Research › Search › Judgment

Gujarat High Court · body

2006 DIGILAW 398 (GUJ)

STATE OF GUJARAT v. Divyesh Padmakant Shah

2006-07-07

S.R.BRAHMBHATT

body2006
Judgment S.R. Brahmbhatt, J.—Rule. Shri T.R. Savani, leaned Counsel, waives service of rule on behalf of the respondents. 2. The applicant-State of Gujarat has preferred this application under Section 5 of the Limitation Act for condoning delay of 10 days occurred in preferring Criminal Appeal No. 724 of 2004 challenging the order of acquittal dated 25.08.2003, passed by the J.M.F.C., Mandvi, in Criminal Case No. 456 of 2002. 3. It is, indeed unfortunate that the State machinery did not take appropriate steps under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the PFA Act”) for serious offence under the PFA Act. The ground, mentioned in the memo of application, indicates that the delay deserves to be condoned. However, in peculiar facts and circumstances of this case, this Court is not inclined to condone the delay. The facts needs to be narrated so as to appreciate the controversy in question. 4. At the relevant time, the concerned Food Inspector-original complainant on 29.10.1993 visited the premises of the Accused No. 1 and bought packet of iodized salt (Paras) for analysis. The requisite notice under Rule 12 in Form No. 6 was issued and the receipt for payment for the sample food article was also obtained. The said food article was sent for public analysis after complying with the provisions for sealing and labelling etc. The Public Analyst in his report dated 25.11.1993 signed on 23.11.1993 had opined that the sample food article was adulterated, as it was not in conformity with the standards prescribed under the PFA Rules. 5. The following salient features emerging from the judgment and order of acquittal impugned in appeal and leave to appeal would go a long way to show that though delay of 10 days in filing this appeal deserves to be condoned on the grounds mentioned in the delay condoning application, as ordinarily this Court would have surely condoned the same, but condoning the delay would itself of serving the ends of justice, would result into miscarriage of justice. (1) The concerned Food Inspector Shri S.G. Nayak had purchased the sample of salt from the Accused No. 1 on 29.10.1993. (2) The complaint came to be filed only on 30.05.2002 i.e., about nine years after the sample food article was purchased for analysis. (1) The concerned Food Inspector Shri S.G. Nayak had purchased the sample of salt from the Accused No. 1 on 29.10.1993. (2) The complaint came to be filed only on 30.05.2002 i.e., about nine years after the sample food article was purchased for analysis. (3) The Report of Public Analyst dated 25.11.1993 signed on 23.11.1993 indicated that the sample of salt did not contain the required iodine prescribed under the PFA Rules; 1955. (4) The Bill No. 678 is produced at Exhibit No. 56 showing that the vendor Accused No. 1 had purchased the Salt in question from the Accused No. 2 firm. (5) The sample was purchased from the Accused No. 1 in sealed packet only. The Food Inspector has admitted in his deposition that the manufacturer’s seal on the packet of salt was found to be intact. (6) The Food Inspector has admitted in his deposition that the sample salt was in sealed packet and it did not appear to be tempered with. Meaning thereby, the Accused No. 1 was entitled to claim benefit of warranty under the provisions of Section 19(2) of the PFA Act; 1954. (7) The Item A.15.01 and A.15.02 in appendix B of PFA Rules; 1955 prescribed that the content of potassium iodated in salt should be in the range of 25-35 ppm at the manufacturers’ level and shall not be less than 15 ppm is distribution channel including retail level and that Iodine content at manufacturers’ level should be not less than 30 parts per million on dry weight basis and not less than 15 parts per million on the dry weight basis at the Distribution channel including retailers’ level respectively. (8) The fact remains to be noted that the Food Inspector has also admitted in his cross-examination that the iodine in the salt has tendency to evaporate fast. (9) There is no evidence on record showing as to how the salt sample was kept for all these nine years. (10) The trial Court has taken into consideration that in view of the provisions of Section 468 of Criminal Procedure Code; 1973 the complaint was filed belatedly after the expiry of the period of nine years. (9) There is no evidence on record showing as to how the salt sample was kept for all these nine years. (10) The trial Court has taken into consideration that in view of the provisions of Section 468 of Criminal Procedure Code; 1973 the complaint was filed belatedly after the expiry of the period of nine years. (11) The laches in filing the complaint after nine years has resulted in to depriving the accused of their rights of having the sample further tested in Central Food Laboratory under Section 13(2) of the PFA Act; 1954. 