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2005 DIGILAW 1019 (RAJ)

State v. Kesarichand

2005-04-06

SATYA PRAKASH PATHAK

body2005
Judgment Satya Prakash Pathak, J.-This State appeal has been filed under Section 378(iii) & (i) of the Criminal Procedure Code against the Judgment and order dated 211.1987 passed by learned Chief Judicial Magistrate, Ratangarh in Criminal Case No. 277/85, whereby the accused respondents have been acquitted of the charge under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act) 2. It has been contended by the learned Public Prosecutor that provisions of Section 13(2) of the PFA Act read with Rule 9-A of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules of 1955) are not mandatory in nature and the learned trial Court has wrongly acquitted the accused of the charge. 3. According to the learned Public Prosecutor, a sample of vegetable oil taken from the shop of the accused was found to be adulterated in the report of Public Analyst, State Central Public Health Laboratory, Rajasthan, Jaipur and also in the report of Director, Central Food Laboratory, Ghaziabad. The learned Public Prosecutor in support of his contentions relied on the cases reported in (1) 1984 CrLJ 731 (Tulsiram vs. State of Madhya Pradesh), and (2) 1987 CrLR page 107 (Raj) (Sanwarmal & Anr. vs. State of Rajasthan). 4. On the other hand, learned Counsel for accused respondents argued that the provisions of Section 13(2) of the PFA Act read with Rule 9 of the Rules of 1995 (sic) are mandatory in nature. He also contended that there is yet another important legal aspect which clinches the issue completely inasmuch as that a report received from the Director, Central Food Laboratory, Ghaziabad dated 31.01.1985 was not exhibited during the course of trial, no question was framed in that behalf and put to the accused in examination under Section 313, CrPC. Learned counsel placed reliance on the case reported in 1988 (II) FAC page 246 (Jagdish Prasad vs. State of Rajasthan). 5. I have considered the rival submissions made before me. 6. In the case of Tulsiram vs. State of Madhya Pradesh, the authority cited by learned Public Prosecutor, the Honble Supreme Court has observed that non-compliance of Rule 9A is not fatal. 5. I have considered the rival submissions made before me. 6. In the case of Tulsiram vs. State of Madhya Pradesh, the authority cited by learned Public Prosecutor, the Honble Supreme Court has observed that non-compliance of Rule 9A is not fatal. As per the decision, the expression “immediately” in Rule 9-A is intended to convey a sense of continuity rather than urgency and what must be done is to forward the report to the person from whom the sample was taken at the earliest so as to facilitate the exercise of the statutory right under Section 13(2) in good and sufficient time before the prosecution commences leading evidence. 7. In the case of Sanwarmal (Supra) this Court relying on the decision of Honble Apex Court in the case of Tulsiram (Supra) observed that Rule 9-A of the Rules is not of mandatory nature and is directory. 8. In the case of Jagdish Prasad vs. State of Rajasthan, 1988 (II) FAC page 246, it has been held that while examining the accused under Section 313 of the CrPC if no question has been put to him about the report sent by the Central Food Laboratory, conviction cannot be based and the accused is entitled to acquittal for the reason that the report of the Central Food Laboratory supersedes the earlier report of Public Analyst. 9. It is not in dispute in the instant case that the report sent by the Central Food Laboratory, Ghaziabad, which is available on record, has not been marked as exhibit, no question has been framed in that regard under Section 313, CrPC, and no explanation whatsoever in that regard has been sought from the accused. 10. In view of the law laid down by this Court that conviction cannot be based in the absence of question framed in relation to the subsequent report of the Central Food Laboratory, when I find that subsequent report received in the case has not been placed on record and no question has been framed in that relation, in my humble opinion, the order of acquittal recorded by the learned trial Court by its Judgment and order dated 211.1987 requires to be maintained. 11. So far as Rule 9-A of the Rules of 1955 is concerned, that has been considered and held to be directory in nature by the Honble Apex Court. 12. The matter is of the year 1984. 11. So far as Rule 9-A of the Rules of 1955 is concerned, that has been considered and held to be directory in nature by the Honble Apex Court. 12. The matter is of the year 1984. More than 20 years have elapsed since then and the accused has already been acquitted of the charge. Therefore, taking into consideration all the facts and circumstances of the case and the law laid down by this Court, I do not find it to be a fit case to interfere in the findings recorded by the learned trial Court. 13. In view of what has been discussed hereinabove, I do not find any merit in this State appeal and the same deserves to be dismissed. 14. In the result, the appeal stands dismissed after confirming the Judgment and order dated 211.1987 passed by learned Chief Judicial Magistrate, Ratangarh in Criminal Case No.277/85.