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Madhya Pradesh High Court · body

2009 DIGILAW 265 (MP)

Lalji Gupta v. State of M. P.

2009-02-25

INDRANI DATTA

body2009
Judgment Indrani Dutta, J. ( 1. ) Petitioners have filed this petition under Section 482 of Cr.P.C. to quash the proceedings with respect to criminal case No.1515 of 2005 pending in the Court of Judicial Magistrate. First Class, Gwalior. ( 2. ) As per petitioners, on 23.4.2005 complainant Food Inspector after notice took sample of Ghee from the petitioners firm Gupta Traders,Deedwana Oli,Lashker, Gwalior. That sample was sent to Public Analyst,Bhopal for analysis and as per report of Public Analyst,Bhopal, Annexure the sample was found adulterated. Then case was filed in the court and the notice was issued to the present petitioners under Section 13(2) of the Food Adulteration Act. Present applicant has filed one application under Section 13(2) of the Act for again analysing sample. Application was allowed and sample was sent to Central Food Laboratory. Report is annexure B. As per that report of Central Food Laboratory, the sample of ghee was not found adulterated. As per that report, sample was found mis branded. In this way, on the basis of that report, prima facie no case made out against present petitioners. Therefore, further pro- ceedings are to be quashed. ( 3. ) It is contended on behalf of the petitioners that as per report AnnexureB of Central Food Laboratory, Ghee was not found adulterated and sample was found misbranded. As per Rule 32 batch number and date of manufacturing was not mentioned on the sample contained. In notice form 6 which was issued on spot, the complainant has mentioned that the sampled ghee was manufactured in April, 2005 and batch number is 1. That form is Annexurec D. In the memorandum form 7 Annexure E,which was send to public analyst, the complainant has mentioned that the ghee was manufactured in April. 2005 and batch number is 1. As per report Annexure C, it is further specific that public analyst has also mentioned at the time of analysing the sampled ghee that batch number is 1 and date of manufacture is April, 2005. In panchnama Annexure F, same batch number and manufacturing date has been mentioned on spot. In this Way, it is apparent that in the sample taken on spot, manufacturing date of sample and batch number was mentioned. Therefore, opinion of CFL in which it is stated that the sample was mis branded is liable to be ignored. In panchnama Annexure F, same batch number and manufacturing date has been mentioned on spot. In this Way, it is apparent that in the sample taken on spot, manufacturing date of sample and batch number was mentioned. Therefore, opinion of CFL in which it is stated that the sample was mis branded is liable to be ignored. It is further contended that as per permission order Annexure G permission for prosecution is given with respect of adulteration only. Hence, proceedings are liable to be quashed. ( 4. ) Learned counsel for the petitioners drew this Courts attention to the citation of Gyan Chandra v. Nagar Swasthya Adhikari.1 In that case, it is held that conclusiveness of the evidence is only in respect of the facts stated in the certificate of Central Food Laboratory. At the same time, such facts in the certificate still remain opinion evidence and the conclusiveness of. the fact stated in the report is not to be taken as substitute to a judgment of conviction. The Courts are not bound to accept the opinion of the Director and in suitable circumstances, can reject it. ( 5. ) In Ratan Lal v. State of H.P.2 there was discrepancy between reports of Public Asnalyst and Director, Central Food Laboratories. Both reports differed widely as to non-fat solid contents of sampled milk then it was held that in that case that it was incumbent on the prosecution to have obtained fresh written consent before proceeding with the case in the court of law. ( 6. ) In State of Gujarat v. Chandrakant Gordhandas Sheth and others3 sample of pickle was taken and in public analyst report, it was found to be misbranded within the meaning of Section 2(ix((e) of the Act. Prosecution launched after obtaining sanction and second sample got analysed from CFL and report received that sample was mis branded as stipulated under Section 2(ix)(k) of the Act and was adulterated. The Magistrate acquitted accused holding that there was no prosecution for alleged adulteration or for selling misbranded article of food under Section 2(ix)(k) of the Act. In appeal, it is held that there is no perversity or patent illegality in finding of Magistrate. The Magistrate acquitted accused holding that there was no prosecution for alleged adulteration or for selling misbranded article of food under Section 2(ix)(k) of the Act. In appeal, it is held that there is no perversity or patent illegality in finding of Magistrate. It is further held that if as per Analysis Report of CFL,a distinct offence is found to have been committed, then also, proper sanction in prescribed period of limitation, requires to be obtained and if prosecution fails in obtaining such sanction, then advantage should go to accused. ( 7. ) On the basis of these citations, it is urged on behalf of the petitioners that as per report of Central Food Laboratory, a distinct offence is found to have been committed, therefore, proper sanction in prescribed period of limitation requires to be obtained. The complaint is filed only with respect to the adulteration of ghee and complaint is not filed on the basis that the ghee sample was found to be misbranded by Central Analysis Laboratory and proper sanction is not obtained for that distinct offence. Therefore, the proceedings are liable to be quashed. ( 8. ) It is contended on behalf of State and in their reply that report of Central Food Laboratory Annexure B is sent to Judicial Magistrate, First Class which is to be considered by learned Court. No order of cognizance is passed by learned Court and orders are to be passed by the Court. ( 9. ) Considering the above situation, this application is premature. All these grounds that report of Central Food Laboratories supersedes the report of Public Analyst and as per report of Central Food Laboratories, sample ghee is not found to be adulterated but found to be misbranded and the ground that for a distinct offence, no sanction has been obtained and hence cognizance for of fence cannot be taken. All these grounds can be raised before the trial court, as yet to no order of cognizance is passed by the trial Court. Learned trial court after considering all legal aspects of the case has to proceed as per rules. ( 10. ) With this direction this petition stands disposed of. Petition disposed of.