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2012 DIGILAW 1619 (RAJ)

Bagtawar Mal v. State of Rajasthan

2012-07-24

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—Heard learned counsel for the parties. 2. The instant misc. petition has been preferred by the petitioner seeking quashing of the Criminal Complaint Case No.253/2001 (State vs. Bagtawar Mal) pending in the Court of the learned Additional Chief Judicial Magistrate, Sojat for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short “the Act of 1954”). 3. Succinctly stated the facts of the case are that the Food Inspector inspected the shop of the petitioner on 22.9.2000 and collected the sample of iodised salt under the brand name of Srinath Salt manufactured by Ranga Salt Works, Station Road, Pokaran. The purchase bill dated 6.8.2000 was submitted by the petitioner right at the time of drawing of the sample. The salt sample was forwarded to the public analyst from where the report dated 11.10.2000 was received as per which the sample of iodised salt was found to be adulterated as not conforming to the standards laid down under Table 8.15-01 of the Appendix-B of the P.F. Rules. The report of the public analyst is to the effect that the salt sample was deficient as regards the iodine content. The Food Inspector ultimately filed a complaint against the petitioner and other accused persons on 22.9.2001 in the Court of A.C.J.M., Sojat for the offence under Section 7/16 of the Act of 1954. The petitioner upon receiving the summons appeared in the trial Court on 12.2.2002 and on the very same day, he submitted an application under Section 13(2) of the Act of 1954 praying that the second sample of the salt collected by the Food Inspector be sent to the Central Food Laboratory for analysis as the petitioner was not agreeable with the report submitted by the public analyst. Surprisingly enough, despite the trial court having taken note of the application filed by the petitioner, chose to continue with the proceedings without passing any order thereon. When no action was forthcoming on the application moved by the petitioner, the petitioner again reminded the trial court regarding the application filed by him and the learned trial court by order dated 18.6.2010 proceeded to hold that the application under Section 13(2) of the Act of 1954 was not moved within the stipulated period of ten days and accordingly, rejected the same. The petitioner has now approached this Court by way of the instant misc. The petitioner has now approached this Court by way of the instant misc. petition seeking quashing of the entire proceedings of the complaint pending before the trial court. 4. Learned counsel for the petitioner submitted that the approach of the learned trial court in rejecting the application filed by the petitioner under Section 13(2) of the Act of 1954 is absolutely illegal and abuse of process of Court. It is submitted that the petitioner has an unfettered right to have the second sample of food article examined by the Central Food Laboratory. It is submitted that the petitioner immediately upon receiving the summons of the complaint, appeared before the trial court and filed an application under Section 13(2) of the Act of 1954 praying that the second sample be sent to the Central Food Laboratory for analysis but the Court despite noticing the application slept over it for a period of more than eight years and ultimately, in an absolutely illegal fashion, the application has been rejected by order dated 18.6.2010 thereby depriving the petitioner of his valuable right to have the second sample of food article examined by the Central Food Laboratory. Placing reliance on a decision of the Division Bench of this Court in the case of Onkarlal vs. State, reported in 2004(2) RLW 934, learned counsel for the petitioner submitted that Section 13(2) of the Act of 1954 provides an unfettered right to the accused to have the second sample examined by the Central Food Laboratory and the restriction of ten days mentioned in Section 13(2) of the Act of 1954 is not a mandatory restriction. It is submitted that the Division Bench has held that the right which accrues to the accused under Section 13(2) is in nature of a fundamental right available to every accused to defend himself as guaranteed under Articles 20 and 21 of the Constitution of India. It is, therefore, submitted that the learned trial court by the act of denying the petitioner his right to challenge the report of public analyst has virtually violated the petitioner's fundamental right and thus, the proceedings against the petitioner in the trial court are liable to be quashed. It is, therefore, submitted that the learned trial court by the act of denying the petitioner his right to challenge the report of public analyst has virtually violated the petitioner's fundamental right and thus, the proceedings against the petitioner in the trial court are liable to be quashed. He further submitted that as the sample was drawn way back in the year 2000, now after a lapse of nearly 12 years, no useful purpose would be served by sending the second sample to the Central Food Laboratory for analysis. He, therefore, urged that the proceedings of the complaint deserve to be quashed on the ground of unreasonable delay as well. 5. Learned PP though has vehemently opposed the arguments advanced on behalf of the petitioner, he too is not in a position to justify the inaction taken on the petitioner's application by the learned trial court. 