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2015 DIGILAW 2057 (RAJ)

Vishram Kumawat v. State of Rajasthan

2015-12-09

SANDEEP MEHTA

body2015
JUDGMENT : Sandeep Mehta, J. Heard. 2. Issue notice. Learned P.P. accepts notice on behalf of the respondent State. 3. With the consent of learned counsel for the parties, the misc. petition itself is being heard and decided today itself. 4. By way of the instant misc. petition, the petitioner has approached this Court seeking quashing of the proceedings of Criminal Case No.635/2012 pending in the Court of learned Additional Chief Judicial Magistrate, Merta City for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short, 'the PFA Act'). 5. Facts in brief are that the Food Inspector, Nagaur collected a sample of milk cake from the petitioner's concern namely, Kumawat Mawa Bhandar on 3.11.2010. The food article was divided into three parts ; preservative formalin was added and the samples were sealed in separate glass bottles after following the due formalities. The first part of the food sample was sent to the Public Analyst, Jodhpur for analysis along with form no.VII. The Public Analyst analysed the sample and issued a report dated 9.12.2010 opining that the sample of milk cake was adulterated as the same did not conform to the standards. A complaint was filed against the petitioner in the Court of A.C.J.M., Nagaur on 14.9.2012. The petitioner appeared before the trial Court for the first time upon service of summons on 21.2.2013 and was released on bail. On the same day, an application under Section 7/16 read with Section 13(2) of the PFA Act was submitted on behalf of the petitioner for sending the second sample of the food article for reanalysis to the Central Food Laboratory, Pune (CFL). The learned A.P.P. kept on seeking dates for filing a reply to the said application but did not file any reply till 12.7.2013, on which date, the learned trial Court allowed the application filed on behalf of the accused and directed that the second food sample be sent to the CFL Pune for analysis. The accused deposited the requisite charges etc. whereupon the second food sample was summoned from the local Health Authority. The A.P.P. submitted the sample in the Court on 2.9.2013 upon which it was forwarded to CFL Pune, from where a certificate dated 24.10.2013 was received to the effect that the sample was received in a deteriorated condition and hence, was unfit for analysis. 6. whereupon the second food sample was summoned from the local Health Authority. The A.P.P. submitted the sample in the Court on 2.9.2013 upon which it was forwarded to CFL Pune, from where a certificate dated 24.10.2013 was received to the effect that the sample was received in a deteriorated condition and hence, was unfit for analysis. 6. Upon this, the petitioner has approached this Court by way of the instant misc. petition seeking quashing of the proceedings of the complaint on the ground that the mandatory and statutory right of the accused to challenge the report of the Public Analyst by having the second food sample reanalysed through the CFL has been infringed and frustrated on account of the delay in sending the second food sample to the CFL. 7. Learned counsel for the petitioner places reliance on the following judgments :- (i) Municipal Corporation of Delhi v. Ghisa Ram reported in AIR 1967 SC 970 . (ii) S.B. Crl. Misc. Petition No.165/2004 (Chandra Shekhar Lakhotia & Anr. v. State of Rajasthan) decided on 12.10.2011. (iii) S.B. Crl. Misc. Petition No.1094/2012 (Ved Prakash v. State of Rajasthan) decided on 14.6.2012. and urges that allowing further proceedings of the complaint would clearly amount to a gross abuse of process of law and, therefore, the entire proceeding of the complaint deserves to be quashed. 8. Per contra, learned public prosecutor vehemently opposes the submissions advanced on behalf of the petitioner's counsel and contends that as the local health authority, after analysis of the first food sample reported that the food article sold by the petitioner was adulterated, there is no reason to interfere in the matter for quashing the proceedings of the complaint at its inception. He submits that the accused can take such defence at the final stage of the proceedings but as per him, it is not a case fit case for quashing the proceedings of the complaint in exercise of the inherent powers of this Court. 9. I have heard & considered the arguments advanced at bar and have gone through the material available on record. 10. 9. I have heard & considered the arguments advanced at bar and have gone through the material available on record. 10. It is undisputed proposition of law that an accused being prosecuted for the offence under Section 7/16 of PFA Act, has a statutory and mandatory right to challenge the report of Public Analyst by having the second sample of food article examined through the CFL as provided under Section 13(2) of the PFA Act. Such right is unqualified, absolute, unfettered and has even been held to be a fundamental right of the accused in a reference answered by the Division Bench of this Court in the case of Onkarlal v. State of Rajasthan reported in 2004 (2) RLW 934. The right to have the second food sample analysed through the CFL is an extension of the valuable right of defence available to every person being prosecuted in a Court of law for the offence under the PFA Act. If the above right available to the accused by virtue of Section 13 (2) of the PFA Act is infringed and defeated on account of delay or for any other reason otherwise than the own conduct of the accused, then obviously the proceedings of the complaint filed against such accused under the provisions of PFA Act would cause severe prejudice to the accused and cannot be allowed to continue as held by the Hon'ble Supreme Court in the case of Ghisa Ram (supra). 11. As noticed above, in the case at hand, the accused, soon after appearing before the trial Court moved an application for sending the second food sample for analysis to the CFL. The matter was kept on lingering without any justification awaiting the A.P.P.'s reply whereas the law nowhere provides that the A.P.P. is required to be heard in the matter of sending the second sample for reanalysis to the CFL. Section 13 (1), (2) and (3) of the PFA Act read as under:- "13. Report of public analyst. - (1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. Section 13 (1), (2) and (3) of the PFA Act read as under:- "13. Report of public analyst. - (1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. (2A) When an application is made to the court under sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition. (2B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. (2C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court: Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B). (2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution. (2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution. (2E) If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under subsection (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.] (3) The certificate issued by the Director of the Central Food Laboratory 54 [under sub-section (2B)] shall supersede the report given by the public analyst under sub-section (1)." Thus, the trial Court ought to have remained conscious of the provision of law and should not have allowed the proceedings to be delayed unnecessarily. Since the right of the accused to have the second sample analysed through C.F.L. is unilateral, unqualified and mandatory, there was no occasion for the learned trial Court to have sought a reply from the A.P.P. The proceedings under Section 13 of the PFA Act are exclusively restricted interse between the accused and the Court and the A.P.P. conducting trial has no right of intervention in such proceedings except to facilitate production of the second sample in the Court as and when directed. In the case at hand, the matter was delayed for almost 8 months awaiting the reply of the A.P.P. to the application preferred by the accused under Section 13(2) of the PFA Act. When the sample could somehow finally reach the CFL, the same was found to be deteriorated beyond the state of being analysed. Thus, the mandatory right available to the accused petitioner to challenge the report of the public analyst by having the second food sample reanalyzed through the CFL was totally frustrated and defeated owing to the above set of circumstances which perpetrated from the irresponsible approach of the Court and the A.P.P. conducting the trial. Thus, the mandatory right available to the accused petitioner to challenge the report of the public analyst by having the second food sample reanalyzed through the CFL was totally frustrated and defeated owing to the above set of circumstances which perpetrated from the irresponsible approach of the Court and the A.P.P. conducting the trial. Consequently, allowing further prosecution of the accused in this case is unjustified and unwarranted and would amount to gross abuse of process of law. 12. As an upshot of the above discussion, the instant misc. petition deserves to be and is hereby allowed. All further proceedings of the Criminal Case No.635/2012 pending against the accused petitioner in the Court of learned Additional Chief Judicial Magistrate, Merta City are hereby quashed. 13. Stay petition also stands disposed of. Petition allowed.