HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Misc(Pet.) No. 1240 / 2014
Madan Lal Paliwal S/o Shri Deepchand Paliwal, aged about 45 years, R/o Upar Ki Odan, Tehsil Nathdwara, District Rajsamand (Rajasthan).—-Petitioner
1. State of Rajasthan through Public Prosecutor.
2. Ratan Singh Devra, Food Inspector, Office of Chief Medical & Health Officer, Pali (Raj.)
—-Respondents For Petitioner(s) : Mr. Farzand Ali For Respondent(s) :
Mr. M.S. Panwar, PP
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 08/11/2017
1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the order dated 21.03.2014 passed by learned Additional Chief Judicial Magistrate, Sumerpur District Pali in Criminal Regular Case No.782/2013 and for quashing of the entire criminal proceeding qua the petitioner for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954.
2. The list of dates pertaining to this case, are as under:
S.No Date Particulars 1. 10.02.2009 Sample was taken 2. 17.03.2009 Public Analyst Report 3. 16.09.2010 Complaint was filed (after 17 months reply) 4. 10.2008 Manufacturing date of the Article 5. 10.2009 Expiry date of the Article (2 of 7) [CRLMP-1240/2014]
3. Learned counsel for the petitioner states that the present case is squarely covered by the decision rendered by this Court in S.B. Criminal Misc. Petition No.1376/2017; Pradeep Singhvi Vs. State of Rajasthan, decided on 12.07.2017.
4. This Court on 12.07.2017 has passed the following order in Pradeep Singhvi (supra):-
“1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the order dated 22.02.2017 passed by learned Sessions Judge, Jodhpur in criminal revision No.52/2016 by which he while dismissing the revision petition filed by the petitioner has upheld the order dated 02.07.2016 passed by learned Chief Judicial Magistrate, Jodhpur in criminal case No.56/2014(646/2011) by which he framed charges against the petitioner for the offence under Section 7, (I)/16 of the Prevention of Food Adulteration Act, and to quash and set aside the same.
2. The brief facts as noticed by this Court are that the sample was drawn by the respondent on 23.03.2011 and was sent for analysis on 24.03.2011. The report of the analysis was received on 17.05.2011 and upon such report, a complaint was filed on 21.07.2011. The report from the said laboratory disclosed that the standards laid down in the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as Act of 1954) and Rules were made and thus, pre-charge evidence of the Food Inspector were recorded and the charges were framed against the petitioner on 19.09.2015. The petitioner challenged the framing of charges by filing a revision petition whereby the matter was remanded back for fresh consideration. The charges were against framed on 02.07.2017 on fresh consideration and revision was filed against the same but the order was upheld vide order dated 22.02.2017.
3. Learned counsel for the petitioner has submitted that the rights granted to the petitioner under Section 13(2) of the Act of 1954 have been infringed and therefore, since his valuable rights have been infringed, the trial cannot go on. The issues raised by the petitioner has been dealt by both the courts below but they have not concluded impact of liberty to the petitioner in view of Section 13(2) of the Act of 1954.
4. Learned counsel for the petitioner has relied upon the judgment passed by a coordinate Bench of this Court in Vikram Arora & Ors. Vs. State & Anr. in S.B. Criminal Misc. Petition (3 of 7) [CRLMP-1240/2014] No.1988/2016 decided on 05.09.2016. The relevant portion of the judgment reads as follows:
“In the instant case, admittedly, the sample of sauce bottles was taken on 19.04.2010. The said sauce was manufactured in March 2010 and the shelf-life of the same was 12 months from manufacturing and it was best before 12 months from the date of manufacturing, meaning thereby the life of the sauce was upto February 2011. Petitioners filed application under Section 13(2) of the Act 08.11.2010 which was allowed on 18.03.2011, however, the sample was sent by the Court on 22.06.2011, i.e., much after the expiry date of life of the sauce and the Laboratory found the same not in a condition fit for analysis for the reason that it was received in broken condition and its contents were lost during transit. Therefore, this sort of situation has obviously deprived the petitioners of their right to get the sample analyzed by Central Food Laboratory under sub-sec.(2) of Section 13 of the Act. The obvious effect is that it has prejudiced the cause of the petitioners having direct ramification on the legality and propriety of the complaint and further proceedings undertaken by the learned trial Court pursuant thereto.
Supreme Court, in Municipal Corporation of Delhi Vs. Ghisa Ram (AIR 1967 SC 970), while examining scope of sub-sec.(2) and (5) of Section 13 of the Act, concluded in clear and unequivocal term that right of accused to get sample examined by the Director of Central Food Laboratory is a valuable right and if this right is infringed, his conviction cannot be sustained. The Court held:
“It appears to us that when a valuable right is conferred by S. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because thecertificate of the Director supersedes the report of the Public Analyst and is treated as conclusive -evidence of its contents.
