Allahabad High Court
Aas Mohammad vs State Of U.P. And Another on 23 May, 2016
Bench: Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 41
Reserved On: 4.5.2016
Delivered On: 23.5.2016
Appl u/s 482 No. 13280/2016
Applicant :- Aas Mohammad
Opposite Party :- State of U.P & other
Applicant's Counsel :-Ankit Agarwal
Counsel for O.P.:- Govt. Advocate
Hon'ble Pankaj Naqvi,J.
An FIR as Case Crime No.141/2015, under Sections 379/411 IPC and 3/7 Essential Commodities Act, came to be lodged against the applicant on 7.4.2015, alleging that on a raid conducted by O.P. No.2 at the commercial site of the applicant, 4 tankers bearing registration no. HR 38G 9294, UP 82A 9687, UP 14E 9076 and UP 86B 9842, were in all found to contain 46000 litres of kerosene, meant for public distribution system and as the applicant failed to show any requisite authorization to possess kerosene oil, the said tankers along with kerosene oil were seized, a recovery memo prepared after carrying out requisite formalities. After investigation, a charge-sheet was submitted against the applicant on 1.6.2015 under the aforesaid offences and cognizance taken. During the pendency of the case, an FSL report dated 25.8.2015 has been received indicating adulteration in the kerosene oil. The applicant filed an application before the court below, directing the I.O. concerned to take a fresh sample of kerosene from the 4 tankers for its re-analysis, which has been rejected under the impugned order dated 22.9.2015.
Heard Sri Ankit Agarwal, learned counsel for the applicant and the learned A.G.A.
Learned counsel for the applicant fairly submits that even though neither under the relevant control order nor under the Code, there exists any indefeasible right of the applicant to insist for re-analysis of a seized sample, yet an application for re-analysis could be allowed as the said report would be a credible material either to claim discharge or by way of defence. He relies upon a judgement of the Apex Court in State of Orissa vs. Debendra Nath Padhi, 2005 SCC (Cri) 415 and that of a Division Bench of this Court in Sadhan Sahkari Samiti Ltd. & Anr. vs. State of U.P.& Ors., 1998 JIC 781 (All).
Learned A.G.A has defended the impugned order and has submitted that the said authorities are not applicable on the facts of the present case.
Seizure is an important facet of criminal investigation which can be exercised by the Investigating authority or any other competent authority with or without the intervention of the court.
It is not disputed that neither under the Kerosene Control Order nor under the provisions of the Code, there is any statutory power to insist for a re-analysis of a seized sample but nevertheless such a power can be exercised depending on the facts of each case and in particular the nature of the seized item, i.e., whether it is perishable or not and that too at a particular stage. The seized item in the instant case is kerosene and it is not the case of the applicant that with the passage of time, same is likely to deteriorate or change its form so as to affect the quality of the seized sample.
A Division Bench of this Court in Vijai Kumar v. The Union of India and others in Criminal Misc. Writ Petition No.23535/2015 decided on 24.9.2015, had an occasion to examine the constitutional validity of the Fertilizer Control Order, 1985 on the ground that the control order does not provide any facility for retesting as it is a valid right of defence to challenge the report of the Public Analyst and by depriving the said right, the constitutionality of the control order becomes vulnerable in law. The Division Bench after referring to the Division Bench judgement of the Punjab & Haryana Court in The Director, Agriculture vs. Gurumukh Mal Shibba Mal and otehrs, (1997) 117 PLR 249, considered the following observations which are as under:-
"In case under scrutiny a sample of fertilizer was taken by the authorities as per provisions of Control Order which on analysis was found to be of non-standard grade. With a view to determine the guilt proceedings have been initiated according to law. Evidence is yet to be adduced by the complainant/the prosecution. It is thereafter petitioner is to be given a right of defence. It indeed would be pre-mature to judge the ultimate decision which the Court may take. An accused person of course has a right to set up defence in terms of Section 293 Cr.P.C. What would be the nature of defence can again be a matter of sheer guess. In any case one could visualise that petitioner would adduce all such evidence so as to prove his innocence. May be he examines another expert to cross-examine the official witness or makes reference to some celebrated authority on law relevant to the point in controversy to establish that the conclusion arrived at by the analyst is indeed impermissible and as a last resort can make out a case for the Court to send the third sample for its analysis by another laboratory. With these safeguards at his command it can be stated that procedure prescribed is neither arbitrary nor unreasonable or unfair. On examining the matter on the touch stone of Articles 19(1) and 21 and various decisions of the Apex Court, we are of the view that Fertilizer Control Order, 1985 has been enacted by competent Legislature and the same does not violate any express provision of Constitution of India"
Taking a cue from the aforesaid judgement, this Court is of the view that to insist for a reanalysis of a seized sample, the applicant would be at liberty to move the court concerned at an appropriate stage only in terms of Section 293 Cr.P.C. To insist for re-analysis of the seized sample at this stage when only charge-sheet has been filed, would neither be appropriate nor desirable nor could learned counsel for the applicant demonstrate any irreparable prejudice which could have persuaded the Court to accede to the request of the applicant at this stage.
In so far reliance of Devendra Nath Padhi (supra) is concerned, the Apex Court in paragraph 27 of the judgment was taking a view that if the accused could produce any reliable material even at the stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial / public time and at the same time it also held that it cannot be understood to mean that the accused has a right to produce any document at the stage of framing of charge having regard to mandate of Section 227, 228, 239 & 240 Cr.P.C. The document sought to be brought by the defence at the stage of summoning to get the proceedings quashed, should be of such unimpeachable character or of sterling quality which could satisfy the conscience of the Court that the prosecution be quashed at its threshold as is evident in paragraph -29 of Padhi (supra).
To insist for re-analysis of the seized sample in the light of Padhi (supra) is neither desirable nor appropriate as in the opinion of the Court, the case of Padhi (supra) related to discharge on a document, which is of sterling quality, which would have no application to the present case.
In so far reliance of Sadhan Sahkari Samiti Limited (supra) is concerned, the Court is of the view that the said decision is also not applicable to the facts of the present case as an FIR under Section 3/7 of the Essential Commodities Act r/w the Fertilizer Control Order, was sought to be quashed on the ground of delayed dispatch of the sample for analysis, which the Court specifically repelled and so also the contention that in the absence of any specific provision of re-analysis of the seized sample, the Control Order cannot be declared violative of Article 21.
The case is presently pending at the stage of framing of charge. The order impugned does not suffer from any illegality / irregularity which could persuade this Court to invoke its inherent jurisdiction,
The application is devoid of merit and is dismissed.
Order Date: 23.5.2016
Chandra (Pankaj Naqvi)
