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1984 DIGILAW 134 (MAD)

Todikonda Subba Rao v. State of Andhra Pradesh

1984-04-03

CHENNAKESAV REDDY

body1984
ORDER This criminal revision petition raises a question of general interest and importance. The question is what is the real meaning and content of the expression ‘institution of prosecution’ employed in section 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act.) 2. The facts and circumstances giving rise to the question are neither disputed nor complicated. A complaint was laid against the petitioner before the 3rd Additional Munsif Magistrate. Chirala, on 21st January, 1983, for offences under sections 16 (1) and 7 read with section 2 (i-a), (m) of the Act by the Food Inspector, Chirala Municipality, who has been duly authorised to institute prosecution for offences under the Act. On the same day a notice was served on the petitioner as envisaged under section 13 (2) of the Act informing him that if he intended to send the sample kept by the local authority analysed by the Central Food Laboratory, he may make an application to the Court within a period of 10 days from the date of receipt of the copy of the report of the result of the analysis made by the public Analyst. A copy of the report of the public Analyst on the sample of the groundnut oil seized from the petitioner's shop was also enclosed with the notice. The complaint filed before the 3rd Additional Munsif Magistrate, Chirala, was returned with an endorsement that the complaint should be filed in the Court of the 11 Additional Munsif Magistrate, Chirala. On the same day the complainant presented the complaint before the Court of the 2ad Additional Munsif Magistrate, Chirala The 2nd Additional Munsif Magistrate took the case on file as C, C. No. 5 of 1983, under sections 16 (1) and 7 read with section 2 (ia) (m) of the Act on 2nd February, 1983 and ordered issue of summons to the petitioner-accused. The case was posted to 17th February, 1983. The petitioner appeared in the Court on 17th February, 198 3 and filed an application under section 13 (2) of the Act requesting the Court to send tie sample kept with the local health authority to the Director of Central Food Laboratory for analysis. The case was posted to 17th February, 1983. The petitioner appeared in the Court on 17th February, 198 3 and filed an application under section 13 (2) of the Act requesting the Court to send tie sample kept with the local health authority to the Director of Central Food Laboratory for analysis. The learned 2nd Additional Munsif Magistrate dismissed the application holding that the notice was served on the petitioner-accused as required under section 13 (2) on 21st January, 1983, along with the report of the Public Analyat and lis acknowledgment was obtained on the notice given to the petitioner, that the petitioner failed to file an application within 13 days from the date of receipt of the notice along with the report of the Public Analyst and that the application filed on 17th February, 1983, was for beyond the time prescribed under section 13 (2) of the Act and was therefore not maintainable. Aggrieved against the said order the petitioner-accused has filed this revision petition. 3. The learned Counsel for the petitioner firstly submits that he institution of the prosecution of the case commences only from the date the Court takes cognizance of the case that cognigance of the case was only taken in this case by the Magistrate on 2nd February, 1983, and the accused was directed to appear in the Court on 17th February, 1983 and that the application filed on 17th February, 1983 was not barred by time fixed under section 13 (2) of the Act. In support of his submission he relied upon an unreported decision of this Court in Crl.R.C. No. 607 of 1983 dated 1st March, 19154. In that case the learned Judge relying upon the decision in Rasulbaksh v. Emperor Rasulbaksh v. Emperor A.I.R. 1944 Sind 103, held that ‘the mere presentation of a complaint by a private individual, cannot be said to constitute the institution of criminal proceedings’. It may, however, be pointed out that the Sind Chief Court in that case was concerned with the question when does proceedings within the meaning of section 29 of the Arms Act in a Criminal Court said to have been instituted? It may, however, be pointed out that the Sind Chief Court in that case was concerned with the question when does proceedings within the meaning of section 29 of the Arms Act in a Criminal Court said to have been instituted? section 29 of the Arms Act clearly provides that no proceedings for an offence under section 19 (f) of the Arms Act shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the District or, in a presidency town, of the Commissioner of Police. In that case no sanction under section 29 of the Arms Act had been obtained before the Challan was filed by the police. Therefore the Court on the fact and circumstances of the case held that the prosecution was not maintainable. section 13 (2) of the Prevention of Food Adulteration Act reads as under: “(2) On receipt of the report of the result of the 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 person 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 14-A, 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 person or persons that if it so desired, either or both of them may make an application to the Court within a period often 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.” 