6. Upon a consideration of the arguments advanced at bar and after going through the material available on the record, this Court has no hesitation in holding that the trial court in this case has acted in an absolutely highhanded fashion in refusing the application filed by the petitioner under Section 13(2) of the Act of 1954. Firstly, the petitioner was not at all responsible for the delay which has occasioned in filing of the application. The complaint was filed on 22.2.2001. Thereafter, the Court took cognizance and summoned the accused. The accused was served for the first time for the date 12.2.2012. He appeared before the court on that very day and submitted his bail bonds and also moved the application under Section 13(2) of the Act of 1954 requesting the second sample of the food article to be sent to the Central Food Laboratory for examination. The trial court chose to take no action on the application thus filed by the petitioner for a period of nearly 8 years and thereafter also, the application filed by the petitioner has been rejected on an absolutely conjectural ground. The trial court for no good reasons has held that the petitioner was responsible for the delay in moving the application under Section 13(2) of the Act of 1954. The fact is that the petitioner immediately moved the trial court by way of application under Section 13(2) of the Act of 1954 right upon appearing in the Court after service of the bailable warrants. The fact is that the petitioner immediately moved the trial court by way of application under Section 13(2) of the Act of 1954 right upon appearing in the Court after service of the bailable warrants. Therefore, obviously, there was no delay on the part of the petitioner in filing the application under Section 13(2) of the Act of 1954. 7. That apart, the Division Bench of this Court in the case of Onkarlal (supra) while dealing with Section 13 (2) of the Act of 1954 held that the limitation of ten days which is prescribed in Section 13(2) of the Act of 1954 is directory and not mandatory and there cannot be any difficulty in sending the second sample of the food article to the Central Food Laboratory even if the period of ten days had elapsed. The Division Bench has held that the denial or deprivation of the right under Section 13(2) of the Act rather amounts to violation of the fundamental right available to the accused to defend himself. 8. The Hon'ble Apex Court in the case of T. Nagappa vs. Y.R. Muralidhar reported in AIR 2008 SC 2010 has also held that the right to defend himself is a part of human and fundamental right as enshrined under Article 21 of the Constitution of India and if the accused is deprived of this right by any means, then it would amount to violation of fundamental right of the accused to defend himself. The Hon'ble Apex Court held as under :- “The accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. A right to defend oneself and for that purpose to adduce evidence as recognised by Parliament in terms of Sub-Section (2) of Section 243 Cr.P.C.” 9. In view of the aforesaid findings, now the question which would arise before this Court is as to whether the sample should now be directed to be sent to the Central Food Laboratory for analysis. 10. From the facts which have been mentioned above, it is apparent that the sample was drawn in the year 2000. The public analyst upon analysis in the year 2000 itself found the sample to be deficient in iodine content. Iodine is a sublime element which evaporates upon exposure. 10. From the facts which have been mentioned above, it is apparent that the sample was drawn in the year 2000. The public analyst upon analysis in the year 2000 itself found the sample to be deficient in iodine content. Iodine is a sublime element which evaporates upon exposure. Now after a lapse of nearly 12 years from the date the sample was drawn, directing that the sample be sent to the Central Food Laboratory for analysis would serve no purpose whatsoever. The sample of salt recovered from the petitioner cannot be expected to retain same qualitativeness after a lapse of 12 years. As has already been held above, the petitioner is not responsible for the delay which has been occasioned in this case. Therefore, any direction now to have the second sample of salt examined through the Central Food Laboratory would not at all be justified. By now the best before date of the salt sample can also be assumed to have lapsed. 11. That apart, the petitioner has already suffered a protracted trial for a period of ten years and till date, not a single witness has been examined at the trial. Therefore, further proceedings against the accused after this long period of time are nothing but an abuse of process of court as being violative of the petitioner's fundamental right to an expeditious trial. 12. Resultantly, the present misc. petition succeeds and all proceedings of the Criminal Case No.253/2001 pending against the petitioner in the Court of A.C.J.M., Sojat for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 are hereby quashed. Stay petition also stands disposed of.