for an offence to be made out under Section 7 of the P.C. Act, it is required to be shown element of demand of gratification on the part of the public servant, but in the present case even if the alleged conversations are taken to be true even then element of any demand of gratification by petitioners can not be inferred. Similarly, for an offence under Section 13(1)(a) of the P.C. Act, it is required to disclose habitual element of gratification by a public servant, but there is nothing on record even to infer prima facie such demand by petitioners. No material is also available on record to frame charge for offence under Section 15 of the P.C. Act.
110. On the other hand, it was submitted by the learned Additional Advocate General that conversations between petitioners and co-accused and other evidence available on record prima facie show that both the petitioners were well aware with the nefarious activities of co-accused-Shri Dinesh Singhal and Shri Subhash Gupta, but despite being public servant in the capacity of Food Safety Officers they entered into criminal conspiracy with co-accused and extended their full support for the expansion of said business of co-accused and sale of "Fake Deshi Ghee" so manufactured by them in their respective area of posting after obtaining gratification or by agreeing to accept or with attempt to obtain gratification from co-accused. It was also submitted that petitioners by their respective acts and omissions facilitated commission of such offences by co-accused which it was their duty as public servant to prevent.
111. On consideration of submissions made on behalf of the respective parties and in the light of the evidence collected during investigation and the well settled legal position, I do not find any illegality or perversity in the impugned order requiring interference by this Court. It is revealed that learned trial Court after due consideration of evidence and following the legal requirement has passed the order under challenge. It cannot be said that sufficient grounds are not available on record to proceed further against the petitioners. It can prima facie be inferred that petitioners were well aware about the business of co-accused, but even then they extended their help and support for the expansion of said business of co-accused in their respective area of posting.
112. Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.
Accused-Petitioner- Dinesh Singhal
(Criminal Revision Petition No. 1328/2014)
113. Vide impugned order learned trial Court has ordered to frame charge for offences under Sections 308, 328, 420 read with Section 120-B, 465, 485 IPC and for offences under Section 103 and 104 of the Trade Marks Act, 1999 and in the alternative for offence under Section 482, for offence under Section 63 of the Copyright Act and in the alternative for offence under Section 483 IPC and for offences under Sections 8,9,12 and 14 of the Prevention of Corruption Act, 1988 against the accused-petitioner.
114. On the basis of evidence collected during investigation and conversations allegedly taken place between petitioner and several co-accused and other persons several times from time to time, it has been found by the trial Court:--
"(1) Petitioner with criminal conspiracy with several co-accused and with their help in various ways was engaged in the business of manufacturing of "Fake Deshi Ghee" in the brand names of several reputed companies at a large scale and he was also supplying and selling it in market as genuine for the consumption of public at large through several dealers and retailers.
(2) Samples were taken of the Deshi Ghee so manufactured by the petitioner and the same were found to be sub-standard and misbranded. Samples were taken at the instance of the petitioner in presence of witnesses.
(3) Petitioner was engaged in the aforesaid business in the name of M/s. Bharat Food Product, M/s. Bhole Shanker Food Product and Hindustan Milk Food Product without getting agmark and other necessary certificates.
(4) "Diacetyl" is a synthetic substance which is artificially made by using chemicals and it cannot be mixed in food products like ghee and butter etc. as it is injurious to human body and health. It is a poisonous chemical which may cause bodily injury if one comes in contact with it by breathing, eating and even touching. It may also cause breathing problem and diseases relating to eyes, nose and throat which may ultimately cause death of a person if such person continuously comes in touch with such substance.
(5) The aforesaid artificially prepared chemical i.e. diacetyl was recovered from the factory of the petitioner and it was also found to be mixed in the samples of ghee taken from him.
(6) Although diacetyl is found naturally also in ghee and butter but it is not harmful to human body in any way.
(7) Use of artificially synthetic diacetyl by petitioner as essence in the "Fake Deshi Ghee" so manufactured by him amounts to offence under Section 308 and 328 IPC although no injury report of any kind or death certificate of any person has been produced in support of its claim by the prosecution as preparation of "Fake Deshi Ghee" and sale of it for the consumption of public at large is prima facie sufficient for the commission of such offences.
(8) Although, the business of M/s. Bharat Food Products stood in the name of one Shri Kamal Kumar and licence for it was also issued in his name, but in fact the business of manufacturing of "Fake Deshi Ghee" was being run by the petitioner under the aforesaid name.
(9) Although, three mobile phones found in the possession of petitioner stand in the name of some other persons, but it is petitioner who was using them regularly during the relevant time.
(10) Petitioner used false property marks with intention to defraud public at large, counterfeited property marks of several reputed companies and he had in his possession of die and other material for the purpose of counter-feiting property marks of such companies with intention to defraud public and such companies.
(11) Petitioner falsified trademarks of several companies, falsely applied trademarks of such companies, on packets of Deshi Ghee so manufactured by him, had in his possession material for the purpose of falsifying such trademarks and applied false trademark description to packets of Deshi Ghee so manufactured by him.
