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2012 DIGILAW 1068 (RAJ)

Vijay Seth v. State of Rajasthan

2012-04-26

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioners seeking quashing of the proceedings of the Criminal Case No. 126/1999 registered on the basis of a complaint filed by the Food Inspector, Gangapur, Distt. Bhilwara pending in the Court of the learned Addl. Chief Judicial Magistrate, Gangapur, Distt. Bhilwara for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1958 (hereinafter referred to as the Act). 2. Briefly stated the fact necessary for the disposal of the misc, petition are that the petitioners are said to be the Director of a Company namely M/s Kesri Vanaspati Products Ltd., Jaipur. The company at the relevant time was involved in the manufacturing and distribution of refined edible oils. On 3.9.1998, the Food Inspector, Gangapur, Dlstt. Bhilwara is said to have taken sample of mustard oil (manufactured by the Company) from the premises of a firm Kothari & Sons, owned by Mr. Raman Kothari, accused No. 1 in the complaint. The sample thus taken was sent to the Public Analyst for analysis and the Public Analyst submitted a report dated 9.10.1998 to the Food Inspector, as per which, the sample was found to be adulterated as not conforming to the prescribed standards. The intimation regarding the report was sent to the Vendor as well as the Company. The Company intimated to the Food Inspector that the 'Company had already nominated one Shiv Kumar Sharma as its nominee under Section 17(2) of the Act for being responsible towards the day to day affairs of the Company. A copy of the nomination duly acknowledged by the Local Health Authority, Tonk on 17.4.1998 has been placed on the record. The Food Inspector, however, chose not to take cognizance of the nomination form submitted to him by the Company and proceeded to file a complaint in the Court of the learned Addl. Chief Judicial Magistrate, Gangapur, Distt. Bhilwara for the offence under Section 7/16 of the Act against the petitioners and certain other Director of the Company as well as the Vendor Mr. Raman Kothari, owner of the Firm Kothari and Sons. 3. On the complaint thus being filed, two separate applications were filed in the trial Court for sending the second sample of the food article to the Central Food Laboratory for analysis. Raman Kothari, owner of the Firm Kothari and Sons. 3. On the complaint thus being filed, two separate applications were filed in the trial Court for sending the second sample of the food article to the Central Food Laboratory for analysis. The application filed by the Vendor was taken note of in the order-sheet of the trial Court dated 15.4.1999. The noting on the application filed on behalf of the Company has been made on the application itself on 17.4.1999. It appears that subsequent to the applications being filed, the trial Court took no action on the same for a period of 12 years. The proceedings kept on lingering before the trial Court for almost 12 years, whereafter, suddenly on 28.11.2011, the trial Court woke up to the applications filed under Section 13(2) of the Act and an order has been passed by the trial Court on 28.11.2011 for sending the second sample of the edible oil to the Central Food Laboratory for analysis. 4. Now, the petitioners have approached this Court seeking quashing of the complaint filed against them on two grounds, firstly, that the Company had appointed a nominee for conducting its day to day affairs and, therefore, the prosecution of the Directors was not permissible and secondly regarding the inaction of the Court in sending the second sample of the food article for analysis to the Central Food Laboratory for a long period of 12 years as being a deprivation of the mandatory right of the accused under Section 13(2) of the Act and thereby vitiating the proceedings. 5. Thus, it is prayed to this Court that the proceedings in the trial Court pending against the petitioners deserve to be quashed as the inaction for a period of 12 years since the filing of application under Section 13(2) of the Act virtually amounts to deprivation of the right of the accused to challenge the report of the Public Analyst. It is submitted that the sample of the edible oil can be presumed to have lost its quality and is bound the be deteriorated after a lapse of nearly 13 years since the sample was taken. Learned counsel submits that no purpose would be served by having the second oil sample analyzed by the Central Food Laboratory after 13 years. It is submitted that the sample of the edible oil can be presumed to have lost its quality and is bound the be deteriorated after a lapse of nearly 13 years since the sample was taken. Learned counsel submits that no purpose would be served by having the second oil sample analyzed by the Central Food Laboratory after 13 years. It is further submitted that the Company had already made a valid nomination in this case as per Section 17(2) of the Act, thus, the prosecution of the Directors of the Company for the offence under Section 7/16 of the Act is absolutely uncalled for. 6. Per contra, learned Public Prosecutor has opposed the prayer made in the misc. petition and submits that the learned trial Court has now directed the second sample to be sent to the Central Food Laboratory for analysis and the accused-petitioner have stalled the examination of the second sample by the Central Food Laboratory by way of filing the instant misc. petition. Thus, it is submitted by the learned Public Prosecutor that the accused-petitioners are not entitled to claim any benefit by the delay occasioned in this case. It is submitted that if the Central Food Laboratory examines the sample and finds the same to be fit for analysis, then, the report of the Central Food Laboratory can very well be relied upon even now. Thus, the learned Public Prosecutor submits that the prosecution of the petitioners in this case cannot be subjected to challenge on this ground. He however does not dispute the fact that the prosecution of the Directors of a Company in view of the fact that a valid nomination had already been made by the Company cannot be permitted. 