Dinesh Kumar Dubey And 2 Others vs State Of U.P. & Another
2017 Latest Caselaw 3757 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 17437 of 2015
 

 
Applicant :- Dinesh Kumar Dubey And 2 Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- N.K. Chaturvedi,N.S. Chahar
 
Counsel for Opposite Party :- Govt. Advocate,Pradeep Chauhan
 

 
Hon'ble Pankaj Naqvi,J.

Heard Sri N.K. Chaturvedi, learned counsel for the applicants and the learned A.G.A.

This application under Section 482 Cr.P.C, has been filed for quashing the proceedings of Case No. 979 of 1999, Nagar Swasthya Adhikari, Nagar Nigam, Agra Vs. Dinesh Kumar Dubey & Others, under Section 7/16 of the Prevention of Food Adulteration Act 1954 ("the Act"), P.S. Etmadpur, District- Agra, pending in the Court of A.C.J.M, Ist, Agra.

A complaint under Section 7/16 of the Act was filed by O.P. no. 2 on 1.7.1999, alleging that on 23.4.1999 an inspection was conducted at the Kattha (Catechu) factory of the applicants, where manufacture / sale of Kattha (Catechu) was being carried, a sample Kattha was purchased, divided in three parts, sealed and labelled in the presence of the applicants, out of which one sample was sent for analysis, second and third samples are in the office of the C.M.O, Agra, the analytical report dated 3.6.1999 indicated that the sample was adulterated which raises an offence under Section 7/16 of the Act. The Learned Magistrate acting on the complaint of O.P. no. 2 / a public servant, took cognizance of the offence, summoned the applicants for above offence under order dated 1.7.1999. The applicants filed an application dated 20.8.1999 invoking his statutory right under Section 13 (2) of the Act for analysis of the sample by the Central Food Laboratory. The application was allowed on 28.8.1999 at the cost of O.P. no. 2. No report under Section 13 (2) of the Act was obtained. The applicants claimed discharge on 7.8.2012, on the ground that in the absence of a report under Section 13 (2) after 13 years is a serious infringement of the valuable right of the accused. The Court below on the same date i.e, on 7.8.2012 rejected the discharge, directed for the second sample to be sent for analysis under Section 13 (2). The C.F.L, report dated 30.10.2012 indicated that the sample of Kattha (Catechu) was not conforming to the provisions of the Act.

Section 13 (1) (2) of the Prevention of Food Adulteration Act, 1954 reads as under:-

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 analyzed by the Central Food Laboratory.

A perusal of the aforesaid provision indicates that upon a receipt of the report of the analysis under sub section (1) that the food sample is adulterated, the Legal Health Authority shall not only file a prosecution on the basis of the report but shall also forward a copy of the report of analyst to the person concerned informing that if it is so desired he can make an application to the Court within a period of 10 days from the date of the receipt of report to get the sample of food kept by the legal health authority analysed by the Central Food Laboratory. It is not disputed that C.F.L. Report for almost 13 years.

The Apex Court in Municipal Corporation of Delhi Vs. Ghisa Ram, AIR (1967) SC 1996 has held that a valuable right is conferred by Section 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the C.F.L, it is to be expected that the prosecution will proceed in such a manner that the right will not be denied. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, the vendor, in his trial, is so prejudice that it would not be proper to uphold his conviction on the basis of the report of the public analyst, even though that report continues to be evidence in the case of the facts contained therein. The Apex Court cautioned that not in every case where the right of the vendor to have his sample tested by the C.F.L, is frustrated, the vendor cannot be convicted on the report. The Court further held that this principle must be applied to only cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible. The said view was reiterated in Girishbhai Dahyabhai Shah Vs. C.C. Jani and others (2009) 15 SCC 64.

The basis of the present prosecution was report of the public analyst dated 3.6.1999 which became the basis for the complaint dated 1.7.1999, the applicant invoked his right under Section 13 (2) of the Act on 20.8.1999, requesting for the sample to be analysed by the C.F.L, which was allowed on 28.8.1999. Almost for 13 years no report under Section 13 (2) was obtained from the C.F.L. Delay was solely attributable to the prosecution. The applicant on 7.8.2012 claimed discharged on the ground that in the absence of any report under Section 13 (2) of the Act, an indefeasible right of the applicant had been infringed, he is liable to be discharged, but the Court below on the same date i.e, 7.8.2012 directed for the second sample to be sent to the C.F.L, for analysis wherein, a report was submitted on 30.10.2012 holding the sample not to be in conformity with the provisions of the Act. Thus in the absence of any report in the light of the order dated 28.8.1999 a valuable right of the applicant under Section 13 (2) stands infringed prejudicing the case of the applicant, to controvert the report of the public analyst, which cannot be remedied by a fresh report under Section 13 (2) after almost 13 years. The present prosecution is a sheer abuse of the process of the Court as there is not even a remotest possibility of there being any conviction on the admitted materials on record and admitted non-complaince of Section 13 (2) of the Act.

The application is allowed.

The proceedings of Complaint Case No. 979 of 1999, Nagar Swasthya Adhikari, Nagar Nigam, Agra Vs. Dinesh Kumar Dubey & Others, under Section 7/16 of the Prevention of Food Adulteration Act 1954 (the Act), P.S. Etmadpur, District- Agra, pending in the Court of A.C.J.M, Ist, Agra are quashed.

Order Date :- 29.8.2017

Rameez