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2008 DIGILAW 1385 (RAJ)

State of Rajasthan v. Ashok Oil Industries

2008-05-16

M.C.BHAGWATI

body2008
Honble BHAGWATI, J.–This order governs an adjudication of criminal appeal directed against the judgment and order dated 22.5.1995 passed by Additional Chief Judicial Magistrate, Malpura Distt. Tonk whereby the learned trial Court acquitted the accused respondents namely Ratan Lal S/o Ramswaroop Vijay, Shambhoodayal S/o Bajranglal, Prabhudayal S/o Ramgopal, Rakesh Kumar S/o Satyanarain, Nathulal S/o Ramavatar and Ashok Oil Industries through Ratanlal S/o Ramswaroop Vijay in the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as the Act 1954). (2). The nub of the appellants story is that on 29.6.1991, PW.1 Trilok Chand Jain, Food Inspector of District Tonk reached at about 1.30 PM at Ashok Oil Industries situated at Adarsh Nagar, Malpura where the accused -respondent Ratanlal S/o Ramswaroop was found present as seller. The complainant found 20 tins of Mustard oil lying inside the oil industry. Having suspected the oil being adulterated, the Food Inspector took 375 grams sample of oil in a steel jug for analysis and paid price thereof to the accused respondent Ratan Lal. The sample was equally divided in three parts and filled in three small bottles which were accordingly sealed as per the requirement of law. One such sealed sample of mustered oil was sent for chemical analysis to public Analyst, Jaipur a report of which was received on 28th October, 1991. The sample of the said mustered oil which was sent for chemical examination was found to be adulterated as it did not conform to the prescribed standard. Having obtained the prosecution sanction from the competent authority, the Food Inspector filed a complaint in the Court of Additional Chief Judicial Magistrate, Malpura Distt. Tonk against the accused respondents who after trial acquitted them for the aforesaid charge. (3). Heard the learned Public Prosecutor Mr. B.K. Sharma, appearing for the State as also Mr. Nitin Jain appearing for the accused -respondents and perused the impugned judgment along with the relevant material available on record. (4). Shri B.K. Sharma, learned Public Prosecutor for the State has contended that the impugned judgment of the trial Court is against the facts and material available on record as such the same is liable to be set aside. Nitin Jain appearing for the accused -respondents and perused the impugned judgment along with the relevant material available on record. (4). Shri B.K. Sharma, learned Public Prosecutor for the State has contended that the impugned judgment of the trial Court is against the facts and material available on record as such the same is liable to be set aside. The learned Public Prosecutor has further argued that the trial Court has failed to appreciate the evidence of PW.1 Trilok Chand Jain, Food Inspector properly and ignored the aspect of sample being made it homogeneous which was found to be adulterated by the Forensic Laboratory. The impugned judgment of the lower Court is not well in tune with the evidence and material available on record, as such it deserves to be set aside. (5). Per contra, Mr. Jain, learned counsel appearing for the accused-respondents has duly supported the judgment of the trial Court and has contended that the finding of the lower Court with regard to the acquittal of the accused-respondents for the alleged charges is perfectly just and proper and it does not require any interference. He has further argued that the finding of the lower Court to the effect that the accused-respondents have been deprived of their valuable right of getting the sample analyzed by the Central Food Laboratory as provided under Section 13(2) of the Act, 1954 is perfectly legal and merely on this score, the accused-respondents deserve acquittal. As per the next argument of the learned counsel, the complaint in the instant case has been filed with the delay of approximately three years in the Court of Additional Chief Judicial Magistrate which has caused serious prejudice to the accused respondents as they could not avail their valuable statutory right of getting the sample analyzed by the Central Food Laboratory. From the material available on record, it is also proved that the information with regard to the report of public analyst was not sent to the accused-respondents as per the requirement of provisions of sub-section (2) of Section 3 of the Act, 1954. Since there was an inordinate and unexplained delay of approximately three years in launching prosecution against the accused-respondents, the same has resulted into miscarriage of justice and the accused-respondent deserve acquittal and in this regard the finding of the lower Court for no interference. Since there was an inordinate and unexplained delay of approximately three years in launching prosecution against the accused-respondents, the same has resulted into miscarriage of justice and the accused-respondent deserve acquittal and in this regard the finding of the lower Court for no interference. In support of his arguments, the learned counsel has cited various judgments of Honble Supreme Court and High Courts. (6). In Rameshwar Dayal vs. State of U.P., (1996) 2 PFA Cases, 197, the Honble Supreme Court has held as under: "Section 13(2) - report of the Public Analyst not supplied