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2012 DIGILAW 2056 (RAJ)

Nathmal Agrawal v. State of Rajasthan

2012-10-03

NARENDRA KUMAR JAIN II

body2012
JUDGMENT 1. - Heard learned counsel for the petitioner-accused as well as learned Public Prosecutor for the State. 2. The instant petition under Section 482 Criminal Procedure Code has been filed by the petitioner challenging order dated 25.11.2010 passed by learned Chief Judicial Magistrate, Makrana District-Nagaur in Criminal Case No. 316/2010 taking cognizance against the petitioner and Nemi Chand for offence under Section 7/16 of the Prevention of Food Adulteration Act (for short 'the PFA Act') and ordered for summoning the accused persons. 3. Brief facts of the case are that a sample of Soyabean oil (Kalash brand) contained in three sealed plastic bottles of 500ml each were alleged to have been taken by the Food Inspector from shop of the petitioner Nathmal Agrawal, located at Naya Bazar, Borawar, District Nagaur on 23.3.2010. A notice in Form No. VI was served on the petitioner Nathmal Agrawal by the Food Inspector for taking sample. The Food Inspector prepared a seizure memo and took sample at the spot and the samples were allegedly sent to Public Analyst, Public Health Laboratory at Jodhpur on 29.3.2010. 4. The Public Analyst, in the label description recorded that the sample packet was packed in February 2010 and was best before none months from the date of packing. Implying thereby, that the sample had expired in November 2010. The Public Analyst analyzed the food sample as prescribed standard specified under A17.13 and A17.15 of Appendix-B of the PFA Rules, 1955. The sample, while conforming to 14 tests, was allegedly found deficient in respect of "acid value", which was recorded as 0.67 as against prescribed standard of "not more than 0.5" and as such, the Public Analyst vide his report dated 19.4.2010, opined that the sample of refined Soybean oil LCH Code and Serial No. Q2291 is adulterated, as it does not confirm to prescribed standard as laid down under item A17.15 of Appendix-B of the PFA Rules, 1955. 5. The Food Inspector sought consent under Section 20 of the P.F.A. Act to institute prosecution in the Court of law for alleged adulteration of sample of Soybean oil. On 30.9.2010 the Local Health Authority, Nagaur granted consent to launch prosecution against the vendor and co-accused Nemichand Agrawal, Manager of the manufacturer company. The Food Inspector after more than eight months from the date of collecting the sample filed impugned complaint bearing No. 316/2010 before the Court below. 6. On 30.9.2010 the Local Health Authority, Nagaur granted consent to launch prosecution against the vendor and co-accused Nemichand Agrawal, Manager of the manufacturer company. The Food Inspector after more than eight months from the date of collecting the sample filed impugned complaint bearing No. 316/2010 before the Court below. 6. The samples had a shelf life of nine months, which expired in November 2010 and as such, valuable right of the petitioner enshrined under Section 13(2) of the PFA Act to get the sample analyzed from Central Food Laboratory has lost as the complaint itself was filed in November 2010, by which time the sample had expired. The petitioner became aware of the prosecution only when summons were received" by him, by which time the shelf life of the sample had expired long back. 7. Despite there being no averment, allegation or evidence on the record to connect the petitioner with the alleged sample, alleged manufacturer company not having been arrayed as accused and the valuable right of the petitioner under Section 13(2) of the P.F.A. Act having been lost, the learned Court below took cognizance of the alleged offence and issued summons to the accused persons. A bare perusal of the summoning order shows that the same was passed in cursory manner without application of mind. In the facts and circumstances, the complaint against the petitioner wherein he has been summoned to face trial is abuse of the process of law and the same is liable to be quashed. 8. Learned counsel for the petitioner submitted that the proceedings arising out of the impugned complaint filed before the Court below is contrary to law and facts on the record and is gross abuse of the process of law. The proceedings are in clear violation of the mandatory provision of law and the complaint as well as summoning and cognizance order are liable to be quashed and set aside. Admittedly, the shelf life of the alleged samples expired in November 2010 whereas the complaint itself was filed on 25.11.2010 and summons were received by. the petitioner thereafter. Thus, it is clear that the samples had expired much before the complaint was filed and summons received by the petitioner. The Local Health Authority did not forward the report of Public Analyst to the petitioner, as mandated under Section 13(2) of the PFA Act. the petitioner thereafter. Thus, it is clear that the samples had expired much before the complaint was filed and summons received by the petitioner. The Local Health Authority did not forward the report of Public Analyst to the petitioner, as mandated under Section 13(2) of the PFA Act. This has also caused grievance and grave prejudice to the accused-petitioner inasmuch as vital right of the