rakeshfatehpur (Advocate) 20 September 2010

remand - after 24 Hours

My client was arrested for selling the kesari dal at district FATEHPUR UP . The alleged Food Inspector take sample and arrest & hand over to the police. A first information report u/s 272/273 IPC & 7/16 PFAAct was launched by Food Inspector. At the time of registering the first information report , no analysis report was available.

It is noted that PFAAct is repealed with Food Safety & Standard Act 2006 w.e.f . 29/06/2010.

The case law of M/s Pepsico India Holdings (Pvt) Limited and others Vs State of U.P. and othersWrit Petition No. 8254 (MB) of 2010 decided on 08/09/2010 was submitted before remand Magistrate. But remand was given to (1) prospective accused (2) to an act which is omitted (3) in which the police cannot investigate.

Now my question is what are remedies to accused ?

My my client file an revision against the remand ?

Rakesh Advocate Fatehpur

9235731844

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3 Replies

jikku George Jacob (In house Counsel) 20 September 2010

your case is very peculiar in nature. The provisions of IPC cannot be made applicable in your case. The PFA Act is still in force . The PFA Act mandates that the prosecution can be launched only with the consent and not other wise. Hence the entire case is liable to be quashed. You can also see the Judgment of the Bombay High Court (Aurangabad Bench ) in Crl Writ Petition 76/2010 which is applicable to your case. For defence the below citation will also be of help

Food not for human Consumption the possession and exposure of ' Kesari dal' prohibited by notification dated 10th March, 1966 under P.F.A. Rules 55- Food Inspector took sample of 'Kesari dal- Kesaridal proved not to be for sale and consumption - accused dealer in cattle feed - the entire purpose of the law being
to safeguard and protect human beings against adulterated or prohibited items of food, mere possession of Kasari Dal which on the finding of fact recorded by the learned Trial Court was for 'cattle fodder' could not constitute on offence under Section Sec.7,7(iv) punishable under Section 16 of the Act-since Kesari dal
could be cultivated for the purpose of cattle fodder, and if it was cultivated, obviously some persons including a dealer incattle feed, would store it and since it is not disputed that Kesari dal was used as cattle feed it is reasonable to expect that person dealing in cattle feed would store it and so if such a person was
found in possession of Kesari dal, it should not be said that he has committed on act which has been prohibited by law meant for items of food for human consumption-unless the prosecution had established that Kesari dal found in possession of the respondent was meant for sale for human consumption, it could
not be said that the respondent had committed the offence he was charged with. (State of Assam vs. Rakesh Chandra Paul) Gauhati High Court-FAC 1991 (1)29.