7. I have heard learned counsel for the parties, perused the record of the case and have given my thoughtful consideration to the arguments advanced at the bar. 8. The undisputed facts as available on the record of the case are that the sample of the oil was, taken by the Food Inspector in this case in the year 1998. Soon upon filing of the complaint, the Vendor as well as the Company filed two separate applications before the trial Court for sending the second sample to the Central Food Laboratory for analysis. Soon upon filing of the complaint, the Vendor as well as the Company filed two separate applications before the trial Court for sending the second sample to the Central Food Laboratory for analysis. The said applications were kept on the record lying unattended for a period of 12 years and it is only in the year 2011, the trial Court became conscious of the applications filed by the accused and has now directed the second sample to be sent for analysis to the Central Food Laboratory, 9. In the opinion of this Court, it can be presumed that the sample of the oil after a lapse of 12 years would not retain the same quality and standards which it was having at the time it was manufactured. Normally, any article of food has a particular shelf life and definitely without any doubt, a sample of oil can be presumed to loose its quality and suffer from deterioration after 12 years. 10. The Hon'ble Apex Court had an occasion to examine the similar situation in the case of Girishbhai Dahyabhai Shah v. C.C. Jani & Anr., reported in (2009) 15 SCC 64 . The Hon'ble Apex Court observed that delay in intimating the accused about the report of the Public Analyst virtually amounts to deprivation of the right of the accused to challenge the report of the Public Analyst by having the second sample sent to the Central Food Laboratory and such delay would be fatal to the prosecution. 11. That apart, as is undisputed from the material available on the record of the case, that the Company had already nominated one Shiv Kumar Sharma to be the person who was responsible for day to day affairs of the Company under Section 17(2) of the Act. In this view of the matter, if at all the prosecution was desirous to prosecute any person other than the nominee then it was imperative for the prosecution to have made a specific allegation regarding the responsibility of the Directors sought to be prosecuted in relation to the offences committed by the Company. 12. In the case of R. Banerjee & Ors. 12. In the case of R. Banerjee & Ors. v. H.D. Dubev & Ors., reported in AIR 1992 SC 1168 , the Hon'ble Apex Court has held that once there was a valid nomination on behalf of the Company under Section 17(2) of the Act, the Directors of the Company cannot be prosecuted unless there is a specific allegation that any person apart from the nominee was also responsible for the day to day affairs of the Company. 13. In the instant case, a perusal of the complaint reveals no such material or allegations. Resultantly, this Court is of the firm opinion that the prosecution of all the accused facing trial in this case amounts to an abuse of the process of the Court. Admittedly, the Vendor as well as the Company had filed applications before the trial Court within the period mandated by Section 13(2) of the Act requesting for the second sample of the food article to be sent to the Central Food Laboratory for analysis. For the reasons best known to the Court below, no action was taken on the said applications for a period of 12 years. By now, it can be assumed that the sample of the oil must have deteriorated. 14. Resultantly, the prosecution of the accused in this case amounts to an abuse of the process of the Court and also is in violation of the rights of the accused to a speedy trial and the right to defend themselves as guaranteed under Articles 21 & 22 (2) of the Constitution of India. 15. The Division Bench of this Court in the case of Onkar Lal v. State of Rajasthan, reported in RLW 2004(2) Raj. 934 has held that the right under Section 13(2) of the Act is a valuable right provided to the accused being a right to defend himself as guaranteed under Article 22(2) of the Constitution of India. Any violation of fundamental right guaranteed under Article 22(2) of the Constitution of India definitely vitiates the prosecution of the accused. 16. 934 has held that the right under Section 13(2) of the Act is a valuable right provided to the accused being a right to defend himself as guaranteed under Article 22(2) of the Constitution of India. Any violation of fundamental right guaranteed under Article 22(2) of the Constitution of India definitely vitiates the prosecution of the accused. 16. Resultantly, in view of the discussion made herein above, this Court is of the opinion that any further prosecution of the accused-petitioners as well as other accused in this case is nothing but an abuse of the process of the Court because the accused have been deprived of their right to challenge the report of the public analyst on account of the delay of 12 years occasioned in sending of the second sample of the food article for analysis to the Central Food Laboratory. 17. The upshot of the above discussion is that this misc. petition succeeds. The proceedings of the Criminal Case No. 126/1999 pending in the Court of the learned Addl. Chief Judicial Magistrate, Gangapur, Distt. Bhilwara are hereby quashed. Stay petition also stands disposed of. Record of the trial Court be sent back forthwith.Petition allowed. *******