accused-petitioner under Section 13(2) of the Act to get samples re-analyzed from Central Food Laboratory has lost. 9. He further submitted that it is settled law that when there is delay in launching prosecution, it deprives the accused's valuable right to challenge report of Public Analyst in the manner prescribed under Section 13(2) of the PFA Act and when this right is denied to the accused for no fault of his but wholly due to inordinate launching of the prosecution, no weight can be given to the report of Public Analyst and such delay is fatal to the prosecution. In the present case not only had the sample expired before launch of the prosecution but report of the Public Analyst was not forwarded to the petitioner. The summoning order is in ignorance of settled law laid down by Hon'ble Apex Court in the matter of Pepsi Foods v. Special Judicial Magistrate, (1998) 5 SCC 749 , that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law applicable thereto. In the instant case, above principles have not been adhered to by the Court below. So, summoning order and all consequential proceedings arising out of said complaint are illegal, without jurisdiction and dear cut abuse of the process of law and ought to be quashed. 10. He further argued that the proceedings against co-accused Nemi Chand Agrawal has been quashed by this Court in S.C. Criminal Misc. Petition No. 579 of 2011 decided on 14.11.2011 and petitioner's case is not at all distinguishable, rather it is squarely covered. So, the complaint and the proceedings arising therefrom deserves to be quashed and set aside. 11. 10. He further argued that the proceedings against co-accused Nemi Chand Agrawal has been quashed by this Court in S.C. Criminal Misc. Petition No. 579 of 2011 decided on 14.11.2011 and petitioner's case is not at all distinguishable, rather it is squarely covered. So, the complaint and the proceedings arising therefrom deserves to be quashed and set aside. 11. Learned Public Prosecutor, on the other hand, supported the order of learned Court below taking cognizance and summoning the accused-petitioner and submitted that the petitioner always had liberty to have the second sample of food article sent to Central Food Laboratory for analysis and if the Central Food Laboratory given report that the sample of food article was not fit for analysis then only the accused-petitioner can claim benefit of delay. 12. Having heard the arguments at the Bar and upon going through the material available on the record, it is evident that the complaint in this case was filed in November 2010. A bare perusal of Section 13 of the PFA Act goes to show that after receipt of the report of Public Analyst, under Section 13(1) the prosecution could be launched and copy of the report should be supplied to the accused. Sub-section (2) of Section 13 of the PFA Act provides that on receipt of report of Public Analyst, the accused can make an application to the Court to get the sample to be analysed from Central Food Laboratory. 13. In the present case, the samples have already expired in November 2010 whereas complaint was filed in November 2010 and thus, right which was provided by Section 13(2) of the PFA Act has been taken away from present petitioner. Looking to this legal position, continuation of the proceedings would be abuse of the process and it is liable to be quashed. 14. It is also admitted position that the co-accused Nemi Chand filed a Criminal Misc. Petition before this Court and this Court on 14.11.2011 passed order and the complaint against co-accused Nemi Chand has been quashed by a co-ordinate Bench of this Court. The case of present petitioner is not distinguishable with case of the co-accused Nemi Chand. 15. Hon'ble Apex Court and a Division Bench of this Court in Girish Bhai Daya Bhai Shah v. C.C. Jani, (2009) 15 SCC 64 ; Gupta Chemicals Pvt. Ltd. (M/s). and ors. The case of present petitioner is not distinguishable with case of the co-accused Nemi Chand. 15. Hon'ble Apex Court and a Division Bench of this Court in Girish Bhai Daya Bhai Shah v. C.C. Jani, (2009) 15 SCC 64 ; Gupta Chemicals Pvt. Ltd. (M/s). and ors. v. State and Ors., JT 2002 (Suppl) (1) SC 516 ; Medicaman Biotech Ltd. (M/s) and Ors. v. Rubina Bose, Drug Inspector, AIR 2008 SC 1939 : 2008 Cr.L.R. (SC) 322 ; Nebhraj v. State of Delhi, 1980 Cr.L.R. 649 ; Onkar Lal v. State, 2003(2) Cr.L.R. (Raj.) 1393 , provided explicit guidelines in this regard. 16. So, in this case, the accused-petitioner has been deprived of his legal right to challenge the report of the Public Analyst by having the second sample of food article analysed from Central Food Laboratory. 17. The conclusion of the above discussion is that prosecution of the petitioner in this case can not be permitted to be continued because of undue and unreasonable delay, in filing of complaint, resulting into deprivation of statutory right of petitioner to challenge report of the Public Analyst as provided under Section. 13(2) of the PFA Act. 18. Resultantly, this criminal misc. petition succeeds and the impugned order dated 25.11.2010 passed by learned Chief Judicial Magistrate, Makrana in Criminal Regular Case No. 316/2010, taking cognizance and summoning the accused-petitioner, is hereby quashed and set aside.The stay petition also accordingly stands disposed of.Petition allowed. *******