to the accused-consequently he could not get his own sample examined by the Central Laboratory-it is a very valuable right given to him, serious prejudice has been caused to the appellant because of non supply of the Public Analysts report as required under Section 13(2) of the Act. The High Court having noticed this, yet rejected the plea on the mere ground that such an objection was not raised before the trial Court. It is not a question of an objection, but it is a question of prejudice. Such a point can be raised even at a later stage if material on record supports the same. In the result the conviction and sentence are set aside." (7). In the case of State of Raj. vs. Ravi Kumar, RLW 2003(2) Raj. 925, this Court has observed that the accused has a valuable right of getting the sample analyzed by the Central Food Laboratory and if he is deprived of this valuable right by the prosecution then in the event of non-compliance of mandatory provisions of Section 13(2) and Rule 9-A framed thereunder entitles the accused for acquittal. (8). 925, this Court has observed that the accused has a valuable right of getting the sample analyzed by the Central Food Laboratory and if he is deprived of this valuable right by the prosecution then in the event of non-compliance of mandatory provisions of Section 13(2) and Rule 9-A framed thereunder entitles the accused for acquittal. (8). With regard to delay in institution of the complaint against the accused, the Bombay High Court in the case of Shri Rohit Mull and Cadburdy India Ltd. vs. State of Goa, (2006) 108 Bomlr 350 has observed as under: "the delay in instituting a prosecution under the Act can be said to deprive the accused of the right under Section 13(2) of the Act and to render his conviction illegal, it must be shown (i) that prejudice was caused to the defence (ii) that sample had deteriorated by the time the summons was received by the accused; and (iii) that the accused had utilised the right under Section 13(2) of the Act, of sending the sample to the Director of Central Food Laboratory." (9). In one case of Yogesh Babubhai Trivedi & 3 Ors. vs. K.V. Dabhi Food Inspector & 4 Ors., 2006 CriLJ 2039, the Gujarat High Court has observed that: "The complaints filed after the period of about four years is such an important issue from the view point of the petitioners, which cannot be overlooked or taken lightly by the Court." (10). It is a settled position of law that the inordinate delay in launching the prosecution causes serious prejudice to the accused preventing him from exercising his right under Section 13(2) of the Act of 1954. (11). In the instant case, the sample was taken by PW.1 Trilok Chand Jain, Food Inspector on 29th June, 1991 and the same was sent for chemical examination on 1st July, 1991 and the report of Public Analyst was also received by the complainant on 28th October, 1991 but the competent authority took about two and half years to accord the sanction for prosecution of the accused respondents and the complaint was filed after an inordinate delay of approximately three years in the Court of Additional Chief Judicial Magistrate, Malpura. The prosecution has miserably failed to explain the gross and inordinate delay of approximately three years in instituting the prosecution of the accused- respondents. The prosecution has miserably failed to explain the gross and inordinate delay of approximately three years in instituting the prosecution of the accused- respondents. The prosecution has also failed to prove that the complaint under sub-section (2) of Section 13 of the Act of 1954 was made in letter and spirit. Sub-section (2) of Section 13 of Act, 1954 confers a valuable right to the accused respondents to get the sample re-analaysed by the Central Food Laboratory. It is clearly contemplated that on receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the local (health) authority analyzed by Central Food Laboratory. The prosecution has also failed to ensure that the copy of report reached to accused- respondents in time. PW/1 Trilok Chand Jain was categorically stated in his cross-examination that the report was not sent by him, hence he is unable to submit the A.D. of report, Firstly, the copy of the report did not reach the accused-respondents in time, and secondly, the prosecution has been instituted against the accused respondents after an inordinate unexplained delay of approximately three years and thirdly, non compliance of mandatory provisions of Section 13(2) of Act of 1954 has caused serious prejudice to the accused respondents. Since the accused- respondents have been deprived of their valuable right of getting the sample reanalyzed by the Central Food Laboratory, the learned trial Court having rightly and properly appreciated the prosecution evidence and the relevant material, is found to have arrived at just and proper conclusion of not holding the accused respondents guilty and acquitting them of the alleged charge. The impugned judgment of the lower Court is found to be just, cogent and resting on sound reasoning, with which I fully concur, and to my firm view, it does not call for any interference. (12). Having found the State Appeal devoid of merit and the arguments of learned Public Prosecutor devoid of force, the State Appeal deserves to be dismissed. (13). In view of the above, the State Appeal stands dismissed.