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2015 DIGILAW 1701 (RAJ)

Sudhir Avasthi v. The State of Rajasthan

2015-09-22

BANWARI LAL SHARMA

body2015
JUDGMENT 1. - This miscellaneous petition has been filed under Section 482 Cr.RC. against the order dated 03.06.2013 passed by the learned Additional Chief Judicial Magistrate, No. 1, Ajmer, whereby the application for discharge filed by the petitioners was dismissed and also seeking quashing of Criminal Complaint No. 259/2009 (325/1996) pending before the learned Additional Chief Judicial Magistrate, No.1, Ajmer whereby the petitioners are being prosecuted for the offence under Section 7/16 of the Prevention of Food Adulteration Act. 2. The brief facts of the case are that on 29.05.1993, the Food Inspector took samples of Kesar Badam Ice-cream and the samples were sent for chemical examination to the Public Analysit, report of which was received on 11.06.1993 and as per the report, the ice-cream was found to be adulterated. The complaint was filed against the petitioners-accused on 19.09.1996 (i.e. after about 3 years 4 months). The petitioners-accused, thereafter, filed an application under Section 13(2) of the Prevention of Food Adulteration Act, 1988 on 21.02.1998 before the learned trial court, which was allowed vide order dated 05.07.2010 and in pursuance of which the second sample was sent to the CFL on 29.06.2012. The certificate of CFL dated 06.08.2012 was received on 21.08.2012 (i.e. after about 19 years), wherein it was mentioned that since the sample received was in deteriorated condition and hence the same could not be analysed. The petitioners-accused, thereafter, moved an application for being discharged from the offence on the ground that in absence of failure of second sample, the prosecution case totally vitiates and thus the same is liable to be dismissed, which was dismissed vide order dated 03.06.2013. Hence, this revision petition. 3. Heard learned counsel for the petitioners and the learned Public Prosecutor. 4. The learned counsel for the petitioners-accused submitted that continuation of criminal proceedings against the present petitioners-accused is a futile exercise. The sample of the ice-cream was taken on 29.05.1993 and the report of the public analyst was received on 11.06.1993. The complaint was filed on 19.09.1996, i.e. after an inordinate delay of about 3 years 4 months, which vitiates the proceedings initiated against the petitioners-accused in regard to the highly perishable products. The sample of the ice-cream was taken on 29.05.1993 and the report of the public analyst was received on 11.06.1993. The complaint was filed on 19.09.1996, i.e. after an inordinate delay of about 3 years 4 months, which vitiates the proceedings initiated against the petitioners-accused in regard to the highly perishable products. It was also submitted that the petitioners-accused filed an application for re-analysis of the samples from the CFL on 21.02.1998, which came to be allowed on 05.07.2010, i.e. after a gap of about 12 years from the date of application and a second sample was ent for re-analysis to the CFL and the certificate dated 06.08.2012 j was received on 21.01.2012 as per which it was opined that since the sample received was in deteriorated condition, therefore, the same could not be analysed. Hence, it was submitted that since the right of the petitioners-accused enshrined under Section 13(2) of the Act for getting the second sample re-examined was infringed, therefore, the petitioners-accused ought to have been discharged from the offence and the proceedings initiated against them ought to have been dropped but the learned trial court, without considering all these aspects of the matter, has dismissed the application of the petitioner. It was lastly prayed that this petition may be allowed and the proceedings initiated against the petitioners-accused may be dropped and they may be discharged from the offence under Section 7/16 of the Act. The learned counsel for the petitioners-accused relied upon the judgments delivered in the cases of Girishbhai Dahyabhai Shah v. C.C. Jani & Anr. [2009(2) WLC (SC) Cri. 707 : (2009) 15 SCC 64 ] and Smt. Leela Devi & Ors. v. State of Rajasthan & Anr. [2012 (3) RCC (Raj.) 1175] . 5. Per contra, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioners-accused and submitted that the learned trial court, after considering all the aspects of the matter, has found prima facie case against the petitioners-accused and thus the proceedings initiated against the petitioners-accused and thus the proceedings initiated against the petitioners-accused cannot be quashed. 6. I have considered the rival submissions made at the Bar. 7. 6. I have considered the rival submissions made at the Bar. 7. Admittedly, the sample of the ice-cream, in respect of which the complaint was filed, was taken on 29.05.1993 and the report of the Public Analyst was received on 11.06.1993 and the complaint was filed on 19.09.1996, after a lapse of three years from the date of taking sample. The petitioners-accused thereafter applied for examination of second sample as per the provisions enshrined in Section 13(2) of the Act on 21.02.1998, which came to be allowed vide order dated 05.07.2010 (i.e. after a period of about 19 years from the date of taking sample). The sample was sent to CFL but as per the certificate of the CFL, since the sample was in deteriorated condition, therefore, the same could not have been analysed. Thus, the petitioners-accused were prevented from getting the second sample analysed as the second sample had deteriorated and was not capable of being analysed. 8. In the matter of Girishbhai Dahyabhai Shah (supra), the Hon'ble Supreme Court held that delay in providing opportunity for examination of second sample by the CFL is fatal to the prosecution. It was also held that delay led to the sample being deteriorated and thus, the Hon'ble Apex Court quashed the proceedings against the accused as the valuable right available to the accused under Section 13(2) stood frustrated. 9. In the matter of Smt. Leela Devi & Ors. (supra), a Coordinate Bench of this Court at principal Seat, while relying upon the judgment of the Hon'ble Supreme Court in the matter of Girishbhai Dahyabhai (supra) and various other judgments of the Hon'ble Supreme Court and a judgment of Division bench of this Court, held that the accused have been deprived of their statutory right to challenge the report of the Public Analyst by having the second sample of food article analysed by the CFL. 10. On considering the case in hand on the touchstone of the principles enunciated by the Hon'ble Supreme Court and in view of the above, this court is of the opinion that the petitioners-accused were deprived of their statutory right to challenge the report of the Public Analyst by having the second sample of food article analysed by the CFL. 11. Resultantly, this petition filed under Section 482 Cr.RC. 11. Resultantly, this petition filed under Section 482 Cr.RC. is allowed and the impugned order dated 03.06.2013 passed by the learned Additional Chief Judicial Magistrate, No. 1, Ajmer in Criminal Complaint No. 259/2009 (325/1996) is hereby quashed and the criminal proceedings in Complaint No. 259/2009 (325/1996) pending before the learned Additional Chief Judicial Magistrate, No. 1 are also quashed and set aside and the petitioners-accused stand discharged from the offence under Section 7/16 of the Prevention of Food Adulteration Act. 12. A copy of this order be sent to the learned Additional Chief Judicial Magistrate, No. 1, Ajmer for necessary action.Petition Allowed. *******