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2001 DIGILAW 71 (CHH)

HANEEF MOHAMMAD v. STATE OF M. P.

2001-07-04

R.S.GARG

body2001
ORDER As per Hon'ble Shri R.S. Garg, J. : By this petition, under Section 397/401 of the Code of Criminal Procedure, the petitioner seeks to challenge the correctness, validity and propriety of the judgment dated 2-3-1994 passed in Criminal Appeal No. 202 of 1989 by the learned IVth Additional Sessions Judge, Bilaspur confirming the judgment dated 22-12-1989 passed in Criminal Case No. 53/ 88 by the learned Judicial Magistrate First Class, Katghra (Bilaspur) convicting the appellant under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 sentencing him to undergo R.I. for 6 months and pay fine of Rs. 2,000 in dafault of payment of fine to undergo further R.I. for 6 months. The prosecution case, in brief, is that on 20-9-1987, PW-l, R.C. Yadav, a Food Inspector visited the shop of the accused and after giving him notice, purchased sample of Arhar Pulses (Rahar Dal). The sample was divided in proper parts. It was packed and sealed and later on, a part of sample was sent to the Public Analyst. The sample was drawn on 20-9-1987. It was sent to the Public Analyst on 21-9-1987. It was received by the Public Analyst on 25-9-1987. The Public Analyst, by its report EX.P-11 dated 10-11-1987, certified that the sample was adulterated as it contained prohibited synthetic colour. The report was received by the Deputy Director (Health) on 11-12-1987. The Food Inspector, in his turn, received for prosecution, Ex. P-12 was given. A notice was issued to the accused informing him that the case was fixed in the Court on 9-3-1988. The accused appeared before the trial Court on 25-1-1988. His bail bonds were taken and he was required to appear in the Court on 9-3-1988. As he denied commission of the offence, he was put to trial. The learned trial Court, after recording the evidence and hearing the parties, held in favour of the prosecution and convicted and sentenced the accused as referred above. As the appeal proved infructuous, the appellant has come to this Court. Learned counsel for the appellant contends that as there is violation of Rule 7(3) of the Prevention of Food Adulteration Rules, 1955, the prosecution is bad. He further submits that as the prosecution has failed to prove that Ex. As the appeal proved infructuous, the appellant has come to this Court. Learned counsel for the appellant contends that as there is violation of Rule 7(3) of the Prevention of Food Adulteration Rules, 1955, the prosecution is bad. He further submits that as the prosecution has failed to prove that Ex. P-13 was served upon or supplied to the accused and as the right of the accused under Section 13(2) of the Prevention of Food Adulteration Act is seriously prejudiced, the accused deserves to be acquitted. It is lastly contended by him that EX.P-13 is an incomplete document, therefore, a[so the accused deserves to be acquitted. Learned counsel for the State, on the other side, submits that the arguments of the appellant are misconceived and the two Courts below were justified in convicting and sentencing the accused. Rule 7(3) of the Rules says that the Public Analyst shall, within a period of 40 days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form III. The provisos appended to Sub-Rule (3) are not material. Section 13(2) of the Act provides Sec. 13(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 (2-A) : 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 is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. (2-B) : When application is made to the Court under sub-section (2), the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition. (2-C) : On receipt of the part of parts of the sample from the Local (Health) Authority under sub-section (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or,. as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within the month from the date of receipt of the part of the sample specifying the result of the analysis. (2-C) : Where two parts of the sample have been sent to the Court and only one part of the sample has been sent by the Court to the Director of the Central Food Laboratory under subsection (2-B), the Court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the Certificate from the Director of the Central Food Laboratory has been received by the Court : Provided that where the part of the sample sent by the Court to the Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof, the Court shall proceed in the manner provided in sub-section (2-D) : Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to prosecution. (2-E) : If, after considering the report, if any, of the Food Inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under subsection (1) is erroneous, the said Authority shall forward . one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions to sub-sections (2) to (2-D) shall, so far as may be, apply." The arguments of the learned counsel that provisions contained in Rule 7 (3) of the Rules and Section 13(2) of the Act are mandatory, are misconceived. In the matter of T.V. Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry, reported in AIR 1994 SC 1818, the Supreme Court has clearly held that provisions contained in Rule 7(3) of the Rule are simply directory and not mandatory. While considering question relating to Section 13(2) of the Act, the Court has made the observations that sub-section (2) of Section 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the said of prosecution, that valuable right would stand denied. The Supreme Court has further observed that in a given case, it must be shown that the delay has led to the denial of right conferred under Section 13(2) and that depends on the facts of each case and violation of the time limit given in sub-rule (3) of Rule 7 of the Rules by itself cannot be aground for the prosecution case being thrown out. Undisputedly, in the present case, after appearance of the accused, he did not make an application to the trial Court for getting the sample analyzed by the Central Food Laboratory. Undisputedly, in the present case, after appearance of the accused, he did not make an application to the trial Court for getting the sample analyzed by the Central Food Laboratory. The question of prejudice or violation of the right conferred upon the accused under Section 13(2) of the Act could be raised as a defence if the accused has made an application under Section 13(2) of the Act, the Court had sent the sample to the Central Food Laboratory and the Central Food Laboratory reported to the Court that the sample was unfit for analysis. If such was the case, the applicant could certainly argue that his valuable right was seriously hampered and had suffered serious jolt to his defence. But, unfortunately, in this case, the accused, after putting in his appearance, did not make an application to the Court. In view of the said judgment of the Supreme Court, it cannot be held that the accused suffered any prejudice to his right. It was next contended that the prosecution has failed to prove service of EX.P-13 upon the accused. Unfortunately, this argument loses sight of answer to the Question No. 20 put to the accused. The Court had catagorically put the question to the accused that the witness was stating in the Court that Ex. P-13 was sent to the accused. In reply to the said question, the accused un-mistakenly admitted before the Court that he had received the notice. In view of the said reply of the accused it cannot now be argued that the prosecution failed to prove service of Ex. P-13 on the accused. So far as question of in completeness of EX.P-13 in concerned, the accused never stated before the Court that what he received was an incomplete copy or what was produced in the Court was an incomplete copy. The accused did not put any question to PW-l that EX.P-13 was an incomplete copy. The question was not raised before the two Courts that Ex.P-13 was an incomplete copy. It was next contended that the prosecution could not be conducted by the Food Inspector in view of Section 302 of the Code of Criminal Procedure, 1973. The argument loses sight of the fact that present was a case which was instituted on a complaint. The question was not raised before the two Courts that Ex.P-13 was an incomplete copy. It was next contended that the prosecution could not be conducted by the Food Inspector in view of Section 302 of the Code of Criminal Procedure, 1973. The argument loses sight of the fact that present was a case which was instituted on a complaint. A Food Inspector is authorised to file a complaint and the Court is obliged to take cognizance of the matter and proceed further in the matter. Section 302 of the Code of Criminal Procedure, 1973 does not apply to a private complaint. The very language of the Section 302 shows that it would apply to a case instituted on a police report. An offence under provisions of Food Adulteration Act is not cognizable but a complaint is required to be filed. When a complainant appears in a Court, then he himself may conduct his case. He is not obliged to obtain permission to conduct the case. The argument is rejected. It was lastly contended that the accused is facing trial since last 13 years, therefore, the sentence be reduced to the period already undergone by him. This argument runs contrary to the provisions of Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The law provides that if a man is found guilty under this provision, then he shall in addition. to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than 6 months but which may extend to three years, and with fine which shall not be less than Rs. 1,000/-. In view of the language of the Section, it is not possible for this Court to reduce the period of sentence to the period already undergone. I find no reason to interfere. The petition is dismissed. The accused appears to be on bail. He shall surrender before the trial Court on or before 7th August, 2001. In case of his non-appearance, the trial Court shall forfeit the bonds, proceed with the recovery and shall issue necessary warrants against the accused. Petition Dismissed.