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2011 DIGILAW 2015 (RAJ)

Ram Gopal v. State of Rajasthan

2011-09-19

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard counsel for the petitioners and the Public Prosecutor. Perused the impugned order. 2. The petitioner No. 1, who is facing trial for the offence under the Prevention of Food Adulteration Act in the Court of Additional Chief Judicial Magistrate Bhilwara, filed an application under Section 13(2) of the said Act in the year 1997 for sending the second sample of food article (edible oil) for analysis. The said application was allowed by the Court on 28.3.1997 on a cost of Rs. 1000/- to be paid by the petitioners. Thereafter the sample was never sent for analysis as the accused-petitioners did not deposit the amount of expenses for analysis by the Central Food Laboratory. When the matter was being finally argued before the learned Additional Chief Judicial Magistrate, a specific plea was raised on behalf of the petitioners-accused that their right to have the second sample analyed by the Central Food Laboratory under Section 13(2) of tho Prevention of Food Adulteration Act has been defeated on account of not-sending the second sample for analysis to the Laboratory. 3. At that stage, the Public Prosecutor appearing before the trial Court offered to deposit the amount of expenses for analysis because as per the provisions.of the Food Adulteration Act, the expenses of analysis of second sample are to be borne by the State Government. This application of the Public Prosecutor has been allowed and the learned trial Court, by the order dated 13.10.2006, instead of deciding the case, has directed to send the second sample ,for analysis to the Central Food Laboratory. It is in these circumstances that the present miscellaneous petition has been filed assailing the order dated 13.10.2006 for quashing of the proceedings going against the petitioners in the Court of the learned Additional Chief Judicial Magistrate, Bhilwara. 4. Counsel for the petitioner submits that the delay in analysis of second sample has virtually resulted in depriving the petitioner of his right to have second sample analysed by the Central Food Laboratory because by efflux of time the sample must have deteriorated and no purpose would be served in now sending the second sample for analysis. 4. Counsel for the petitioner submits that the delay in analysis of second sample has virtually resulted in depriving the petitioner of his right to have second sample analysed by the Central Food Laboratory because by efflux of time the sample must have deteriorated and no purpose would be served in now sending the second sample for analysis. As such, the impugned order dated 13.10.2008 and, all the proceedings against the petitioners are sought to be quashed on the ground that the delay, both in sending the second sample for analysis to the Central Food Laboratory and the delay in the trial of the case are violative of the right of the accused for a speedy trial as guaranteed by Article 21 of the Constitution of India. 5. Learned Public Prosecutor submits that it is for the Central Food Laboratory to examine the sample and if after analysis of the second sample of food the Central Food Laboratory finds that the sample is not fit for analysis, then the petitioner can raise an objection of his right having been prejudiced. 6. 1 have considered the submissions made by the counsel for the parties. 7. In the opinion of this Court, the accused has an absolute right to have the second sample of the food article analysed by the Central Food Laboratory under Section 13(2) of the Prevention of Food Act. Admittedly the petitioner exercised this right by filing an application before the trial Court way back in the year 1997. Thereafter it was the obligation of the Court to have sent the second sample for analysis forthwith. The non-sending of the second sample for analysis on the ground that the petitioner did not deposit the cost thereof, was absolutely unjustified. Because of this unjustifiable action of the Court below, the second sample could not be forwarded to the Central Food Laboratory for examination for a period of nine years from the date of filing of the application under Section 13(2) of the Act. 8. Accordingly, this Court is of the opinion that now no useful purpose would be served by permitting the second sample of the food article to be sent for analysis after a delay of nearly 16 years. The sample was taken in the year 1995 and the petitioner submitted the application on 28.3.1997 for sending the second sample for analysis. 8. Accordingly, this Court is of the opinion that now no useful purpose would be served by permitting the second sample of the food article to be sent for analysis after a delay of nearly 16 years. The sample was taken in the year 1995 and the petitioner submitted the application on 28.3.1997 for sending the second sample for analysis. By impugned order, the trial Court has ordered for sending the second sample for analysis 13.10.2006 at the stage of final hearing of the case. Now, by efflux of a period of 16 years of the seized food article (edible oil) can be presumed to have deteriorated and would be no longer fit for analysis. That apart, the accused had already suffered a protracted trial for eleven years when the second sample was directed to be sent for analysis by the Central Food Laboratory. The Hon'ble Supreme Court, in the case of Girishbhai Dahyabhai Shah v. C.C. Jani & Anr., (2009) 15 SCC 64 , has held that the delay in sending the second sample for analysis amounts to a denial of the right of the accused to challenge the report of the Public Analyst under Section 13(2) of the Prevention of Food Adulteration Act and delay if occasioned is valid ground for quashing the trial. In this case, the delay is not attributable to the accused because the accused had already exercised his right in the year 1997 and thereafter it was the fault either on the part of the Court or of the prosecution in not sending the second sample for analysis and the accused cannot be made to suffer for such inaction. The delay thus occasioned amounts to the denial of right of the accused for speedy trial guaranteed tinder Article 21 of the Constitution of India and is also violative of the right of the accused to challenge the report of the Public Analyst as provided Linder Section 13(2) of the Prevention of Food Adulteration Act.Thus, the miscellaneous petition is allowed. The impugned order dated 28.2.2006 and prosecution of the petitioner in Criminal Original Case No. 128/1996 pending in the Court of the Additional Chief Judicial Magistrate, Bhilwara for the offence under Section 7/16 of the Prevention of Food Adulteration Act is hereby quashed.The stay petition stands disposed of.Petition allowed. *******