4. It is clear from section 13 (2) of the Act that the receipt of the report of the public analyst that the article of food is adulterated is a condition precedent to the institution of prosecution against the person from whom the sample of the article of food was taken. Sub- section (2) then confers a valuable right on the vendor to have the sample given by him for analysis, analysed by the Director of the Central Food Laboratory. Sub- section (2) then confers a valuable right on the vendor to have the sample given by him for analysis, analysed by the Director of the Central Food Laboratory. Sub- section (3) provides that the report of the Director of the Central Food Laboratory shall supersede the report given by the public analyst. Therefore the right given to the vendor being a valuable one, the Legislature thought it fit that the said’ right should be exercised without any delay. The vendor is therefore given a discretion to request the Court, if he so desired, within a period of 10 days from the date of receipt of the copy of the report by him to get the sample of the article of food analysed by a better expert whose certificate the Court is bound to accept as the conclusive evidence of the fact of adulteration of the food. It is now a settled rule of law that any delay in launching the prosecution would deprive the accused of his valuable right to challange the correctness of the opinion of the public analyst in the manner prescribed under section 13 (2) of the Act and when such a valuable right is denied to the accused for no fault of his but only due to inordinate laches, no weight could be attached to the report of the public analyst. It is clear from the complaint in this case that the prosecution was instituted by a person competent to do so under section 20 of the Act. The complaint was first filed in the Court of the 3rd Additional Munsif Magistrate, Chirala, on 21st January, 1983. On the same day it was returned and represented in the Court of the 2nd Additional Munsif Magistrate, Chirala. The notice as required under section 13 (2) of the Act was also served on the petitioner-accused along with a copy of the report of the public analyst on the same day. The notice has to be served after the institution of the prosecution. That immediately raises the question whether the filling of a complaint in a criminal Court amounts to institution of prosecution under the Act. The notice has to be served after the institution of the prosecution. That immediately raises the question whether the filling of a complaint in a criminal Court amounts to institution of prosecution under the Act. Section 20 of the Act clearly states that no prosecution for an offence under the Act shall be instituted except by or with the written consent of a person authorised in that behalf by general or special order by the Central Government or by the State Government. In this case the prosecution was instituted by a person competent to do so. section 13 (2) of the Act does not speak of the Court taking cognizance of the offence as mentioned in sections 195 , 196 , 197 , 198 or 199, Criminal Procedure Code. If it is the intention of the Legislature, section 13 (2) of the Act, clearly speaks only institution of prosecution and not taking cognizance of the offence. Therefore the institution of the prosecution under section 13 (2) of the Act in the circumstances must mean institution of a complaint in a criminal Court by a person competent to do so under section 20 (1) of the Act. Therefore the moment a complaint is filed by a person competent to do so under section 20 of the Act there is institution of the prosecution within the meaning of section 13 (2) of the Act. The Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram Municipal Corporation of Delhi v. Ghisa Ram (1967) 2 S.C.J. 423: (1967) MLJ. (Crl.) 746: (1967) 2 S.C.R. 116 : (1967) Crl.L.J. 939: A.I.R. 1967 S.C. 970 observed: “The report of the public analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution should have been launched well in time to enable the respondent to exercise his right under section 13 (2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962 and no explanation is forthcoming why the complaint in Court filed about seven months after the report of the public analyst had been issued by him.” 5. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962 and no explanation is forthcoming why the complaint in Court filed about seven months after the report of the public analyst had been issued by him.” 5. Thus the Supreme Court clearly observed that the prosecution is said to have been launched on the date the complaint is filed in the Court within the meaning of section 13 (2) of the Act. This decision of the Supreme Court was not brought to the notice of the learned single Judge Muktadar, J. who decided the Crl. R. C. No. 697 of 1983. I do not therefore consider it necessary to refer this case to a Division Bench. 6. The learned Counsel for the petitioner-accused then submits that the notice served on the petitioner on 21st January, 1983 was invalid inasmuch as the complaint under the Act could only be filed before a Judicial Magistrate of First Class as laid down by sub- section (2) of section 20 of the Act. Sub- section (2) states that no court inferior to that of a Judicial Magistrate of First Class shall try any offence under this; Act. By virtue of this provision no court inferior to that of a Judicial Magistrate of First Class or a Metropolitan Magistrate is competent to try an offence under the Act. After quoting the provisions of the notice which was in Telugu, His Lordship proceeded. 7. Thus the notice clearly directs the petitioner to move the 2nd Class Magistrate, if he so desired to send the sample for analysis by the Central Food LaboratoryCalcutta. The complaint was actually filed in the Court of the 2nd Additional Munsif Magistrate, Chirala. Thus the notice is undoubtedly defective and invalid.. However the petitioner-accused received summons from the Court of the 2nd Additional Munsif Magistrate directing him to appear before the Court on 17th February, 1983. On that day the petitioner-accused appeared before the Court of the 2nd Additional Munsif Magistrate and filed an application under section 13 (2) of the Act requesting the Court to send the sample kept with the local health authority to the Director of Central Food Laboratory for analysis. Therefore it is not possible to hold that the application filed by the petitioner was belated. 8. Therefore it is not possible to hold that the application filed by the petitioner was belated. 8. In the result the criminal revision case is allowed and the Magistrate is directed to send the sample to the Director, Central Food Laboratory,Calcutta, for analysis immediately on receipt of this order. V.K. ----- Criminal revision case allowed.