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Gujarat High Court · body

2009 DIGILAW 733 (GUJ)

NESTLE INDIA LIMITED v. STATE OF GUJARAT

2009-11-20

J.C.UPADHYAYA

body2009
JUDGMENT 1. The challenge in this revision petition is to the order passed by the learned Judicial Magistrate First Class, Gandevi on 29.9.2001 in Criminal Misc. Application No.1/2001, whereby the learned Judicial Magistrate First Class ordered to condone the delay in filing Criminal Case No.4193/1998 and directed that the aforesaid criminal case be restored to the file of his Court and to proceed further in accordance with the law. 2. The facts giving rise to this Criminal Revision Application are that the respondent No.2-FoodInspector visited the shop of the original accused No.1-Manharbhai Ratilal Tailor and collected sample from a packed tomato ketchup bottle. The sample came to be collected on 11.2.1993. It was further revealed that the vendor original accused No.1-Manaharbhai Ratilal Tailor had purchased the packed tomato ketchup bottle from accused No.6-M/s.Anupam Sales Corporation and accused Nos.2 to 5 were its partners. It is further revealed that the tomato ketchup was manufactured by petitioner No.1 herein-M/s. Nestle India Limited i.e. original accused No.7. The sample collected from the bottle was sent for analysis and by report dated19.3.1993, the public analyst reported that the sample did not conform to the standards laid down under the Prevention of Food Adulteration Rules (“Rules” for short). Thereafter, the complainant-Food Inspector applied for sanction as contemplated under Section 20 of the Prevention of Food Adulteration Act, 1954 (“Act” for short)to the competent authority and the competent authority accorded the sanction to launch prosecution on 10.9.1998. On that basis, the Food Inspector filed criminal complaint in the Court of the learned Judicial Magistrate First Class, Gandevi on 18.11.1998, which was registered as Criminal Case No.4193/1998. 2.1 It further transpires that as soon as the accused appeared before the Trial Court an application was moved by them on 26.5.1999 alleging that the complaint filed by the Food Inspector was outright time barred looking to the provisions contained under Section 468 of the Code of Criminal Procedure (“Cr.P.C.” for short) and that the Trial Court should not have taken cognizance of the offence. The said application was resisted by the Food Inspector by filing a reply. The said application was resisted by the Food Inspector by filing a reply. After hearing both the sides, the learned Judicial Magistrate First Class, Gandevi, by his order dated 4.12.1999 allowed the application and discharged all eight accused persons holding that the criminal complaint filed by the Food Inspector against the accused for the commission of offence punishable under Section 16 read with Section 7 of the Act was time barred as contemplated under Section 468(2) of the Cr.P.C. 2.2 The said order came to be challenged by the complainant-Food Inspector before this Court in Criminal Revision Application No.37/2000. Vide order dated 22.11.2000, this Court observed that the said criminal petition was devoid of merit sand the same was required to be dismissed. However, since it was submitted on behalf of the complainant's side that it may be given an opportunity to move the Trial Court for extension of period of limitation under Section 473 of the Cr.P.C., an opportunity was granted to the complainant's side to move the Trial Court under Section 473 of the Cr.P.C. 2.3 Since Criminal Case No.4193/1998 came to be disposed of by the Trial Court vide order dated4.12.1999 and all the accused came to be discharged, the complainant preferred Criminal Misc. Application No.1/2001 before the Trial Court on 22.1.2001 narrating the grounds for condonation of delay, under Section 473 of the Code as permitted by this Court and as stated above, the said application came to be allowed by the Trial Court by impugned order dated 29.9.2001. This has given rise to this Criminal Revision Application. 3. I have heard the arguments of learned Advocate Mr. Jani for the petitioner and learned Additional Public Prosecutor Mr. Kodekar for the respondent-State. 4. Learned Advocate Mr. Jani for the petitioner submitted that since the sample was collected on11.2.1993 and the complaint was filed on 18.11.1998, after about the lapse of five year sand nine months, the complaint was outright time barred and as contemplated under Section 468(2)(C), the Trial Court should not have taken cognizance of the offence. It is submitted that the maximum penalty prescribed under Section 16of the Act is imprisonment for three years. The complaint, therefore, should have been filed within a period of three years from 11.2.1993,the day on which the sample was taken. 4.1 Learned Advocate Mr. It is submitted that the maximum penalty prescribed under Section 16of the Act is imprisonment for three years. The complaint, therefore, should have been filed within a period of three years from 11.2.1993,the day on which the sample was taken. 4.1 Learned Advocate Mr. Jani for the petitioner further submitted that in the initial order dated 4.12.1999, the Trial Court had rightly discharged the accused and rightly held the criminal prosecution to be time barred. Even this Court, in order dated 22.11.2000 in Criminal Revision Application No.37/2000, did not disturb the finding arrived at by the Trial Court and on the contrary, observed that the aforesaid Criminal Revision Application was devoid of any merits and the same was required to be dismissed. It is submitted that however the complainant's side was given an opportunity to apply under Section 473of the Cr.P.C. for condonation of delay. 