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2019 DIGILAW 1669 (ALL)

Hindustan Lever Ltd. v. State of U. P.

2019-07-12

SUDHIR AGARWAL

body2019
JUDGMENT : SUDHIR AGARWAL, J. 1. Heard Sri G.S. Chaturvedi and Sri Samit Gopal, learned Senior Advocates assisted by Sri Babloo Singh, Advocate for Revisionist and Sri Syed Ali Murtaza, learned A.G.A. for State. 2. This Criminal Revision under Section 397/401 Cr.P.C., has been filed aggrieved by order dated 01.12.1988 passed by Additional Chief Judicial Magistrate, Varanasi rejecting application of Revisionist for dropping proceedings under Section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "Act, 1954"). 3. It is submitted that revisionist's right of re-examination of sample and to prove that earlier examination is not correct, has been violated on account of fault of Department since they did not keep other samples properly and delayed the matter whereupon sample bottle leaked and become incapable of testing, hence Revisionist could not have been prosecuted further and should have been discharged. 4. Record shows that sample was taken in 1983 and complaint was filed on 24.03.1987 alongwith Public Analyst Report dated 24.11.1983. Copy of notice under Section 13(2) of Act, 1954 was forwarded to Revisionist by notice dated 03.04.1987 and received by Revisionist on 13.04.1987. Reply was submitted by Revisionist on 15.04.1987 stating that it has not received Public Analyst Report and the same should be supplied and thereafter it filed application in February, 1988 exercising right under Section 13(2) of Act, 1954. It is said that there was no delay on the part of Revisionist and on the contrary prosecution itself was guilty for delay and if it could not preserve other samples properly, applicant cannot be made to suffer. A substantial right has been conferred upon accused under Act, 1954 to seek re-examination of sample taken and that has been denied in the case in hand. 5. Learned AGA could not dispute that in the present case sample was taken on 06.10.1983 by Food Inspector from a shop at Ghughrani Gali, Varanasi. The sample was taken of a Food Item, namely, Vanaspati Ghee (Dalda). Public Analyst Report dated 24.11.1983 shows that its melting point was less than 31 which was below prescribed limit. Food Authorities waited for more than three years and only on 24.03.1987 filed complaint before Chief Judicial Magistrate, Varanasi. Copy of Public Analyst Report was forwarded to Revisionist vide letter dated 03.04.1987 but according to Revisionist letter was received by it on 13.04.1987 but copy of report was not appended. Food Authorities waited for more than three years and only on 24.03.1987 filed complaint before Chief Judicial Magistrate, Varanasi. Copy of Public Analyst Report was forwarded to Revisionist vide letter dated 03.04.1987 but according to Revisionist letter was received by it on 13.04.1987 but copy of report was not appended. It requested to supply the same vide reply dated 15.04.1987. 6. Revisionist thereafter vide letter dated 15.04.1987 desired to exercise its right of other sample tested and filed application before Additional Chief Judicial Magistrate (Economic Offences) in Criminal Case No. 108 of 1987 under Section 7/16 of Act, 1954 requesting it to direct prosecution to send reserved sample for analysis by Director, Central Food Laboratory, Calcutta. Trial Court summoned reserved sample and found that both samples have leaked rendering same incapable of further chemical examination and also that the bottom seal was broken, hence it ultimately rejected request of Revisionist vide order dated 23.05.1988 holding that sample is not capable for further examination. 7. In these circumstances, Revisionist filed an application under Section 245(2) Cr.P.C. for dropping proceedings and discharging Revisionist since prosecution has created a situation rendering Revisionist incapable of exercising its right under Section 13(2) of Act, 1954 for second examination of reserved sample. Application under Section 245(2) Cr.P.C. was rejected by Trial Court vide order dated 26.08.1988 observing that parties be allowed to lead evidence and thereafter it will be decided whether case should proceed as warrant case or summary. Later Additional Chief Judicial Magistrate rejected application under Section 245(2) Cr.P.C. vide order dated 01.12.1988. 8. The right conferred under Section 13(2) for getting sample kept by authorities for analyzing again from Central Food Laboratory is a substantial right conferred upon accused to prove its innocence. Sub-section (2) of Section 13 of Act, 1953 is mandatory as held in Bijaya Kumar Ram vs. State,1989 1 FAC 394 and Srinivas Pradhan vs. State of Orissa, 1990 2 FAC 10. 9. Sub-section (2) of Section 13 of Act, 1953 is mandatory as held in Bijaya Kumar Ram vs. State,1989 1 FAC 394 and Srinivas Pradhan vs. State of Orissa, 1990 2 FAC 10. 9. In T.V. Usman vs. Food Inspector, Tellichery Municipality, 1994 AIR(SC) 1818 Court held: "Sub-section (2) of Section 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal...." (emphasis added) 10. In the present case Revisionist was communicated by notice copy of Public Analyst Report but he categorically came before Court below that copy of Public Analysis Report has not been supplied to it and prayed that the same be supplied to it so that it may ask for its test by Central Food Laboratory. Neither authorities ensured supply of copy of Public Analysis Report nor Court below has taken into consideration that sample has leaked and was not in a situation so that the same could have been sent for analysis by Central Food Laboratory. Thus a valuable right of Revisionist stood denied. Therefore, it was/is a fit case for discharge/ dropping of proceedings. 11. Even otherwise, now we are in 2019 and after such a long time I do not find that any proceeding effectively can be continued when in 1988 itself food sample had leaked. Looking to entirety of facts and circumstances, I find that Court below has erred in law in ignoring mandatory requirement of Section 13(2) of Act, 1952 and its consequences. 12. In view of above, Revision is allowed. Order dated 01.12.1988 is hereby set aside. Revisionist is discharged for offence under Section 7/16 of Act, 1954.