Obviously, the right has been given to (4 of 7) [CRLMP-1240/2014] the vendor in order that, for his, satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.”
The same principle is also reiterated in a latter judgment in case of Girishbhai Dahyabhai Shah Vs. C.C. Jani Anr. [(2009) 15 SCC 64] wherein the Court held:
“In other words, in the instant case, the appellant was prevented from applying for analysis of the second sample before 17-7- 1989, by which time the second sample of curd had deteriorated and was not capable of being analysed as was found in the case of Ghisa Ram (supra) referred to above.
In that view of the matter, we are unable to sustain the judgment of the High Court impugned in this appeal and we also see no reason to continue with the proceedings which have lasted for 28 years in the absence of any valid and reliable report with regard to the second sample.
Accordingly, the appeal is allowed. The order passed by the High Court is set aside and the proceeding, being Criminal Complaint No. 58 of 1989, pending before the Metropolitan Magistrate, Ahmedabad, is quashed.”
A Coordinate Bench of this Court at Jaipur, (5 of 7) [CRLMP-1240/2014] in Nemi Chand Agrawal Vs. State of Rajasthan [2012(2) Cr.L.R. (Raj.) 830], noticing violation of Section 13(2) of the Act has also quashed the complaint under Section 7/16 of the Act. The Court held:
“A bare perusal of above goes to show that after receipt of the report of Public Analyst under Section 13(1), the prosecution could be launched and copy of the report should be supplied to the accused. Sub Section (2) provided that on receipt of the report, the accused could make an application to the Court to get the sample of articles to be analysed by the Central Food Laboratory. In the present case, samples have already been expired in July, 2010, whereas the complaint has been filed in November, 201 and the right which was provided by Section 13(2) of the P.F.A. Act has been taken away by the present petitioner. Hence looking at the above legal position, continuance of proceedings would be an abuse of process and hence liable to be quashed.
In view of foregoing discussion and the law laid down in Ghisa Ram (supra), the instant criminal misc. petition is allowed and entire proceedings against the petitioners in Criminal Case No.121/2011, pending before the learned Chief Judicial Magistrate, Hanumangarh, are hereby quashed and set aside.”
5. Thus, in light of the fact that the sample was drawn on 23.03.2011 and the complaint was filed on 21.07.2011, the petitioner has been admittedly deprived of his right envisaged clearly under Section 13(2) as the samples taken from the petitioner could have been analyzed by Central Food Laboratory, as per the application made by the petitioner.
6. Section 13(2) of the Act of 1954 read as follows:
“13. Report of public analyst.-
(2) On receipt of the report of the result of the (6 of 7) [CRLMP-1240/2014] analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such persons or persons that if it is so desired, either or both of them may make an application to the court within a period of then days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.”
7. Thus, it is clear from the precedent law as well as Section 13(2) of the Act of 1954 that on application of the petitioner, the concerned court within a period of 10 days from the receipt of the copy of the report was to get the sample of the article of food kept by the Local Food Authority analyzed by Central Food Laboratory. It is not disputed by learned Public Prosecutor that self life of the product was only five days and sample drawn culminated into a complaint dated 21.07.2011 and therefore, by no means, any fruitful purpose would be served to the petitioner by sending the sample to Central Food Laboratory in accordance with Section 13(2) of the Act of 1954 as the sample was drawn on 23.03.2011
8. In light of the precedent law as well as the discussion made thereafter, the instant misc. petition is allowed and the entire proceedings against the petitioner pursuant to order dated 22.02.2017 passed by learned Sessions Judge, Jodhpur and the order dated 02.07.2016 passed by learned Chief Judicial Magistrate, Jodhpur framing charges against the petitioner for the offence under Section 7,(i)/16 of the Prevention of Food Adulteration Act, 1954 are hereby quashed and set aside.”
5. The present criminal misc. petition is accordingly allowed, in terms of the aforementioned judgment passed by this Court in S.B. Criminal Misc. Petition No.1376/2017 Pradeep Singhvi and the orders dated 21.03.2014 passed by (7 of 7) [CRLMP-1240/2014] learned Additional Chief Judicial Magistrate, Sumerpur and the entire proceedings of Regular Criminal Case No.782/2013 qua the petitioner pending in the Court of Additional Chief Judicial Magistrate, Sumerpur.
(DR. PUSHPENDRA SINGH BHATI)