4.2 It is further submitted that if the grounds raised by the complainant-Food Inspector in the delay condonation application before the Trial Court are considered it would clearly appear that those grounds cannot be said to be sufficient for condonation of delay. Considering the grounds raised in the delay condonation application, Food Inspector stated that from dated 28.5.1993 till31.5.1996, he on and often for eight times requested the accused No.7 manufacturing company to provide information regarding the nominee and the constitution of the company, but failed in said attempt. Ultimately about the identification of accused No.8 he could get the information from the office of Local Health Authority, and thereafter, he could move the competent authority for sanction and thereafter, he could file the criminal complaint. That these grounds are totally baseless to explain the delay because the bare reading of the criminal complaint filed by the complainant-Food Inspector would reveal that on the day on which the sample was taken i.e. on 11.2.1993, the Food Inspector had information regarding the distribution company i.e. accused No.6 and its partners viz. accused Nos.2 to 5 and the manufacturing company viz. accused No.7. accused Nos.2 to 5 and the manufacturing company viz. accused No.7. He could have filed the criminal complaint against the seven accused persons within the prescribed period of limitation and during the course of trial by receiving the information regarding the accused No.8, he could have requested the Trial Court to arraign accused No.8 in this case and as provided under Section 20(A) of the Act, the Court, during the course of trial, could have impleaded the accused No.8 in this case. It is, therefore submitted that in sum and substance, there was no need for the Food Inspector to wait for filing of the complaint for the period of about six years just to get information regarding the accused No.8. 4.3 It is further submitted that it is true that as per Section 470(3) of the Cr.P.C., when a sanction is required for the purpose of instituting criminal prosecution, then the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded in computing the period of limitation. It is submitted that in the instant case, though the sample was taken on 11.2.1993,the Food Inspector applied for sanction on 27.8.1998 which amounts to delay of about five years and six months; that the sanction was accorded on 10.9.1998 i.e. within about 15 days from the date of demanding the sanction; that thus only the period of 15 days can be excluded as contemplated under sub-section 3 of Section470 of the Cr.P.C. 4.4 It is further submitted that because of unreasonable delay caused by the complainant in filing the criminal complaint before the Trial Court, the accused have sustained irreparable loss as their valuable right of reanalysis as contemplated under Section 13(2) of the Act has been infringed. 5. During the course of arguments, learned Advocate Mr. Jani relied upon the case of Municipal Corporation of Delhi Vs. Ghisa Ram reported in AIR 1967 Supreme Court 970 and the case of State of Gujarat Vs. Divyesh Padmakant Shah and others reported in 2007(2) GCD 950 . Reliance was also placed upon the case of State of Punjab Vs. Sarwan Singh reported in AIR 1981 Supreme Court1054 and ultimately, it was submitted that the revision petition be allowed. 6. Per contra, learned Additional Public Prosecutor Mr. Divyesh Padmakant Shah and others reported in 2007(2) GCD 950 . Reliance was also placed upon the case of State of Punjab Vs. Sarwan Singh reported in AIR 1981 Supreme Court1054 and ultimately, it was submitted that the revision petition be allowed. 6. Per contra, learned Additional Public Prosecutor Mr. Kodekar for the State submitted that as a matter of fact, there was no intentional delay on the part of the Food Inspector in instituting the criminal case as emerged from the delay condonation application filed by the Food Inspector before the Trial Court. From 28.5.1993till 31.5.1996, practically for three years on and often the Food Inspector requested by different letters to the accused No.7-Manufacturing Company to provide its constitution and to provide the information regarding the nominee as contemplated under Section 17(2) of the Act. Despite this, the accused No.7-Manufacturing Company did not respond to any of the letters of the Food Inspector and ultimately the Food Inspector had to collect required in formation from the office of Local Health Authority and therefore, the delay was caused, and the delay is satisfactory explained by the Food Inspector. 6.1 Learned Additional Public Prosecutor Mr. Kodekar further submitted that in this revision application the moot question, which is required to be decided is as to whether the delay caused by the Food Inspector was intentional or that it was essential. It is submitted that considering above background, the delay cannot be said to be intentional, but it was essential. 6.2 However, regarding the right available to the accused under Section 13(2) of the Act is concerned, it was submitted that there cannot be any dispute that as soon as the complaint is filed in the Trial Court, the accused is required to be served with the notice along with the report of the public analyst and within ten days from the receipt of the said notice, the accused has right of reanalysis of the sample and that this is a statutory right and if the food article is perishable in nature, then because of the delay, the sample may not be found fit for reanalysis. However, it is submitted that this aspect can be appropriately dealt with by the Trial Court, if the Trial Court is directed to proceed further with the matter. 