(12) Petitioner after applying false trademarks and false trade descriptions of various reputed companies sold, exposed for sell, had in his possession for sale "Fake Deshi Ghee".
(13) Fake Deshi Ghee so manufactured by the petitioner was sold as genuine and pure in the market for the consumption of public at large from time to time through several retailers and dealers and thereby he intentionally deceived not only persons who purchased such Ghee as genuine for their use and consumption, but also the companies in whose brand names it was sold.
(14) Petitioner was having very close and intimate relation with several officers of various departments including police and Medical & Health and some of them shared confidential official informations with him from time to time and petitioner by paying them gratification in lieu of favours shown by them to him and he thereby induced them by corrupt and illegal means to do and to forebear to do their official act.
(15) Petitioner sold "Fake Deshi Ghee" in the name of M/s. Bharat Food Product after preparing false and forged bills without providing in them required information."
115. In support of the petition, learned counsel for the petitioner submitted as below.
"(1) Premises from where samples of alleged "Fake Deshi Ghee" were taken do not belong to petitioner in any manner and, therefore, he cannot be held liable even if someone was found engaged in manufacturing of such ghee at that place. Petitioner has been falsely implicated. Recovery and seizure in his presence is not sufficient to connect him in the manufacturing and sale of the alleged "Fake Deshi Ghee".
(2) As per FSL report none of the sample so taken has been opined to be unsafe, misbranded, sub-standard, dangerous or injurious to human health by the reason that it contained diacetyl. Otherwise also, relevant legal provision permits to mix diacetyl to ghee etc. to the extent of 0.4%. There is no such report that samples so taken contained diacetyl beyond the permissible limited. No evidence is available on record showing even prima facie mixing of diacetyl by petitioner or by any other person at the instance of the petitioner.
(3) No victim, no injury report of any kind and in absence thereof, offences under Sections 308 and 328 IPC can not be said to be made out even prima facie. Not a single witness has said that he personally consumed ghee so manufactured and sold by petitioner and suffered any injury as a result thereof.
(4) All the four brand names in which the petitioner has allegedly manufactured the said ghee are registered by the competent authority in the name of the business entity which was found to be engaged in the manufacturing and sale of such food items and, therefore, offences under the provisions of the Trade Marks Act and Sections 482, 483 and Section 485 IPC are not made out even prima facie. Deshi Ghee has been sold in the same Trade Mark for which it was registered. A registered trade mark holder is entitled to prepare packaging material and wrapper etc. also.
(5) Provisions of Copyright Act are not at all applicable in the facts and circumstances of the case.
(6) Offence under Section 465 IPC is also not disclosed even prima facie as no forged and false document was ever prepared by the petitioner. Mere providing some wrong information or concealment of some material information in bills does not amount to such an offence.
(7) Offences under the provisions of Prevention of Corruptions Act are also not disclosed against the petitioner. No offence under this Act can be attributed against a private person. No evidence of payment of gratification on the part of the petitioner to any public servant is available on record. No recovery of any kind has been effected from any person including the public servants made accused in the present case. No case of disproportionate assets has also been found against any of the public servant.
(8) At the most it can be inferred that vegetable oil was manufactured by petitioner as per the licence granted to him by the competent authority. Allegation of manufacturing and sale of Deshi Ghee is entirely baseless."
116. On the other hand, it was submitted by the learned Additional Advocate General that more than sufficient evidence has been made available on record prima facie showing involvement of the petitioner in each and every offence for which charge has been ordered to be framed against him. Learned trial Court after due consideration of the evidence has arrived to certain findings which cannot be questioned at this stage of the proceedings as only prima facie has to be seen whether sufficient grounds are available to proceed further against the petitioner.
117. On consideration of submissions made on behalf of the respective parties and the material made available on record as well as the well settled legal position and more particularly in view of the prima facie findings arrived at by the learned trial Court after due consideration of the evidence collected during investigation, no fault can be found in the impugned order to the extent of charge for offences under Sections 308, 328, 420, 420 read with Section 120-B, 483, 485 IPC, for offences under Sections 103 and 104 of the Trade Marks Act, 199 or in the alternative for offence under Section 482 IPC and for offences punishable under the provisions of the Prevention of Corruption Act, 1988, but so far as offence under Section 63 of the Copyright Act, 1957 and offence under Section 465 IPC is concerned, even if allegation made and evidence produced is accepted as correct, even then these offences are not disclosed to be made out even prima facie against the petitioner.
118. Consequently, the criminal revision petition is partly allowed and the impugned order to the extent of charge for offence under Section 63 of the Copyright Act and for offence under Section 465 IPC is set aside and the petitioner is ordered to be discharged for these offences, but for the rest of the order the petition is hereby dismissed. The stay application also stands dismissed.
119. Consequently, all the revision petitions are decided in the aforesaid manner.
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