Pradeep Kumar Aggarwal & Ors. v. State thru Food Inspector (PFA) Govt of NCT of Delhi

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Learned senior counsel for petitioner relies upon decisions in Ram
Babu Rastogi Vs. State through Food inspector (PFA), Government of
NCT ofDelhi 190 (2012) DLT 348; Godawat Pan Masala Products J.P.
Ltd. and anr. Vs. [/man ofindia & ors. (2004) 7 SCC 68 and Joshy K. V
& ors. vs. State of Kerala & ors. 2013 (I) FAC 78 to submit that recovered gutka (shikhar) is not a food item and thus, not covered under the provisions of The Prevention of Food Adulteration Act & Rules and so, the complaints in question and summoning orders deserve to be quashed.
Mr. Vinod Diwkar, learned Additional Public Prosecutor for respondent-State draws the attention of this Court to the summoning order and submits that the above issue is required to be dealt with at trial.
It is submitted by learned Additional Public Prosecutor for respondent-
State that Notice under Section 251 of the Cr.P.C. has not yet been filed
Crl.M.C.No.1 04/2012 Crl.M.C.No.106/2012 Crl.M.C.No.135j2012
Crl.M.C.No.l36/20 12 Page 3 2015:DHC:11144 in the complaints in question and that the petitioners have an alternate and efficacious remedy to urge the pleas taken herein before the trial court at the stage of hearing at the time of framing ofNotice under Section 251 of the Cr.P.C.
Since petitioners have an alternate . and efficacious remedy available to them to urge the pleas taken herein before trial court at the time of framing of Notice under Section 251 of Cr.P.C., therefore, this
Court finds that inherent powers of this Court under Section 482 of the
Cr.P.C. are not required to be invoked to quash the proceedings arising out of the complaints in question. It is being so said in view of dictum of the Apex Court in Shushan Kumar & Anr. Vs. State (NCT of Delhi) &
Anr. AIR 2012 SC 1747, which persuades this Court not to exercise inherent jurisdiction under Section 482 Cr.P.C. to entertain this petition.
The pertinent observations of Apex Court in Shushan Kumar (Supra), are as under:-
"17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty ofthe trial CourT to careful(y go through the allegations made in the charge- sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance of the accusation to the accusation to the accused and ask him whether he pleads guilty other-vvise, he is bound to discharge the accused as per
Section 239 ofthe Code." Crl.M.C.No.104/2012 . Crl.M.C.No.l06/2012
Crl.M.C.No.135/2012 Crl.M.C.No.l36/2012 Page 4
2015:DHC:11144 Further, on this aspect, the dictum of the Apex Court in Krishan
Kumar Variar v. Share Shoppe (2010) 12 SCC is as under:-
"4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessmy, decide the question ofjurisdiction before proceeding further with the case.