6. The Apex Court has in case of Municipal Corporation of Delhi vs. Ghisaram, reported in 1967 PFR 300 (SC), observed that due to delay in filing the complaint the valuable right of accused under Section 13(2) gets affected and hence, it can be said that the accused is prejudiced. In such a circumstances the acquittal need not be interfered with. 7. The provisions of Section 468 of the Criminal Procedure Code also deserves to be borne in mind while considering the application for condoning the delay in filing the appeal. In view of the provisions of Section 468 of the Criminal Procedure Code; 1973 the original complaint which has filed after inordinate delay of nine years without any plausible explanation justifying the same, the complaint itself was not maintainable. Its no one’s case that Section 468 of Criminal Procedure Code will not have any application in view of the fact that the PFA Act; 1954 being a special statute it would be governed by its own provisions. The provisions of Criminal Procedure Code are applicable to the proceedings under the PFA Act also and wherever their exclusion is warranted the legislature has made specific provisions excluding some of the provisions of Criminal Procedure Code, 1973. The Section 20-AA of the PFA Act; 1954 expressly excludes the applicability of Section 360 of the Criminal Procedure Code and the provisions of the Probation of Offenders Act; 1958. In absence of any such express exclusion of the provisions of Section 368 it could well be said that the provisions are attracted to the complaint filed under the PFA Act; 1954 also. 8. In absence of any such express exclusion of the provisions of Section 368 it could well be said that the provisions are attracted to the complaint filed under the PFA Act; 1954 also. 8. It is submitted on behalf of the State that in view of the provisions of Sub-section (3) of Section 470 of the Criminal Procedure Code; 1973 the time spent in obtaining the requisite sanction under Section 20 of the PFA Act; 1954 deserved to be excludes while computing the limitation and in view of this the trial Court ought not to have held Section 468 of the Criminal Procedure Code; 1973 against the prosecution. This contention thought appears to be attractive it deserves to be rejected. In fact, the trial Court has not declined to take cognizance of the office. The trial has proceeded in accordance with the provisions of the Criminal Procedure Code and the trial Court has also recorded its findings on other points after affording full opportunity to the prosecution. The trial Court has after recording the plea of denial proceeded with the trial and recorded evidences. The trial Court has also recorded further statement of the accused under the provisions of Section 313of the Criminal Procedure Code. The trial Court has noted at a place in the impugned judgment that in view of the provisions of Section 468 of the Criminal Procedure Code also the accused cannot be convicted. But even a cursory glance at the impugned judgment would show that its only one of the reasons for acquittal and not the sole reason. The trial Court has in fact found that enormous delay in lodging the prosecution has resulted into depriving the accused of his valuable right under Section 13(2) of the PFA; 1954 of having the sample analyzed in the Central Food Laboratory. The findings in respect of lack of evidence as to how the sample of salt was preserved for all these nine years go to show that the basis of the impugned order of acquittal is not only the provisions of Section 468 of the Criminal Procedure Code as alleged by the applicant. 9. As could be seen from the aforesaid discussion that the trial Court has not declined to take the cognizance on the ground of delay and has not treated the matter to be time barred. 9. As could be seen from the aforesaid discussion that the trial Court has not declined to take the cognizance on the ground of delay and has not treated the matter to be time barred. In fact, the trial Court has after analysis of evidence adduced by the prosecution come to the conclusion that the prosecution has failed in proving its case beyond reasonable doubt so as to bring home the guilt on the part of the accused. 10. It would not be out of place to discuss the real purport of the provisions of Sections 468 and 470(3) of Criminal Procedure Code; 1973 and when one can validly seek exclusion of time spent in obtaining the requisite consent for lodging prosecution. In the instant case, the State cannot be permitted to take shelter under the provisions of Section 470 of Criminal Procedure Code; 1973 for excluding the time spent in granting the sanction for lodging the prosecution. The fair trial is one of the fundamental rights of the citizen as envisaged under Article 21 of the Constitution of India. The Hon’ble Apex Court has in case of Srinivas Pal vs. Union Territory of Arunachal Pradesh reported in AIR 1988 SC p-1729 observed as under. “It is not necessary in the facts and circumstances of the case to decide, whether, cognizance was properly taken. It is also not necessary to decide whether the extension of period of limitation under Section 473 must precede of taking of the cognizance of the offence. It is also not necessary to decide whether cognizance in this case was taken on 08.09.1977, as held by the learned Magistrate or on 31.03.1986, as held by the High Court. Having regard to the nature of offence there is enormous delay in proceeding with the criminal prosecution by the appellant 9½ years for a trial for rash and negligent driving, is too long a time. Quick justice is a sine qua non of Article 21 of the Constitution. Keeping a person in suspended animation for 9½ years without any cause at all and none