Puran Mal Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/771086
SubjectFood Adulteration
CourtRajasthan High Court
Decided OnMay-14-2009
Judge S.P. Pathak, J.
Reported in2009(2)WLN605
AppellantPuran Mal
RespondentState of Rajasthan
DispositionPetition allowed
Cases ReferredShiv Lal v. State of Rajasthan
Excerpt:
prevention of food adulteration act, 1954 - sections 7/16, 13(2)--criminal proceedings--when can be quashed--food inspector took sample of milk on 18.04.1989--food inspector filed complaint on 10.01.1991 after 21 months--third sample regarding which petitioner had a right to examined from the central food laboratory has been taken away for the reason that it was lost--after service of summon, petitioner appeared in the court on 18.07.2001--held, it is fit case where criminal proceedings pending for last 18 years before trial court are required to be quashed. - - after service of summons for the first time the petitioner appeared before the court on 29.08.2001. the petitioner moved an application for sending one of the samples to the central food laboratory in the year 2003. the application of the petitioner was rejected by the trial court observing that the court was satisfied with the report of the local health authority. we are satisfied that serious prejudice has been caused to the appellant because of non-supply of the public analyst's report, as required under section 13(2) of the act. in view of several decisions of this court as well as apex court, this is a valuable right available to the accused facing trial under the provisions of food adulteration act.s.p. pathak, j.1. by this criminal misc. petition under section 482 cr.p.c., the petitioner has sought to quash the criminal proceedings now pending in the court of additional civil judge (s.d.) and judicial magistrate no. 2, alwar in criminal case no. 111/2005 on transfer from the court of additional civil judge (j.d.) and judicial magistrate no. 1, alwar in criminal case no. 68/2000 for the offence punishable under section 7/16 of the prevention of food adulteration act (in short referred as, 'the act').2. the necessary facts for the disposal of the present misc. petition are that on 18.04.1989 at about 8.15 a.m. in the morning, the inspector of the food department on seeing a milk vendor while taking milk to supply to its customers in drums purchased 750 ml of milk after making payment to him. from the milk purchased, it was divided into three parts and were kept in small bottles, thereafter the same were sealed. after conducting necessary formalities at the spot, one of the sample was sent for its examination to the local health authority, alwar who in turn sent its report on 29.04.1989 and found the sample adulterated. it appears that a complaint against the accused-petitioner for committing offence under section 7/16 of the act was filed before the trial court on 10.01.1991 and summons to the petitioner were issued. after service of summons for the first time the petitioner appeared before the court on 29.08.2001. the petitioner moved an application for sending one of the samples to the central food laboratory in the year 2003. the application of the petitioner was rejected by the trial court observing that the court was satisfied with the report of the local health authority. it appears that the petitioner feeling aggrieved with the order rejecting the application filed the present misc. petition in the year 2001 and on 23.03.2007 the court after admitting the petition stayed further proceedings pending before the trial court.3. it has been contended by the learned counsel that in the instant case what is not in dispute and cannot be disputed is that the incident took place on 18.04.1989, the food inspector filed complaint on 10.01.1991 i.e. after 21 months and third sample regarding which the petitioner had a right to get examined from the central food laboratory has been taken away for the reason that it was lost. it is also contended that after service of summons, the petitioner appeared in the court on 18.07.2001. thus, it would appear that after 12 years of incident even if there was any sample with the court, that was of no use for its examination. it is also contended that a valuable right has been given to the accused under section 13(2) of the act which is mandatory in nature. it is contended that now almost 18 years have elapsed and the case is pending trial at the stage of pre-charge evidence, therefore, in view of several decisions of the apex court, if there appears inordinate delay in completing the trial, the criminal proceedings are liable to be quashed.4. on the other hand, learned public prosecutor for the state while opposing the submissions made before me has submitted that proper efforts were made to traceout the whereabouts of the petitioner and ultimately he appeared in the court after service on 18.07.2001, therefore, the delay cannot be attributed to the prosecution. it is also submitted that in 21 months time the complaint was filed and since the sample was found adulterated, therefore, the accused petitioner has no right to claim relief to quash the criminal proceedings pending against him.5. i have carefully considered the submissions made by both sides and perused the material available on record.6. in the present matter, the point for consideration is as to whether the criminal proceedings pending against the accused for last more than 19 years at the stage of pre-charge evidence are liable to be quashed or not, particularly, in the circumstances when third sample could not be sent for its examination in the central food laboratory on the request of the petitioner made before the trial court.7. in the case of rameshwar dayal v. state of u.p. : 1995 supp.