B.J. Rele, J.
1. This is an application for quashing the proceedings in Criminal Case No. 15913 of 1974 pending in the Court of the Judicial Magistrate First Class, Court No. 8, Pune.
2. The brief facts of the case are that on 16-8-1974 at about 4.30 p.m. the complainant S.B. Jadhav, Food Inspector, accompanied by other Officers of the Food and Drug Administration and a Police Constable of Pimpri Police Station went to the factory premises of M/s. Harnik Food Industries at premises No. 4-22, 'H' Block, M.I.D.C., Pimpri, Pune. The petitioner who was at the relevant time Production Manager and one Ramesh Murlidhar Kriplani, a Typist-Clerk, since absconding were present in the factory premises. The complainant selected samples of food of (1) Whistle Pops, (2) Sugar and (3) Arrowroot, used for the manufacture of food articles, for the purpose of test and analysis under Rule 9 of the Prevention of Food Adulteration Rules, 1955. The complaint states---
'The usual sampling procedure prescribed under the said Rules was being followed and the samples were being sealed with the help of sampling Assistant Shri L.T. Sorkade. Shri Suresh N. Hingorani, Production Manager, instructed Shri Ramesh Murlidhar Kriplani, Typist-Clerk to take away the samples and informed the complainant that he will not allow the complainant to draw any samples of food articles for test and analysis and asked the complainant and other officers to get out of the factory. Then Shri Ramesh Murlidhar Kriplani, Typist-Clerk, immediately snatched all the samples of food articles. Thereafter the complainant made a Panchanama describing the above incident of preventing complainant from drawing samples of food articles and obstructing him from drawing samples of food articles and thereby prevented the complainant from performing his official duties under the Prevention of Food Adulteration Act, 1954, and Rules made thereunder.'
3. It is on these facts that the complainant filed a complaint on 6-9-1974 under section 16(1)(b) and 16(1)(c) of the Prevention of Food, Adulteration Act, 1954, in the Court of the Judicial Magistrate, First Class, Court No. 8, Pune. On this complaint process was ordered to be issued by the learned Judicial Magistrate, First Class, after about five years, i.e. on 6-5-1979, only as against the present petitioner. By a previous order dated 18-3 1978, the trial as against the present petitioner was separated as the said Kriplani was said to have left the country.
4. Shri Rege, learned Advocate appearing on behalf of the petitioner has contended firstly that the offence of actually taking away the samples is, on the face of the complaint, committed by the absconding accused Kriplani. Except for some words uttered by the present petitioner, there is no allegation in the complaint that the petitioner did any act whereby he, actually prevented the Food Inspector from drawing samples. Shri Rege has submitted that there is no charge either similar to the one under section 34 of the Indian Penal Code or under section 114 of the Indian Penal Code. There is nothing done by the present petitioner so as to involve him in an offence under section 16(1)(c) of the Prevention of Food Adulteration Act, 1954. The main offender in this case, according to Shri Rege, is the absconding accused Kriplani. At the highest, the present petitioner could be charged for having abetted the offence but not for having committed the main offence and since the main offender not having been charged along with this petitioner, the cases having been separated, the proceedings against the present petitioner deserve to be quashed. Shri Rege has submitted that the summons issued as against the present petitioner is as if he is the main offender when it is not so and hence the proceedings should be quashed. He has secondly contended that the very fact that there was a considerable delay of nearly five years for issuing process against the accused is by itself sufficient to quash the process. He has thirdly submitted that the offence under section 16(1)(c) is for preventing the Food Inspector from taking sample as authorised by the Act. According to Shri Rege, the complaint itself shows that the sample was taken and sealed. So also the Panchanama which was made on the same day, recites---
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Referring to these contents of the Panchanama Shri Rege has submitted that the taking of the samples was complete on the sealing of the packet and therefore, it cannot be said that the accused has committed any offence under section 16(1)(c) of the said Act.
5. Shri Barday, learned Public Prosecutor, on the other hand, has submitted that taking of the samples was not complete but was in the process of being taken and he has referred to Rules 14 and 16 of the Prevention of Food Adulteration Rules, 1955, and he has submitted that until the entire process as required by Rules 14 and 16 is complete, the taking of the samples cannot be said to be completed.
6. There is considerable force in the arguments advanced by Shri Rege. The statements contained in the Panchanama show that except for uttering words that he would not permit the Food Inspector to draw samples he did not act by which he actually prevented the Food Inspector from drawing samples. At the highest, this would be a case where the petitioner abetted the commission of offence of preventing the Food Inspector from taking samples. The main offender being absconding, the abettor cannot be convicted of the main offence, and the ases separated but he could be convicted along with the main offender for abetting the offence. Furthermore, the charge against the petitioner is as if he was the main offender under section 16(1)(b) and (c) of the Prevention of Food Adulteration Act i.e. preventing the Food Inspector from taking sample as authority by the Act or preventing the Food Inspector from exercising any other power conferred on him by or Under the Act. Since nothing is shown except the abetting of the offence by use of words, the proceedings deserve to be quashed. In this view of the matter, it is not necessary for me consider the other contentions raised by Shri Rege.
7. In the result, rule absolute. The proceedings in Criminal Case No. 15913 of 1974 pending in the Court of the judicial Magistrate, First Class, Court No. 8, Pune, are quashed.