TMI Blog2012 (3) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... missions, it would be pertinent here to give the brief facts of both the cases. 3. In Crl. M.C. No. 2695/2004, a complaint was filed by the Department of Prevention of Food Adulteration against Madan Lal of M/s Popular Store, vendor-cum-proprietor, M/s.P.K.Agency supplier and National Diary Development Board, manufacturer. The allegations made in the complaint were that on 24.08.1999 at about 6.00 PM, Food Inspector Mr.Pawan Bhatnagar had purchased a sample of double filtered mustard oil from Madan Lal, M/s.Popular Store, Shop No.34, Sector-6, R.K.Puram, New Delhi where the said article of food was found stored for sale. The sample consisting of approximately 1 liter (910 gram) of double filtered mustard oil (ready for sale of human consumption) was taken from original sealed tetra pack bearing label decoration. Three samples were prepared and one of the samples was got analyzed from the public analyst. The sample was reported to be not conforming to the standards laid down under item No.A.17.06 of Appendix B‟ of PFA Rules, 1955 because the sample showed presence of Argemone oil which is injurious to health. It was observed that it was likely to cause death on consumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Let all the accused be accordingly summoned for 16.11.1999 and this case be tagged with the main case file of 111/1998. 4. The accused petitioner had put in appearance and filed an application for dropping the proceedings and recalling the order of issuance of summons on the ground that no case is made out against him. The learned Magistrate dismissed the application on 26.09.2003 holding that in view of Section 16 (A) of the Act, the offence is triable by a Judicial Magistrate or a Metropolitan Magistrate and not by Sessions Judge. The application of the petitioner was accordingly rejected. 5. The petitioner feeling aggrieved by the order of the learned Magistrate preferred a revision petition before the Sessions Court which was dismissed on 04.09.2004 by Sh.S.N.Dhingra, (as his Lordship then was). It was held that the second complaint which was filed by the Department of Prevention of Food Adulteration was in the nature of supplementary complaint to the first one and this was permissible as is done in the police case under Section 173(8) Cr.P.C. It was also observed by the learned Sessions Judge that the offence of sale, distribution, manufacturing etc. of adulterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint itself. 8. I have heard Mr.Dinesh Mathur, the leaned senior counsel for the petitioner as well as Ms.Jasbir Kaur, the learned APP and have gone through the record. 9. Mr.Mathur, the learned senior counsel for the petitioner has raised three contentions. The first contention which has been raised by the learned senior counsel is that the cognizance of an offence can be taken only once. In the instant case, the complaint under Section 7 read with Section 16(1) (1A) of the Act was filed, of which cognizance was taken by the learned Magistrate and notice was issued to the three respondents, namely, Madan Lal of M/s.Popular Store, vendor-cum-proprietor or M/s.P.K.Agency supplier and National Diary Development Board, manufacturer. It was further contended that it was not open to the learned Magistrate to entertain the second complaint in respect of the same incident and issue notices to the accused persons afresh. 10. The second contention was that the offence under the Act is triable by Magistrate and it could not be tried by the Sessions Court, therefore, the second complaint which was filed for transfer to the Sessions Court, of which the cognizance was taken by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner in the instant case had rightly agitated before the learned Magistrate that the second complaint could not have been filed, and therefore, they ought to have been discharged in respect of the second complaint, but this request was rejected by the learned Magistrate on 26.9.2003. Curiously enough, the revision was also dismissed by the learned Sessions Judge by giving an erroneous interpretation to the provisions of law. The learned Additional Sessions Judge relied upon Section 173(8) Cr.P.C., which permits the filing of a supplementary charge-sheet in a police case. There is a distinct procedure prescribed under the Code of Criminal Procedure for a police case and a complaint case. The Magistrate or much less a court of Sessions cannot follow two different procedures and try an accused person by amalgamating two different procedures. So far as Section 173 (8) of Cr.P.C. is concerned, it appears under the Chapter XII of the Cr.P.C. under the heading investigation‟, it comes into operation in a situation when an offence which is cognizable is registered by the police and an FIR is registered that the law envisages filing of a charge sheet and a supplementary charge sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d even if the sample is tested today, obviously, it will not result favourably for the petitioner because of chemical changes which would have taken place in the oil over the period of time. Therefore, in such a contingency, the petitioners right to have the second sample examined from the Central Food Laboratory has been defeated and a prejudice has been caused to him of the benefit of sending the second sample to the Central Food Laboratory. In the second case, the second sample was analyzed by CFL and the report received from them superseded the report of the public analyst. Once the report of the public analyst is superseded, the second complaint in which the sanction was accorded on the basis of the public analyst report, becomes non-est because the second sanction which had been granted by the Court on the basis of report which was superseded and which cannot be taken cognizance of. On this ground also, I feel that the second complaint against the petitioner is not maintainable as the cognizance of the offence is already taken once. Moreover, the second complaint is filed on the basis of a sanction obtained on the basis of a public analyst report because by the time the sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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