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2006 DIGILAW 2325 (RAJ)

Balla Ram v. State of Rajasthan

2006-07-25

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This criminal miscellaneous petition under Section 482, CrPC is directed against the order dated 22.07.2004 passed by the Chief Judicial Magistrate, Jodhpur (for short the trial Court hereinafter) in Criminal Case No. 134/1999 whereby the trial Court posted the case for pre-charge evidence and summons case was converted to a warrant case. Aggrieved by the order impugned, the petitioner has filed this petition seeking quashing of the proceedings. 2. I have heard learned Counsel for the parties and carefully gone through the order impugned and also the record of the trial Court. 3. A complaint was filed by the Food Inspector Onkar Chand before the trial Court against the petitioner and one Bhiyaram for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short the Act hereinafter) read with Rule 15(1) of the Food Adulteration Rules, 1955 (for short the Rules of 1955 hereinafter). The said complaint was filed on 27.05.1999 on the ground that the sample of cow milk taken from the petitioner on being analysed by the Public Analyst was found to be adulterated. 4. It is contended by the learned Counsel for the petitioner that the shop of the petitioner was inspected on 211.1996 and the sample of cow milk was taken. The sample was sent to the Public Analyst on 012.1996 and on being analysed, it was found to be adulterated. The Chief Medical and Health Officer accorded sanction to prosecute the petitioner on 14.01.1997 which was applied on 06.01.1997 and the complaint was filed almost after 2 and half years from the date of taking the sample. The CMHO sent a letter dated 05.06.1999 addressed to the petitioner asking if he desired the sample to be tested by the Central Food Laboratory. That letter was not sent on the correct address of the petitioner and, therefore, the letter was never served on the petitioner. Though the letter itself was sent after 2 and half years from the date of taking sample, therefore had the letter been received by the petitioner, even otherwise, the petitioner was required to express his desire to get the sample of cow milk kept by the local authority analysed by the Central Food Laboratory within ten days of receipt thereof . But by the time, the letter was originated by the CMHO, the cow milk had already underwent deterioration and, therefore, no useful purpose could have been served if the petitioner desired to get the sample of the cow milk analysed by the Central Food Laboratory. Learned Counsel has relied on the decision of the Supreme Court in Municipal Corporation Delhi vs. Ghisa Ram, AIR 1967 SC 970 decision of Allahabad High Court in Babboo vs. State, AIR 1970 Allahabad 122 and a decision of this Court in Gaagan Das & Anr. vs. State of Rajasthan, 1999 WLC Raj. (UC) 76. 5. Learned Counsel appearing for the State though supported the complaint but failed to show any provision where the sample of cow milk could be fit to be analysed after 2 and half years from the date of taking the sample. In Municipal Corporation, Delhi vs. Ghisa Ram (Supra), while considering the provisions of Sub-section (2) of Section 13 of the Act, Honble the Apex Court held that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that such right will not be denied to him. The right is a valuable one because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by the Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution e.g. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst even though that report continues to be evidence in the case of the facts contained therein. 5.In Babboo vs. State (Supra), the Allahabad High Court held that sample of cows milk, to which necessary quantity of formaline has been added according to rules and which has been kept in normal circumstances retains its character and is capable of being usefully analysed for a period of about ten months. 7. In Municipal Corporation, Delhi vs. Ghisa Ram (Supra), the report of the Public Analyst having sent on 210.1961 to the prosecution, the prosecution could have alleged well in time to enable the respondent therein to exercise his right under Section 13(2) of the Act without being handicapped by the deterioration of the sample. The prosecution, on the other hand, committed inordinate delay in launching prosecution when they filed complaint on 23.05.1962 and no explanation is forthcoming why the complaint was filed about seven months after report of the Public Analyst had been received by him. This is, therefore, clearly a case where the respondent was deprived of opportunity of exercising his right to get the sample examined by the Director, Central Food Laboratory. On this premise, the Supreme Court held that the respondent therein is entitled to claim that his conviction is vitiated by the circumstance of denial of his valuable right guaranteed by the Act as a result of conduct of the prosecution. 8. This Court in Gaagan Das vs. State (Supra), on similar facts and circumstances, quashed the proceedings for the offence under Section 7/16 of the Act. In that case the complaint was filed on 15.01.1991 whereas the sample was taken as back as on 21.03.1987. The matter was lingering on for pre charge evidence till 11.03.1997 and, therefore, the delay was not attributed to the accused therein. This Court held that no useful purpose will be served to allow the proceedings at the pre charge stage and the proceedings were quashed. In the instant case, not only inordinate delay in filing the complaint as also sending communication to the petitioner but the complaint filed in the year 1999 remained pending at the pre charge stage till date. This Court held that no useful purpose will be served to allow the proceedings at the pre charge stage and the proceedings were quashed. In the instant case, not only inordinate delay in filing the complaint as also sending communication to the petitioner but the complaint filed in the year 1999 remained pending at the pre charge stage till date. Undisputedly, the petitioner has a valuable right conferred by the statute under Section 13(2) of the Act to express his desire to get the sample of article of food (cow milk) taken by the local health authority analysed by the Central Food Laboratory and by efflux of time and delay in launching prosecution as also delay in sending the letter with regard to the report of Public Analyst, allowed the cow milk to lead to the situation of deterioration and rendered it worthless to be re-analysed by the Central Food Laboratory defeating the valuable right of petitioners and, therefore, if the proceedings is allowed to continue having the background of inordinate delay it would be nothing but futile exercise and, therefore, in my view, allowing the proceedings any further to continue is nothing but abuse of the process of Court and it would result in serious miscarriage of justice in depriving the petitioner of his right to get the sample analysed by the Central Food Laboratory. 9. Consequently, the petition is allowed and the criminal proceedings in Criminal Case No. 134/1999 qua petitioner Balla Ram are quashed. Stay petition also stands disposed of .