6.3 Ultimately, it is submitted that revision petition may be dismissed. 7. However, it is submitted that this aspect can be appropriately dealt with by the Trial Court, if the Trial Court is directed to proceed further with the matter. 6.3 Ultimately, it is submitted that revision petition may be dismissed. 7. Examining the record available at this stage in the context of the submission made by the rival sides, following undisputed events are required to be considered ; (1) The sample of tomato ketchup from the packed and sealed bottle came to be collected by the Food Inspector on 11.2.1993. (2) The Food Inspector received the report of the public analyst on dated 11.3.1993 stating that the sample did not conform to the standards laid down under the Rules. (3) The Food Inspector applied to the competent authority for obtaining the sanction as contemplated under Section 20 of the Act on dated27.8.1998. (4) The Food Inspector obtained the sanction on dated 10.9.1998. (5) The complainant-Food Inspector filed criminal case against all the eight accused persons in the Court of Judicial Magistrate First Class, Gandevi on 18.11.1998. (6) The accused as soon as they appeared before the learned Trial Court filed an application for discharge on dated 26.5.1999 alleging that the complaint was outright time barred. (7) The said application of discharge came to be allowed by the Trial Court on 14.12.1999 and all the accused came to be discharged by holding that the complaint was time barred. (8) The complainant's side challenged the said order before this Court by preferring Criminal Revision Application No.37/2000 and vide order dated 27.11.2000, though the Criminal Revision Application came to be dismissed, but a right was given to the complainant's side to apply to the Trial Court for condonation of delay as contemplated under Section 473 of the Cr.P.C. (9) The complainant, thereafter, on 22.1.2001,filed delay condonation application containing the grounds for delay. (10) The Trial Court, by impugned order dated29.9.2001, allowed the said delay condonation application and the criminal case was ordered to be restored and was ordered to be proceeded further in accordance with the law. 8. The said impugned order is challenged by the petitioners, who were original accused Nos.7 and8 in this Court by preferring the present Revision Application. 9. 8. The said impugned order is challenged by the petitioners, who were original accused Nos.7 and8 in this Court by preferring the present Revision Application. 9. Thus considering the above referred undisputed facts, it is very clear that the day on which the complaint was filed in context with the date of collecting the sample, the complaint was delayed by five years and nine months. The maximum punishment prescribed under Section 16 of the Act is imprisonment for three years. Therefore, as provided under sub-section 2 of Section 468 of the Cr.P.C., the complaint should have been filed within the period of three years from 11.2.1993.However, the complaint was filed on 18.11.1998. 10. It is further clear that in the instant case, for launching the prosecution, a statutory sanction was required as contemplated under Section 20 of the Act. The Food Inspector applied for sanction on 27.8.1998, though the sample was collected on11.2.1993 and that the Food Inspector came to know by report of the public analyst dated 19.3.1993 that the sample was adulterated. As provided under sub-section 3 of Section 470 of the Cr.P.C. toather with the explanation attached to it, it is clear that the date on which the application was made for obtaining the sanction and the date of receipt of the sanction shall be excluded in computing the period of limitation. In the instant case, it would be about 15 days as the application for obtaining sanction was made on 27.8.1998 and the same was accorded on 10.9.1998. Thus, even if, the period of 15 days are excluded from the delay of five years and nine months, it would not lead us to anywhere. The delay would still remain. 11. However, I fully agree with the submission made by the learned Additional Public Prosecutor Mr. Kodekar that the provisions contained under Section 5 of the Limitation Act for condonation of delay and the provisions contained under Section 473 of the Cr.P.C. for condonation of delay stand on different footing. I also agreewith the submission made by the learned Additional Public Prosecutor Mr. Kodekar that in this revision application, the moot question, which is required to be decided is as to whether the delay on the part of the Food Inspector was intentional or essential. I also agreewith the submission made by the learned Additional Public Prosecutor Mr. Kodekar that in this revision application, the moot question, which is required to be decided is as to whether the delay on the part of the Food Inspector was intentional or essential. However, in that background, it is necessary to consider relevant observation made by Hon'ble the Apex Court inpara-3 in the case of the State of Punjab Vs. Sarwan Singh (supra) ; “The object of the Criminal Procedure Code in putting a bar of limitation on prosecution 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 prosecutions long after the date of the offence.” 