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2011 DIGILAW 1603 (RAJ)

Laxmi Narayan v. State of Rajasthan

2011-08-04

SANDEEP MEHTA

body2011
Hon'ble MEHTA, J.—Heard. 2. The petitioner having been convicted for the offence under Section 7/16 of the Food Adulteration Act had filed an appeal in the Court of Sessions Judge, Rajsamand. The appeal was transferred to Additional Sessions Judge (Fast Track), Rajsamand for hearing. By order dated 19.6.2006, the Additional Sessions Judge whilst allowing the appeal filed by the accused on a technical ground i.e. report of the Central Food Laboratory was not put to accused in his statements under Section 313 Cr.P.C., proceeded to remand the matter back to the trial Court for re-examination of the accused under Section 313 Cr.P.C. in regards to the report of Central Food Laboratory and then for the decision of the case again. Assailing the said order, the accused has approached this Court by way f this revision. 3. Assailing the order dated 19.6.2006, counsel for the petitioner has submitted that the non-putting the report of central Food Laboratory to the accused clearly amounted to an illegality in trial and the learned Judge had no jurisdiction to permit the said lacuna to be filled in by remanding the matter to the trial Judge. It is submitted that the learned appellate Judge should have acquitted the accused instead of remanding the matter to the trial Court. 4. Per contra, learned Public Prosecutor has supported the judgment of the appellate Judge and has submitted that the appellate Judge was perfectly justified in remanding the matter back. It has been submitted that the accused could not be given the benefit of technical lapse occasioned by non-putting of the report of the Central Food Laboratory in the statements under Section 313 Cr.P.C. 5. I have given my thoughtful consideration to the arguments advanced at the bar and also perused the impugned order. 6. I am of the view that the order of the appellate judge is patently illegal,. the second sample of the food article was sent to the Central Food Laboratory at the instance of the accused and as such, he could not raise the plea regarding non-putting of the contents to him having caused him prejudice. Since the report was received on his own application and since the report of the Central Food Laboratory superseded the report given by the public analyst, the same could be relied upon even without putting a question in regard thereto under Section 313 Cr.P.C. 7. Since the report was received on his own application and since the report of the Central Food Laboratory superseded the report given by the public analyst, the same could be relied upon even without putting a question in regard thereto under Section 313 Cr.P.C. 7. A similar question arose before the Hon'ble Apex Court in the case of State (Delhi Administration) vs. Dharampal reported in AIR 2001 SC 2924 = RLW 2002(1) SC 83 wherein the Hon'ble Apex Court observed as under : "The same view has been reiterated by this Court in the case of Basavraj R. Patil vs. State of Karnataka reported in (2000) 8 SCC 740 . Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate Court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him. This being the law, in our view, both the Sessions Judge and the High Court were wrong in concluding that the omission to put the contents of the certificate of the Director, Central Food Laboratory, could only result in the accused being acquitted. The accused had to show that some prejudice was caused to him by the report not being put to him. Even otherwise, it was the duty of the Sessions Judge and/or the High Court, if they found that some vital circumstance had not been put to the accused, to put those questions to the counsel for the accused and get the answers of the accused. If the accused could not give any plausible or reasonable explanation it would have to be assumed that there was no explanation. Both the Sessions Judge and the High Court have overlooked this position of law and failed to perform their duties and thereby wrongly acquitted the accused." 8. If the accused could not give any plausible or reasonable explanation it would have to be assumed that there was no explanation. Both the Sessions Judge and the High Court have overlooked this position of law and failed to perform their duties and thereby wrongly acquitted the accused." 8. Thus, this Court is of the opinion that once the copy of the report of the Central Food Laboratory has been supplied to the accused, the same has to be read against him irrespective of the fact whether a question in relation thereto has been put to him under Section 313 Cr.P.C. or not. The important factor for consideration in the matter is that the report has been received on the application of the accused for sending the second sample for analysis to the Central Laboratory and thus, the accused would be bound by the contents of the report even if the same was not put to him. 9. Despite this, if the appellate Court comes to a conclusion that the copy of the Central Food Laboratory's report has not been given to the accused at the trial, then a copy thereof shall be provided to the accused or his counsel and an explanation in relation thereto may be sought by the appellate Court itself. 10. In view of the aforesaid discussion, this revision petition succeeds and is allowed. The order dated 19.6.2006 passed by the Additional Sessions Judge (Fast Track), Rajsamand in Appeal No. 34/2006 is set aside and the matter is remanded back to the appellate Court for deciding the appeal of the accused petitioner on merits.