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2002 DIGILAW 830 (MP)

ARJUNSINGH s/o DULSINGH RAJPUT v. STATE OF M. P.

2002-09-03

S.L.KOCHAR

body2002
ORDER : This revision has been directed against the judgment dated 30-7-2002 passed by the learned II Addl. Sessions Judge, Ratlam in Cr. Appeal No. 28/2000 arising out of the judgment dated 28-1-2000 passed by the learned Judicial Magistrate First Class, Alote in Cr. Case No. 487/1996 convicting the applicant for the offence under section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act and sentencing him to undergo R. I. for six months and a fine of Rs. 1,000/-, in default of payment of fine to suffer further S. I. for one month. 2. For disposal of this revision, the facts in narrow compass are that on 13-10-1983, in the morning at 7.00 a.m. the applicant was found selling milk near bus-stand of village Taal. The Food Inspector PW-1 Laxman Prasad Pachori purchased milk after disclosing his identity to the applicant. After completing the procedure according to the provisions of law for taking sample, the milk of sample was sent for chemical analysis and according to the Public Analyst report, the sample of milk was found adulterated. Therefore, the complaint was filed before the Judicial Magistrate First Class, Alote District Ratlam. 3. Before the trial Magistrate, the applicant denied the charges. The learned trial Court, after examining the prosecution witnesses and hearing both the parties, convicted and sentenced the applicant as indicated herein-above. Against his conviction and sentence, the applicant preferred an appeal, but the appeal too has been dismissed. This is the judgment impugned in this revision. 4. I have heard Shri Sanjay Sharma, learned counsel for the applicant and Shri G. Desai, learned Deputy Advocate General appearing for the Non-applicant/State, and perused the entire record. 5. Shri Sharma submitted that as per the provision under sections 16-A and 16(1) of the Prevention of Food Adulteration Act (for brevity 'the Act), the learned Judicial Magistrate First Class, Alote was not empowered to try the case and, therefore, the conviction and sentence of the applicant is not sustainable because, the trial was without jurisdiction. In support of his contention, he placed reliance on a judgment reported in Anandilal vs. State of M. P., 1995 MPWN Note No. 96. He further contended that there was delay in launching the prosecution because of which the applicant was denied his valuable right given under section 13(2) of the Act and which has caused serious prejudice to his case. He further contended that there was delay in launching the prosecution because of which the applicant was denied his valuable right given under section 13(2) of the Act and which has caused serious prejudice to his case. Therefore, his conviction is bad in law. On this submission he has cited a Division Bench judgment of this Court in State of M. P. vs. Shri Tulsiram, AIR 1970 M.P. 123 . In the alternative, he has also submitted that since the milk is a primary food, the applicant may be awarded the sentence of three months looking to the age of the applicant who is the first offender and is facing trial since 1993. The applicant has also the responsibility to maintain his dependants, he being the only bread winner in the family. 6. On the other hand, the learned Dy. Advocate General Shri Desai submitted that in view of the Notification dated 11-10-1977 issued by the State Government in exercise of the powers conferred by section 16-A of the Act, the trial conducted by the learned Judicial Magistrate First Class Alote, is well within his jurisdiction. This Notification is available in 1978 MPLT Part II page 12 No. 14. He further contended that for launching the prosecution, there is no inordinate delay committed by the prosecution. Therefore, no prejudice is caused to the applicant. 7. This Court finds no substance in the arguments of the learned counsel for the applicant that the trial by learned JMFC, Alote was without jurisdiction as per provision under section 16-A of the Act. For resolving the controversy, it would be apt to reproduce section 16-A of the Act and also the Notification issued by the State Government dated 11-10-1977 issued under section 16-A of the Act :- The relevant portion of section 16-A of the Act is as under :- 16-A. Power of Court to try cases summarily. For resolving the controversy, it would be apt to reproduce section 16-A of the Act and also the Notification issued by the State Government dated 11-10-1977 issued under section 16-A of the Act :- The relevant portion of section 16-A of the Act is as under :- 16-A. Power of Court to try cases summarily. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of section 16 shall be tried in a summary way by a judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 both inclusive) of the said Code shall, as far as may be, apply to such trial:" Notification No. 14 : Notification No. 3369-XVII-Med-IV, dated the 11th October, 1977 :- In exercise of powers conferred by section 16A of the Prevention of Food Adulteration Act, 1954 (No. 27 of 1954), the State Government hereby empowers :- (1) Chief Judicial Magistrates at headquarters of all revenue districts in the State; (2) Additional Chief Judicial Magistrates at headquarters of all revenue districts in the State and, (3) Senior most presiding officers of Courts of Judicial Magistrate of First Class of Headquarters of all Tahsils in the State; not being also head-quarters of revenue districts; to try all offences under sub-section (1) of section 16 of the said Act in summary may. 2. The First Class Magistrate, who is senior in service, may be treated as the senior most Magistrate, First Class in a Tahsil Headquarter. 