12. Now, in the above background, in the instant case, as per the say of the Food Inspector, the delay occurred because he could not get details regarding the accused No.8 in time. Now, in that context, if the complaint lodged by the Food Inspector before Trial Court is considered, it clearly transpires that the day on which the sample was collected by him, he came to know about the name of the vendor accused No.1 and the name of the supplier, the accused no.6 and its partners, the accused Nos.2 to 5 as well as the manufacturer the accused No.7. On dated 19.3.1993, the Food Inspector was within the knowledge that the sample collected by him from accused No.1 was found to be adulterated by public analyst. It appears that instead of wasting time for collecting the information about the accused No.8 the nominee of the accused No.7-Company, the Food Inspector could have filed criminal complaint against seven accused persons before the Trial Court within the prescribed period of limitation. During the pendency of the criminal prosecution, the Food Inspector could have undertaken the exercise of finding out the name of the nominee of the accused No.7-Companyor after the representative of accused No.7-Company appeared before the Trial Court, the Trial Court could have gathered information about the nominee of the accused No.7-Company as contemplated under Section 17(2) of the Act and as provided under Section 20(A) of the Act, the powers are vested in the Trial Court to implead manufacturer at any time during the course of trial. In sum and substance, what I want to stress is that the delay caused by the Food Inspector was not essential as this is not a case wherein he could not have filed criminal complaint against any accused without obtaining information, which the Food Inspector required. The delay could have been very were avoided. It cannot be said to be an unavoidable delay. 13. This aspect is required to be considered from one more dimension. Section 13(2) of the Act confers right upon the accused to apply for reanalysis of the sample. He can exercise the right once the prosecution is instituted and he receives the notice along with the copy of the report of the public analyst and within ten days from the date of receipt of such notice, he can apply to the Court for reanalysis. In the case of Municipal Corporation of Delhi Vs. Ghisa Ram (supra) inpara-7, Hon'ble the Apex Court observes as under; “(7) It appears to us that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analyzed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that 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 analyzed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. 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 analyzed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that 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.” 13.1 Thus, considering the ratio laid down by Hon'ble the Apex Court in the aforesaid case, it is clearly laid down that in case of deliberate conduct of the prosecution agency, if vendor is not in a position to exercise right of reanalysis or because of the delay, the sample losses its potentiality for analysis, the defence of the accused is gravely jeopardized. 13.2 Almost, identical was the situation in the case of State of Gujarat Vs. Divyesh Padmakant Shah and other (supra). In the said case, there was delay in filing acquittal appeal under Section 378 of the Cr.P.C., since the Trial Court had recorded acquittal of the accused from the charge of an offence punishable under Section 16read with Section 7 of the Act. In that case, the sample of food article was collected on 29.10.1993 and the complaint came to be filed on30.5.2002 i.e. after nine years. In the aforesaid background, this Court in para-8 observed that 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 Act of having the sample analyzed in the Central Food Laboratory. In para-11 of the judgment, this Court has further observed that the long delay of about nine years in granting the sanction cannot be overlooked and the State cannot push under the carpet, issue of granting sanction for long period of nine years and then pray for exclusion of the said period under the provisions of Section 470 of the Cr.P.C. Ultimately, the delay condonation application came to be dismissed. 14. 14. In the instant case, as stated above, when the sample was collected on 11.2.1993 and when the complaint was filed on 18.11.1998, then considering the nature of food article i.e. tomato ketchup, the right of the accused conferred under Section 13(2) of the Act can be said to have been adversely jeopardized . 15. Therefore, in sum and substance and in light of the entire above discussion, I am of the opinion that the revision petition merits acceptance. Impugned order passed by the learned Judicial Magistrate First Class, Gandevi on 29.9.2001 condoning the delay and restoring the criminal case deserves to be set aside and the initial order passed by the Trial Court below Application Exh:12 in Criminal Case No.4193/1998 dated 4.12.1999 deserves to be restored. 16. For the foregoing reasons, the Criminal Revision Application is allowed and the impugned order dated 29.9.2001 passed by the learned Judicial Magistrate First Class, Gandevi in Criminal Misc. Application No.1/2001 is set aside and consequently the earlier order dated 4.12.1999 passed by the learned Judicial Magistrate First Class, Gandevi below Application Exh:12 in Criminal Case No.4193/1998 is hereby restored. Rules is made absolute.