State of Gujarat and anr. Vs. Shaileshbhai Mansukhlal Shah and anr. - Court Judgment

Excerpt:
civil - fee - second analysis of samples - section 13(2) of prevention of food adulteration act, 1954 - respondent was charged for offences under act - during pendency of proceedings he made application for second analysis of sample - respondent was asked to pay fee for second analysis by judicial magistrate - objection raised by respondents - objection rejected by magistrate and session court - on appeal high court held that it was the obligation of the state to subject the sample for analysis and there was no obligation of accused to bear or pay the fee for the second analysis - hence, present appeal - held, provision for second analysis is an option given to the accused and not the complainant - the act does not require the complainant to pay the fees for second analysis - court cannot be asked to bear the cost of second analysis as its functions were adjudicatory and it the court is to render some assistance free it must be specifically provided in law - the accused had option to get second analysis only if he so desires - no provision anywhere by which state could be made liable to pay the fee for second analysis - in absence of any specific provision accused should bear fee for second analysis - order of high court set aside - appeal allowed. - sick industrial companies (special provisions) act, 1986[c.a. no. 1/1986]section 18; [s.b. sinha, lokeshwar singh panta & markandey katju,jj] rehabilitation scheme approval granted by bifr in view of observations made by appellate authority - nothing to show that order of bifr is fair or reasonable or meets the requirements of law appeal disposed of by aaifr only in terms of order of high court in company matter matter remitted to bifr so as to enable it to proceed in accordance with provisions of act, afresh--sections 26 & 32; [s.b. sinha, lokeshwar singh panta & markandey katju, jj] scope held, sick industrial companies (special provisions) act (sica) is a special statute. it is a self contained code. the jurisdiction of the company judge in a case where reference had been made to bifr would be subject to the provisions of sica. sica furthermore was enacted to secure the principles specified in article 39 of the constitution of india. it seeks to give effect to the larger public interest. it should be given primacy because of its higher public purpose. section 26 of sica bars the jurisdiction of the civil courts. what scheme should be prepared by the operating agency for revival and rehabilitation of the sick industrial company is within the domain of bifr. section 26 not only covers orders passed under sica but also any matter which bifr is empowered to determine. the jurisdiction of civil court is, thus, barred in respect of any matter for which the appellate authority or the board is empowered. the high court may not be a civil court but its jurisdiction in a case of this nature is limited.-- companies act, 1956 [c.a. no. 1/1956]. sections 391 to 394: scope scheme of arrangement in respect of sick company held, it is not possible to harmonize provisions of sections 391 to 394 with provisions of sica, 1985.-- section 391: scheme of arrangement made by company under section 391, companies act, 1956 - scheme providing for not only entering into arrangement as regards repayment of debts to secured creditors and unsecured creditors, but also providing for a merger held, such a scheme could not be placed for approval before bifr under sica order1. the issue involved in this appeal has been considered by us in crl. appeal no. 38/2001. the addl. chief judicial magistrate, gundal, following the decision of the gujarat high court in special crl. appeal no. 803/1998 (which is the subject matter of crl. a. no. 38/2001 decided today), has directed the complainant (food inspector/state) by order dated 30.12.1997 to pay the fee for second analysis of the sample under section 13(2) of the prevention of food adulteration act, 1954 ('act' for short). the said order was confirmed by the high court by order dated 9.5.2000 in crl. revision no. 21/2000.2. following the decision rendered by us today in crl. appeal no. 38/2001, this appeal is allowed and the order of the high court and the learned magistrate directing the complainant to pay the fee are set aside, and it is declared that the accused-respondent is liable to pay the fee for the second analysis under section 13(2) of the act.

Judgment:
ORDER

1. The issue involved in this appeal has been considered by us in Crl. Appeal No. 38/2001. The Addl. Chief Judicial Magistrate, Gundal, following the decision of the Gujarat High Court in Special Crl. Appeal No. 803/1998 (which is the subject matter of Crl. A. No. 38/2001 decided today), has directed the complainant (Food Inspector/State) by order dated 30.12.1997 to pay the fee for second analysis of the sample under Section 13(2) of the Prevention of Food Adulteration Act, 1954 ('Act' for short). The said order was confirmed by the High Court by order dated 9.5.2000 in Crl. Revision No. 21/2000.

2. Following the decision rendered by us today in Crl. Appeal No. 38/2001, this appeal is allowed and the order of the High Court and the learned Magistrate directing the complainant to pay the fee are set aside, and it is declared that the accused-respondent is liable to pay the fee for the second analysis under section 13(2) of the Act.