(4) scc 659, the hon'ble apex court while considering the provisions of section 13(2) of the prevention of food adulteration act has observed as under:on the record, it appears that the report of the public analyst is not supplied to the accused, as required under section 13(2) of the act.consequently, he could not get his own sample examined by the central laboratory. it is a very valuable right given to him. rules also provides that such a report should be supplied to the accused within a certain period. the question arose in a similar case where this rule is mandatory or directory. we need not launch into such a discussion in this case. we are satisfied that serious prejudice has been caused to the appellant because of non-supply of the public analyst's report, as required under section 13(2) of the act. the high court having noticed this, yet rejected the plea on the mere ground that such objection was not raised before the trial court.it is not a question of an objection, but it is a question of prejudice. such a point can be raised even at a later stage, if material on record supports the same. in the result, the conviction and sentence are set aside.8. this court in the case of kanji v. state of rajasthan rcc nov.-dec. 1996 page 669, has observed that the noncompliance of section 13(2) of the act cause a serious prejudice to the accused, therefore, conviction was set aside. 9. yet, in another case of babu lal v. state of rajasthan 1999(2) rcc 1211, this court has held that the compliance of section 13(2) of the act is necessary and in absence of the compliance of section 13(2) of the act the conviction is not liable to be sustained.10. thus, it appears that the present case is in relation to the incident of 1989, the complaint was filed in the year 1991, application for getting third sample examined by the central food laboratory was rejected in 2001 and now more than 19 years have passed. it is to be seen that in view of several decisions of this court and the hon'ble apex court, compliance of section 13(2) of the act is essential and admittedly in this case for one reason or the other compliance has not been made. it is also a relevant aspect of the matter that even if after filing the complaint that was filed after 21 months of the incident, the sample had lost and it is significant for its examination because the milk is perishable commodity and by lapse of time it was of no use for its examination. in the instant case, after appearance of the accused in the year 2001, the question arose in relation to right of the accused to get the sample examined from the central food laboratory. the appearance of the accused in the court was nearly after more than 11 years, therefore, it can easily be inferred that the right of the accused available to him under section 13(2) of the act had been taken away without no fault of his.11. this court on 23.03.2007 while admitting the petition passed following order:a perusal of the order-sheet dt. 10.04.2006 goes to show that delay in service of summons has been caused on account of the fact that in the complaint which was filed in the court by the food inspector, the address and father's name were incorrectly mentioned and were different from one which were available in form-6. this is a matter which the secretary/commissioner, food & civil supply, government of rajasthan may look into as to whether the above act was a deliberate act or not by the concerned food inspector. a copy of this order may be sent to the secretary/commissioner, food & civil supplies, government of rajasthan, jaipur and and c.m.h.o., alwar for necessary action in this behalf. the report after a preliminary enquiries be sent to this court within two months.12. in view of the above factual position, delay caused in sevice of summons cannot be attributed to the accused-petitioner, therefore, in the facts and circumstances it can be presumed that nearly after 12 years for the first time the petitioner appeared in the court after service and by that time the right available to him under section 13(2) of the act was taken away. in view of several decisions of this court as well as apex court, this is a valuable right available to the accused facing trial under the provisions of food adulteration act.13. in the case of shiv lal v. state of rajasthan 2000(1) rcc 96, this court finding that there was no contribution of the accused for the delay in trial and the accused suffered 12 years of trial, allowed the misc. petition and quashed the criminal proceedings pending before the trial court.14. thus, i am of the opinion, taking into consideration the facts and circumstances of the case that it is a fit case where criminal proceedings pending for last 18 years before the trial court are required to be quashed in exercise of the powers vested in this court under section 482 cr.p.c.15. in the result, this misc. petition is allowed. the criminal proceedings pending before the additional civil judge (s.d.) and judicial magistrate no. 2, alwar in criminal case no. 111/2005 for the offence under section 7/16 of the prevention of food adulteration act stands quashed.
Judgment:

S.P. Pathak, J.

1. By this criminal misc. petition under Section 482 Cr.P.C., the petitioner has sought to quash the criminal proceedings now pending in the Court of Additional Civil Judge (S.D.) and Judicial Magistrate No. 2, Alwar in Criminal Case No. 111/2005 on transfer from the Court of Additional Civil Judge (J.D.) and Judicial Magistrate No. 1, Alwar in Criminal Case No. 68/2000 for the offence punishable under Section 7/16 of the Prevention of Food Adulteration Act (in short referred as, 'the Act').

2. The necessary facts for the disposal of the present misc. petition are that on 18.04.1989 at about 8.15 a.m. in the morning, the Inspector of the Food Department on seeing a milk vendor while taking milk to supply to its customers in drums purchased 750 ml of milk after making payment to him. From the milk purchased, it was divided into three parts and were kept in small bottles, thereafter the same were sealed. After conducting necessary formalities at the spot, one of the sample was sent for its examination to the Local Health Authority, Alwar who in turn sent its report on 29.04.1989 and found the sample adulterated. It appears that a complaint against the accused-petitioner for committing offence under Section 7/16 of the Act was filed before the trial Court on 10.01.1991 and summons to the petitioner were issued. After service of summons for the first time the petitioner appeared before the Court on 29.08.2001. The petitioner moved an application for sending one of the samples to the Central Food Laboratory in the year 2003. The application of the petitioner was rejected by the trial Court observing that the Court was satisfied with the report of the Local Health Authority. It appears that the petitioner feeling aggrieved with the order rejecting the application filed the present misc. petition in the year 2001 and on 23.03.2007 the Court after admitting the petition stayed further proceedings pending before the trial Court.

3. It has been contended by the learned Counsel that in the instant case what is not in dispute and cannot be disputed is that the incident took place on 18.04.1989, the Food Inspector filed complaint on 10.01.1991 i.e. After 21 months and third sample regarding which the petitioner had a right to get examined from the Central Food Laboratory has been taken away for the reason that it was lost. It is also contended that after service of summons, the petitioner appeared in the Court on 18.07.2001. Thus, it would appear that after 12 years of incident even if there was any sample with the Court, that was of no use for its examination. It is also contended that a valuable right has been given to the accused under Section 13(2) of the Act which is mandatory in nature. It is contended that now almost 18 years have elapsed and the case is pending trial at the stage of pre-charge evidence, therefore, in view of several decisions of the Apex Court, if there appears inordinate delay in completing the trial, the criminal proceedings are liable to be quashed.

4. On the other hand, learned public prosecutor for the State while opposing the submissions made before me has submitted that proper efforts were made to traceout the whereabouts of the petitioner and ultimately he appeared in the Court after service on 18.07.2001, therefore, the delay cannot be attributed to the prosecution. It is also submitted that in 21 months time the complaint was filed and since the sample was found adulterated, therefore, the accused petitioner has no right to claim relief to quash the criminal proceedings pending against him.

5. I have carefully considered the submissions made by both sides and perused the material available on record.

6. In the present matter, the point for consideration is as to whether the criminal proceedings pending against the accused for last more than 19 years at the stage of pre-charge evidence are liable to be quashed or not, particularly, in the circumstances when third sample could not be sent for its examination in the Central Food Laboratory on the request of the petitioner made before the trial Court.

7. In the case of Rameshwar Dayal v. State of U.P. : 1995 Supp.(4) SCC 659, the Hon'ble Apex Court while considering the provisions of Section 13(2) of the Prevention of Food Adulteration Act has observed as under:

On the record, it appears that the report of the Public Analyst is not supplied to the accused, as required under Section 13(2) of the Act.