was indicated before the learned Magistrate or before the High Court or before us cannot be with the spirit of the procedure established by law. Quick justice is a sine qua non of Article 21 of the Constitution. Keeping a person in suspended animation for 9½ years without any cause at all and none was indicated before the learned Magistrate or before the High Court or before us cannot be with the spirit of the procedure established by law. In that view of the matter, it is just and fair and in accordance with equity to direct that the trial or prosecution of the appellant to proceed no further. We do so accordingly.” The Hon’ble Apex Court has in another case of State of Punjab vs. Sarwan Singh, reported in AIR 1981 SC p-1054 observed as under Counsel for the State of Punjab was unable to assail the point of law derived by the High Court regarding the interpretation of Section 468. The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecution long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the state or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.” Thus, what is important is fair trial to citizens. No proceedings are to be permitted if it is not in consonance with the spirt and letter of the Article 21 of the Constitution. The Section 470(3) of the Criminal Procedure Code; 1973 does not specify any period that may be taken in issuing the sanction. It merely provides that the time taken in issuing the sanction be excluded while computing the period of limitation under Section 468 of the Criminal Procedure Code; 1973. The Section 470(3) of the Criminal Procedure Code; 1973 does not specify any period that may be taken in issuing the sanction. It merely provides that the time taken in issuing the sanction be excluded while computing the period of limitation under Section 468 of the Criminal Procedure Code; 1973. Can this provision be construed to mean that howsoever long time might have been taken by the State in issuing the sanction for prosecution but once it is granted than the entire period spent in granting the same must be excluded while computing the period of limitation under Section 468 of the Criminal Procedure Code; 1973. Such an interpretation would be anathema to the much cherished principle of Fair Trial under Article 21 of the Constitution of India. There is requirement of reading “reasonable time” in the provision so as to avoid possibility of vexatious litigation against the citizens. And the “Reasonable Time” shall be decided in facts and circumstances of each case. The State has to come out with all convincing and cogent material to establish that despite due diligence and due efforts the sanction could not be issued within the period of limitation so that the same may be excluded while computing the limitation under Section 468 of the Criminal Procedure Code. 11. Against the aforesaid backdrop the instant case deserves to be examined. The long unexplained delay of about nine years in granting the sanction for lodging the prosecution cannot be overlooked by any Court. The State cannot push under the carpet the issue of granting sanction for long period of nine years and than plead for exclusion of the said period under the provisions of Section 470 of the Criminal Procedure Code; 1973. The State has to prove that despite due diligence and all efforts the sanction could not be issued and hence, the same deserves to be excluded under the provisions of Section 470 of the Criminal Procedure Code. In the instant case the prosecution has advanced no such plea based upon convincing evidence. The question that why was the sanction not granted for these many years has remained unanswered. In the instant case the prosecution has advanced no such plea based upon convincing evidence. The question that why was the sanction not granted for these many years has remained unanswered. The provision of Section 470 of the Criminal Procedure Code cannot be considered to cloth the State with powers to withhold the issuance of sanction as its sweet will and allot the period of limitation under Section 468 of the Criminal Procedure Code to pass and then plea exclusion of the said period under the provisions of Section 470 of the Criminal Procedure Code. 12. In view of this even if the delay in filing this appeal and leave to appeal is condoned no useful purpose is going to be served. This Court is of the considered opinion that its State has not made out any case for invoking its discretionary powers in condoning the delay in preferring appeal and leave to appeal for challenging the order of acquittal when the complaint itself was not maintainable as it was filed after the period of nine years without explaining. In fact, condoning the delay occurred in filing the appeal and leave to appeal challenging the acquittal order would result into putting the respondents at greater hardship without there being any valid case against them. Thus, condoning the delay and admitting the appeal by granting the leave would rather result into miscarriage of justice. 13. In the result, this application for condonation of delay in filing the application for leave to appeal and appeal deserves to be rejected and it accordingly rejected. In view of this order the application for leave to appeal and appeal also fail and they also accordingly stand disposed of as rejected. 14. Rule is discharged. * * * * *