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2013 DIGILAW 507 (GUJ)

USHODAYA ENTERPRIESES PVT LTD v. STATE OF GUJARAT

2013-08-19

A.G.URAIZEE

body2013
JUDGMENT : A.G. URAIZEE, J. 1. The applicants have invoked inherent jurisdiction of this Court under Section-482 of the Code of Criminal Procedure to quash and set aside Criminal Case No.1026 of 1994 pending on the file of the 5th Additional Senior Civil Judge and Judicial Magistrate, First Class, Bhuj, Kuchchh. 2. The facts leading to filing of the present application in narrow compass are as under:- 2.1 The respondent no.2-Food Inspector of Bhuj Municipality visited the business premises of the accused no.1 on 07.07.1992 where accused no.1-Mr. Bansilal Thakkar was found present as vendor and owner of the shop. The respondent no.2 introduced himself as Food Inspector in presence of the panchas and disclosed his intention to obtain samples of food articles from the shop of the applicants. Three sealed bottles of Priya Mango Pickles manufactured by Priya Company were placed on a wooden shelf for sale. These three bottles were purchased for the purpose of analysis and the seal of Nagarpalika was affixed on the mouth of each bottle in presence of the panchas. 2.2 Out of the three bottles, one was sent in a sealed cover to the Public Analyst, Rajkot for analysis on 08.07.1992 and remaining two bottles were sent to the Public Analyst for keeping in his custody. 2.3 The report of the Public Analyst dated 07.08.1992 was received on 03.09.1992 where it was opined that pickle contained in Priya Mango bottle was adulterated and was of inferior quality. The sanction to prosecute the applicants was sought and the Local Health Authority accorded permission on 25.02.1994 for filing complaint under Section-7(1)(5), Section-2(1-A)(A), Rule-5 and Section-16(1)(A) of the Prevention of Food Adulteration Act. Accordingly, the complaint was filed in the Court of learned Judicial Magistrate, Bhuj on 21.04.1994. 2.4. The applicants moved Discharge Application on 28.03.2007, which came to be rejected by the learned Chief Judicial Magistrate, Bhuj, Kuchchh on 18.04.2007 on the ground that the Discharge Application was premature as precharge evidence was not recorded. 2.5 The applicants challenged this order in the Sessions Court, Bhuj, Kuchchh by preferring Revision Application No.37 of 2007 which was also dismissed on 30.06.2008, confirming the view of the learned Chief Judicial Magistrate that the Discharge Application was premature as precharge evidence was not recorded. 2.5 The applicants challenged this order in the Sessions Court, Bhuj, Kuchchh by preferring Revision Application No.37 of 2007 which was also dismissed on 30.06.2008, confirming the view of the learned Chief Judicial Magistrate that the Discharge Application was premature as precharge evidence was not recorded. 2.6 Being aggrieved by the above orders, the applicants have preferred this application to quash and set aside the Criminal Case No.1026 of 1994 pending on the file of the 5th Additional Senior Civil Judge and Judicial Magistrate, First Class, Bhuj, Kuchchh. 3. Heard Ms. Sejal Sutariya, learned advocate for Ms. Minoo Shah for the applicants, Ms. Chetna Shah, learned APP for the respondent no.1-State and Mr. Nalin Thakker, learned advocate for the respondent no.2. 4. Ms. Sejal Sutariya, learned advocate appearing for Ms. Minoo Shah, learned advocate for the applicants has strongly contended that the right of the applicants available under Section-13(2) of the Act is infracted inasmuch as the authority concerned gave permission to file complaint on 25.02.1994 and thereafter, the complaint came to be lodged on 21.04.1994 much after expiry of shelf life of the pickle in the year April, 1993 and therefore, in her submission, no meaningful purpose would be served if the respondents are allowed to continue with the prosecution of the applicants. 5. On that other hand, Ms. Chetna Shah, learned APP for the respondent no.1-State and Mr. Nalin Thakker, learned advocate for the respondent no.2 could not dispute the material dates and facts that shelf life of the disputed pickle expired in the year April, 1993 before the complaint came to be filed against the applicants. 6. To better appreciate the controversy involved in this application, it is necessary to take note of the relevant dates which are as under:- Sr. Nos. Dates Particulars 1 07/07/92 Respondent no. 2 visited the shop of the applicants and collected the samples of Priya Mango Pickle for analysis. 2 08/07/92 A sample was sent to the Public Analyst for analysis. 3 03/09/92 Respondent no.2 received public analyst's report dated 07/08/1992. 4 25/02/1994 Sanction accorded to file complaint. 5 21/04/1994 Complain filed in the Court of learned Chief Judicial Magistrate, Bhuj, Kuchchh. 6 April, 1993 Shelf life of the pickle expired. 7. 2 08/07/92 A sample was sent to the Public Analyst for analysis. 3 03/09/92 Respondent no.2 received public analyst's report dated 07/08/1992. 4 25/02/1994 Sanction accorded to file complaint. 5 21/04/1994 Complain filed in the Court of learned Chief Judicial Magistrate, Bhuj, Kuchchh. 6 April, 1993 Shelf life of the pickle expired. 7. The Apex Court, in its two decisions, had occasion to examine the fact of expiry of shelf life of the allegedly adulterated product before it could be sent to the Public Analyst for second opinion in the cases of Northern Mineral Limited vs. Union of India and another reported in (2010)7 SCC 726 and Gupta Chemicals Private Limited and Ors. vs. State of Rajasthan and another reported in (2010)7 SCC 735. The Apex Court in the case of Northern Mineral Limited(supra), in Paragraphs-23 and 24, has held as under:- “23. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of the insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the insecticide Inspector or before the court where proceeding in respect of the samples is pending. Further, the court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused. 24. No proceeding was pending before any court when the accused was served with the Insecticide Analyst's Report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background the Insecticide Inspector was obliged to institute complaint forthwith and produce the sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. The appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to the Central Insecticides Laboratory.” 8. The Supreme Court has enunciated the position of law governing sample being examined by the Central Laboratory in the case of Gupta Chemicals Private Limited (Supra), in paragraphs-11, 12 and 13, as under:- “11. From a perusal of the aforequoted provisions, it is manifest that ordinarily in the absence of any material to the contrary, the report of the Insecticides Analyst will be accepted as final and conclusive of the material contained therewith. From a perusal of the aforequoted provisions, it is manifest that ordinarily in the absence of any material to the contrary, the report of the Insecticides Analyst will be accepted as final and conclusive of the material contained therewith. This is however, subject to the right of the accused to have the sample examined by the Central Insecticides Laboratory provided he communicates his intention for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statute is valuable for the defence, particularly, in a case where the allegations are that the material does not conform to the prescribed standard. 12. As noted earlier, in the present case, the appellants had intimated the Insecticides Inspector their intention to have the sample tested in the Central Insecticides Laboratory within the prescribed period of 28 days of the receipt of the copy of the State Analyst's Report, yet no step was taken by the Inspector either to send the sample to the Central Insecticides Laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the Magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the Inspector, it has not been possible for the appellants to have the sample examined by the Central Insecticides Laboratory and in the meantime, the shelf life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. 13. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of the court. The High Court was not right in dismissing the petition file under Section 482 CrPC.” 9. From the chronology of dates, it is manifestly clear that the respondent no.2-Food Inspector visited the business premises of the applicants on 07.07.1992 and purchased three bottles of Priya Mango Pickle for the purpose of analysis to find out whether the product was adulterated or not. From the chronology of dates, it is manifestly clear that the respondent no.2-Food Inspector visited the business premises of the applicants on 07.07.1992 and purchased three bottles of Priya Mango Pickle for the purpose of analysis to find out whether the product was adulterated or not. It appears that the respondent no.2 promptly sent the food article obtained from the shop of the applicants to the Public Analyst for analysis on the very next day i.e. on 08.07.1992 and the report of the Public Analyst was received on 03.09.1992 with opinion that the product was adulterated. Thereafter, it seems that the prosecuting agency went into hibernation for a long time and finally woke up from slumber to seek sanction from the Competent Authority to prosecute the applicants. The sanction came to be accorded on 25.02.1994 and thereafter, finally the complaint was lodged on 21.04.1994. In the meantime, the shelf life of the disputed product expired in the month of April, 1993. There is nothing forthcoming on the record to explain a big delay from 03.09.1992 when the report of the Public Analyst was received and sanction to file complaint on the basis of the report was accorded on 25.02.1994. Because of inaction on the part of the prosecuting agency, the applicants are deprived of their valuable right of getting the disputed product analyzed by the Central Laboratory and therefore, to allow the proceedings of Criminal Case against the present applicants to continue would be a futile exercise. The present application needs to be accepted. On the basis of the above decisions of the Supreme Court in cases of Northern Mineral Limited(supra), and Gupta Chemicals Private Limited(Supra), a similar view has also been taken by this Court in Criminal Misc. Application No.10732 of 2010 in case of Nestle India Limited thro, R. K. Rajput, Manager (Sales) & 1 vs. State of Gujarat & 1, decided on 22.10.2010, and in Criminal Misc Application No.8800 of 2010 in case of Bhagwati Flour & Food Pvt. Ltd.-Manufacturing Company & 1 vs. State of Gujarat & 1, decided on 19.03.2012. 10. In the result, this Criminal Misc. Application succeeds and is hereby allowed. Accordingly, Criminal Case No.1026 of 1994 pending on the file of the 5th Additional Senior Civil Judge and Judicial Magistrate, First Class, Bhuj, Kuchchh, is quashed and set aside. Rule is made absolute. Application allowed.