Consequently, he could not get his own sample examined by the Central Laboratory. It is a very valuable right given to him. Rules also provides that such a report should be supplied to the accused within a certain period. The question arose in a similar case where this Rule is mandatory or directory. We need not launch into such a discussion in this case. We are satisfied that serious prejudice has been caused to the appellant because of non-supply of the Public Analyst's report, as required under Section 13(2) of the Act. The High Court having noticed this, yet rejected the plea on the mere ground that such objection was not raised before the trial Court.

It is not a question of an objection, but it is a question of prejudice. Such a point can be raised even at a later stage, if material on record supports the same. In the result, the conviction and sentence are set aside.

8. This Court in the case of Kanji v. State of Rajasthan RCC Nov.-Dec. 1996 page 669, has observed that the noncompliance of Section 13(2) of the Act cause a serious prejudice to the accused, therefore, conviction was set aside.

9. Yet, in another case of Babu Lal v. State of Rajasthan 1999(2) RCC 1211, this Court has held that the compliance of Section 13(2) of the Act is necessary and in absence of the compliance of Section 13(2) of the Act the conviction is not liable to be sustained.

10. Thus, it appears that the present case is in relation to the incident of 1989, the complaint was filed in the year 1991, application for getting third sample examined by the Central Food Laboratory was rejected in 2001 and now more than 19 years have passed. It is to be seen that in view of several decisions of this Court and the Hon'ble Apex Court, compliance of Section 13(2) of the Act is essential and admittedly in this case for one reason or the other compliance has not been made. It is also a relevant aspect of the matter that even if after filing the complaint that was filed after 21 months of the incident, the sample had lost and it is significant for its examination because the milk is perishable commodity and by lapse of time it was of no use for its examination. In the instant case, after appearance of the accused in the year 2001, the question arose in relation to right of the accused to get the sample examined from the Central Food Laboratory. The appearance of the accused in the Court was nearly after more than 11 years, therefore, it can easily be inferred that the right of the accused available to him under Section 13(2) of the Act had been taken away without no fault of his.

11. This Court on 23.03.2007 while admitting the petition passed following order:

A perusal of the order-sheet dt. 10.04.2006 goes to show that delay in service of summons has been caused on account of the fact that in the complaint which was filed in the Court by the Food Inspector, the address and father's name were incorrectly mentioned and were different from one which were available in form-6. This is a matter which the Secretary/Commissioner, Food & Civil Supply, Government of Rajasthan may look into as to whether the above act was a deliberate act or not by the concerned Food Inspector. A copy of this order may be sent to the Secretary/Commissioner, Food & Civil Supplies, Government of Rajasthan, Jaipur and and C.M.H.O., Alwar for necessary action in this behalf. The report after a preliminary enquiries be sent to this Court within two months.

12. In view of the above factual position, delay caused in sevice of summons cannot be attributed to the accused-petitioner, therefore, in the facts and circumstances it can be presumed that nearly after 12 years for the first time the petitioner appeared in the Court after service and by that time the right available to him under Section 13(2) of the Act was taken away. In view of several decisions of this Court as well as Apex Court, this is a valuable right available to the accused facing trial under the provisions of Food Adulteration Act.

13. In the case of Shiv Lal v. State of Rajasthan 2000(1) RCC 96, this Court finding that there was no contribution of the accused for the delay in trial and the accused suffered 12 years of trial, allowed the misc. petition and quashed the criminal proceedings pending before the trial Court.

14. Thus, I am of the opinion, taking into consideration the facts and circumstances of the case that it is a fit case where criminal proceedings pending for last 18 years before the trial Court are required to be quashed in exercise of the powers vested in this Court under Section 482 Cr.P.C.

15. In the result, this misc. petition is allowed. The criminal proceedings pending before the Additional Civil Judge (S.D.) and Judicial Magistrate No. 2, Alwar in Criminal Case No. 111/2005 for the offence under Section 7/16 of the Prevention of Food Adulteration Act stands quashed.