8. The aforesaid Notification is clearly authorising the Senior most Judicial Magistrate First Class at the Headquarters of all Tahsils in the State. Alote is a Tahsil place and there is only one Judicial Magistrate First Class. Therefore, by virtue of clause (3) of the Notification, the learned Judicial Magistrate First Class, Alote had jurisdiction to try the cases under the Act. The judgment of Anandilal (supra) is not applicable in the facts and circumstances of the present case, because, the case was tried by the Judicial Magistrate First Class, Ujjain which is a District Headquarter having Chief Judicial Magistrate. The judgment of Anandilal (supra) is not applicable in the facts and circumstances of the present case, because, the case was tried by the Judicial Magistrate First Class, Ujjain which is a District Headquarter having Chief Judicial Magistrate. According to the Notification, the State Government has empowered the CJM and ACJM of all Head Quarters of all revenue districts of the State to try the case under the Act as per provisions under section 16-A thereof. So this Court holds that the trial of the applicant was well within the jurisdiction of the Judicial Magistrate First Class. Alote. 9. The second limb of argument of the learned counsel for the applicant is that there is delay in the analysis of the sample by the Public Analyst and also the delay in launching the prosecution. In the present case, the sample was taken on 13-10-1993. the sample was sent to the Analyst on the same date, whereas the sample was received on 14-10-1993 and the report is dated 10-11-1993. Copy of this report was sent by Registered Acknowledgment Due to the applicant vide Exs. P/15, P/16 and P/13 on 18-2-1994. The applicant was given due information vide postal receipt Ex. P/19 proved by PW-3, that the prosecution was launched against him before the learned Judicial Magistrate First Class Alote on 7-2-1994, and the case is fixed on 13-4-1994. On 13-4-1994, because of holiday, the case was taken up on 15-4-1994. On this day, the applicant was not present. Thereafter, the applicant remained present on 16-4-1994. On this date, the applicant has not filed any application for sending the sample to the Central Food Laboratory. He has also not made any complaint that he had not received any copy of the report sent by the Food Inspector. 10. In the present case, the Public Analyst's report (Ex. P/14) proved by PW-1 is also disclosing the fact that the sample was in a fit condition for the analysis. 11. The Food Inspector Laxman Prasad Pachori has stated in para 5 that after dividing the sample in three clean bottles he mixed 20-20 drops of formalin in each bottle and sealed the same immediately. With this evidence, the applicant cannot get any benefit of the judgment rendered by this Court in State of M. P. vs. Shri Tulsiram (supra). 11. The Food Inspector Laxman Prasad Pachori has stated in para 5 that after dividing the sample in three clean bottles he mixed 20-20 drops of formalin in each bottle and sealed the same immediately. With this evidence, the applicant cannot get any benefit of the judgment rendered by this Court in State of M. P. vs. Shri Tulsiram (supra). In this case, the Division Bench has held in para 29 as under :- "To conclude, we are of opinion that where the analysis by the Public Analyst is inordinately delayed and the launching of the prosecution also is inordinate delayed, prejudice to the accused being obvious, conviction cannot be based on the report of the public Analyst. Where, however, the analysis by the Public Analyst is not inordinately delayed and the preservatives are added in the prescribed quantity, the mere fact of some delay in launching the prosecution will not entitle the accused to claim an acquittal and the report of the Public Analyst can form the basis of conviction. Lastly, we are of the opinion that where report of the Public Analyst is not unduly delayed, but there is an infirmity in the prosecution case by failure to add the prescribed quantity of preservatives to the samples, prejudice to the accused being obvious, no conviction can be based on the report of the Public Analyst. The same result will follow if in addition to insufficiency of preservatives, the analysis by the Public Analyst is inordinately delayed." x x x 12. In the case in hand, delay in launching the prosecution was not of such nature which may cause any prejudice to the applicant, because, much prior to the date of launching of the prosecution, he must have received the copy of the Public Analyst Report and the letter as per provisions under section 13(2) of the Act. But he failed to follow his right by applying before the Court for sending the other intact bottles of sample for test, to the Central Food Laboratory. In the present case, required quantity of formaline was also added in the sample. Therefore, the question of diminishing its quality would not have arisen. 13. In the present case, the sample was a milk which fall within the category of primary food as per judgment of Supreme Court in Birbal vs. State of Haryana, (2002) I CCR 154 SC. In the present case, required quantity of formaline was also added in the sample. Therefore, the question of diminishing its quality would not have arisen. 13. In the present case, the sample was a milk which fall within the category of primary food as per judgment of Supreme Court in Birbal vs. State of Haryana, (2002) I CCR 154 SC. The applicant can be dealt with under Second proviso to section 16(1) of the Act. The applicant is facing this prosecution since 1993, he is a middle aged person having responsibility to maintain his family. He is the first offender. Therefore, it would be just and proper to reduce his sentence from six months R. I. to three months' R. I. and fine of Rs. 1,000/-, In default of payment of fine, to suffer further S. I. for one month. 14. The revision is partly allowed. The conviction of the applicant is maintained for the offence under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, but his sentence is reduced to the R. I. for three months and fine of Rs. 1,000/- and in default of payment of fine, to suffer R. I. for one month. 15. In view of the order as aforesaid, the application of the applicant for bail (M. Cr. P. No. 1948/02) is rendered infructuous. It is accordingly dismissed.