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2004 DIGILAW 728 (MP)

Sewaram v. State of M. P.

2004-09-01

S.SAMVATSAR

body2004
ORDER S. Samvatsar, J. 1. This revision is filed by the accused challenging the order dated 4-1-2001 passed by the Chief Judicial Magistrate, Shivpuri in Criminal Case No. 247/97 whereby application of the filed by the petitioners under section 245 of the Code of Criminal Procedure is rejected. 2. Brief facts of the case are that petitioners carry on the business of Vanilla Dairy Classic Ice Cream. Petitioner No. 1 is the vendor of the ice cream. Petitioner No. 2 is the distributor and petitioner No. 3 is its manufacturer. On 21-6-1996, non-petitioner Shri L.S. Bhatnagar has taken a sample of the product i.e. vanilla dairy classic ice cream for analysis. It is alleged that said sample was found to be substandard by the public Analyst. On the basis of the report of the Public Analyst a complaint under sections 7, 16(1)(a)(1)(ii) of the Prevention of Food Adulteration Act, 1954 was filed. Local Health Officer issued notice to the present petitioners under section 13(2) of the Act stating that the sample taken by Shri Bhatnagar was found to be substandard and adulterated. It is also stated that if the petitioners are not agree to the report of the Public Analyst, then the petitioners can challenge the report of the Public Analyst by making an application before the trial Court within a period of ten days from the date of receipt of the notice. Accordingly, petitioner No. 1 in exercise of his rights under section 13(2) of the Act applied before the trial Court within ten days for re-analysis of the sample by the Central Food Laboratory. Said application was allowed by the trial Court by order dated 25-2-1997 and direction was given to the petitioner to deposit the necessary charges for re-analysis of the sample. Petitioner deposited the necessary charges for re-analysis of the sample. Sample was sent for re-analysis. On 5-3-1997 another part of the sample was produced before the trial Court and the trial Court passed order for sending the sample to the Central Food Laboratory and accordingly on the same date, sample was sent to the Central Food Laboratory. Central Food Laboratory gave its report on 9-4-1997, which was received by the trial Court on 24-5-1997. On 5-3-1997 another part of the sample was produced before the trial Court and the trial Court passed order for sending the sample to the Central Food Laboratory and accordingly on the same date, sample was sent to the Central Food Laboratory. Central Food Laboratory gave its report on 9-4-1997, which was received by the trial Court on 24-5-1997. In the said report it was mentioned that- The contents of the bottle was found in leaky condition leaving behind only the solid portion and little quantity of the sample which is insufficient to carry out tests/analysis of the parameters of ice cream as laid down under the provisions of PFA Act, 1954 and Rules thereof. Thus, from the report of the Central Food Laboratory, it appears that there was insufficient quantity of the sample and remaining quantity was in a solid form. 3. Petitioner, therefore, filed an application under section 245(2) Criminal Procedure Code stating that valuable rights of the petitioner have got seriously affected/denied as the sample of the ice cream could not be analysed by the Central Food Laboratory. Therefore, he prayed that the petitioner may be discharged forthwith. Trial Court rejected this application, hence, the present revision. 4. Learned counsel for the petitioner submitted that in such a situation, he should be discharged from the charges framed against him. Counsel for the petitioner for this purpose has relied on the judgment of the Apex Court in the case of Calcutta Municipal Corporation vs. Pawan Kumar Saraf, AIR 1999 SC 738 wherein the Apex Court has held that sub-section 2(B) of section 13 requires the Court to dispatch one of the parts of the sample under its own seal to the Director of Central Food Laboratory. Once it is dispatched, it is the duty of the said Director to send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample specifying the result of the analysis. Certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst under sub-section (1). When the statute says that the certificate shall supersede the report, it means that the report would stand annulled or obliterated. Once the certificate of the Director of Central Food Laboratory reaches the Court, report of the Public Analyst stands superseded. When the statute says that the certificate shall supersede the report, it means that the report would stand annulled or obliterated. Once the certificate of the Director of Central Food Laboratory reaches the Court, report of the Public Analyst stands superseded. Thus, legal impact of the certificate of the Director is three fold; (i) it annuls or replaces the report of the Public Analyst, (ii) it gains finality regarding the quality and standard of the food involved in the case and (iii) it becomes irrefutable so far as the facts stated therein are concerned. 5. Relying on the aforesaid judgment, learned counsel for the petitioner submitted that once there is report from the Central Food Laboratory, then the report of the Public Analyst looses its legality and sanctity and the same is replaced by the report of Central Food Laboratory. Therefore, in the present case, report of the Public Analyst has not evidentiary value as the same is replaced by the report of Central Food Laboratory. Report of the Central Food Laboratory does not indicate that the food stuff was substandard. 6. Similar view is taken by the Apex Court in the case of Food Inspector Ernakulam vs. P.S. Sreenivasa Shenoy, AIR 2000 SC 2577 . 7. Apex Court in the case of Chetumal vs. State of M.P., AIR 1981 SC 1387 has laid down that conviction of the accused on the basis of the report of the Public Analyst by excluding consideration to the report of Central Food Laboratory cannot be sustained. 8. Punjab High Court in the case of Harbans Lal vs. State of Punjab, 1997(2) FAC 1 has held that the accused has valuable right under section 13(2) and if the sample sent to the Central Food Laboratory is leaked and therefore, report could not be obtained from the Central Food Laboratory, prejudice is caused to the accused as his valuable right under section 13(2) of the Act is lost. In that case, it is held that no conviction can be based on the basis of the report of Public Analyst. Therefore, Punjab High Court has quashed the proceedings. This Court in the case of Standard Agencies vs. State of M.P., 1998 (1) FAC 188 has held that accused has valuable right under section 13(2). In that case, it is held that no conviction can be based on the basis of the report of Public Analyst. Therefore, Punjab High Court has quashed the proceedings. This Court in the case of Standard Agencies vs. State of M.P., 1998 (1) FAC 188 has held that accused has valuable right under section 13(2). In that case, bottle containing sample sent to Central Food Laboratory was cracked and its contents had leaked out and sample could not be analysed. In such situation, this Court has held that petitioner has lost his valuable right under section 13(2) and quashed the proceedings. 9. This Court in the case of Suresh Narain vs. Food Inspector, 2003 (2) MPLJ 120 has held that if the sample sent to the Central Food Laboratory is not in a condition which is fit for analysis, then it causes prejudice to the accused and therefore, charges against the accused should be quashed. 10. Considering all these cases, I find that in the present case as the sample sent to the Central Food Laboratory was not found sufficient for analysis and could not be analysed by the said Laboratory, petitioner in the present case has lost his valuable right under section 13(2) of the Act. Report of the Public Analyst is already superseded and no conviction can be based on the said report. It will be a futile exercise to allow the trial to go on as there are not chances of conviction. 11. In such circumstances, present revision deserves to be allowed and is hereby allowed. Charges framed against the petitioner are hereby quashed and the petitioner is discharged from the charges framed against him.