Prataprao S/O Punjaram ... vs State Of Maharashtra Through Food ...
2003 Latest Caselaw 155 Bom

JUDGMENT

S.T. Kharche, J.

1. Rule taken up for final hearing with the consent of the parties.

2. Heard Shri Laghate, learned Counsel, for the applicant, Mr. Ahirkar, learned A.P.P., for respondent No. 1 and Mr. Patil, learned Counsel, for respondent Nos. 2 to 4.

3. Both these applications involve common question of law and facts and they are being disposed of by this common judgment. In both these applications, the inherent power of this Court is sought to be invoked under Section 482 of the Code of Criminal Procedure for quashing the prosecution of the applicant for the offences punishable under Sections 7(1) read with Section 16(1)(a)(ii) and Section 16(1)(a)(i) read with Section 7(1) and read with Rule 50 of the Prevention, of Food Adulteration Act and Rule (for short the Act and the Rule).

4. Brief facts are required to be stated as under :

On 15.12.1991 Shri S.B. Naragude, Food Inspector, visited Dr. Babasaheb Ambedkar Backward Boys' Government. Hostel. Chikhali (for short the Hostel), and took a sample of 450 grams of groundnut oil as well as sample of 600 grams of chilly powder from the Warden of the above Hostel. On enquiry, the Warden disclosed that the said articles were supplied by Manila Arthik Vikas Mabamandal (for short M.A.V.M.L.) Ltd., Amravati, where the applicant was working as Regional Manager. An enquiry was made with the applicant and it was revealed that the food articles were purchased by respondent Nos. 2 and 3 from respondent No. 4. The samples of both the food articles were sent to Public Analyst for examination and analysis. The report of the Public Analyst dated 14.1.1993 revealed that the sample of groundnut oil is adulterated. Similarly, the report, of the Public Analyst dated 25.1.1993 would reveal that the sample of Mirehi powder was also adulterated. On 3.2.1993 a letter was sent by the Local Health Authority, Buldana, to the Food Inspector to send the proposal as early as possible for consent. On 27.5.1993 the proposal was sent to the Joint Commissioner, Food and Drug Administration, Amravati, and the consent was accorded on 10.6.1996. The Food Inspector was directed to file prosecution at the earliest and, therefore, criminal complaint was filed against respondent Nos. 2 to 4 in the Court of Chief Judicial Magistrate, Buldana.

5. The applicant/original accused No. 1 had filed an application seeking discharge in the Court of Chief Judicial Magistrate, Buldana, which was partly allowed discharging original accused Nos. 1 to 4 for the offence punishable under section 16(1(a)(i) read with Section 7(1) of the Act and directing that the case to proceed against original accused No. 1 for the offence punishable under Section 16(1)(a)(ii) read with Section 7(iii) of the Act and under Rule 50 of the Rules.

6. Being aggrieved by this order, the applicant preferred revision in the Sessions Court and the learned Sessions Judge by an order dated 5.10.1998 allowed Criminal Revision No. 11 of 1998 and dismissed Criminal Revision No. 190 of 1997 and the order of discharge of original accused Nos. 1 to 4 passed by the Chief Judicial Magistrate for the offences punishable under the Act was set aside and the applicant was directed to appear in the Trial Court. It is this order that has been challenged in the present application.

7. The learned Counsel for the applicant contended that the M.A.V.M.L., which is a Company registered under the Indian Companies Act and is a Government undertaking, has not been made an accused in these proceedings and the Joint Director of Food and Drug Administration did not accord consent for prosecution of this institution. He contended that unless this institution is prosecuted, the prosecution against the applicant, who is a Regional Manager, cannot be sustained. The learned Counsel further contended that original accused Nos. 2 and 3 are the Mukhtiyar and Proprietor of M/s. Navneet Stores and they had directly supplied the food articles to the Hostel. The original accused Nos. 2 and 3 had purchased the food articles from respondent No. 4 who is the Proprietor of M/s. Kothari Provisions. The original accused Nos. 2 and 3 were duty bound to supply the goods of standard quality and hence the applicant is not liable for prosecution because of the Warranty which the dealer is supposed to give while selling the goods.

8. The learned Counsel further contended that the M.A.V.M.L. is mainly responsible for not obtaining the licence under Rule 50 of the Rules and the applicant, who is the Regional Manager, cannot be held to be liable for not obtaining the said licence and hence no case has been made out. against him.

9. The learned Counsel for the applicant contended that the Court of Chief Judicial Magistrate at Buldana has no jurisdiction to hold the trial because the food articles, of which the samples were obtained by the Food Inspector, were manufactured at somewhere else and, therefore, on this count also, the impugned order passed by the learned Sessions Judge cannot be sustained. He further contended that there was a delay of about four years in filing the charge-sheet and, therefore, the applicant has been deprived of exercise of his right under Section 13(2) of the Act and this has caused serious prejudice. He, therefore, contended that the prosecution of the applicant is liable to be quashed.

10. The learned Addl. Public Prosecutor, on the other hand, fully subscribes to the impugned order passed by the learned Sessions Judge and contended that prima facie case has been made out against the applicant for the offences with which he is charged. He further contended that the report of the Public Analyst from the Central Food Laboratory clearly shows that the samples of food articles collected by the Food Inspector were adulterated. He also contended that the M.A.V.M.L. admittedly was not holding any licence to supply the food articles and, therefore, the prosecution of the applicant, who is the Regional Manager of that institution, is not bad in law.

11. The learned Counsel for respondent Nos. 2 to 4 contended that the order passed by the learned Chief Judicial Magistrate is sustainable in law inasmuch as there is no material on record to make out a prima facie case against them for the offences with which they are charged. He contended that the impugned order passed by the learned Sessions Judge is neither correct nor legal.

12. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the respective parties and I am of the considered view that the impugned order passed by the learned Sessions Judge cannot be said to be illegal. In fact, on perusal of the said order, it would clearly reveal that he has considered the contentions of both the parties and has come to the conclusion that the order passed by the learned Chief Judicial Magistrate directing discharge of original accused Nos. 1 to 4 was erroneous.

13. It is not disputed that the applicant is working as a Regional Manager in M.A.V.M.L. at Amravati and the food articles were supplied at the instance of the institution through him. The food articles were supplied to the Hostel. If is not disputed that the said institution was not holding any licence for the supply of the food articles as is required under Rule 50 of the Rules and. therefore, it was none of the business of the said institution muchless the Regional Manager to supply the food articles which were found to be adulterated. In that view of the matter, it is not. possible to accept the contention of the learned Counsel for the applicant that without prosecution of the said institution, the prosecution of the applicant in the capacity of the Regional Manager would be bad in law.

14. The next contention of the learned Counsel is that the applicant has been deprived of his right to get the sample of food articles tested through the Central Food Laboratory and hence serious prejudice has been caused to him.

15. In order to appreciate this contention. I think it proper to reproduce Section 13(2) of the Act :

13(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 often 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 analysed by the Central Food Laboratory.

Bare reading of this provision, it would reveal that the accused has to exercise his right to get the sample of food articles tested through Central Food Laboratory by making an application within a period often days from the date of receipt of the copy of the report and secondly such application has to be made to the Court after the institution of the prosecution. In the present case, it is contended that applicant had made such application in the Lower Court but subsequently it was withdrawn. No reasons have been disclosed as lo why the said application was withdrawn. The applicant himself cannot presume that the samples of food articles produced in the Court were not fit for analysis. If the samples would have been sent to the Central Food Laboratory the Analyst was bound to give a report and then there would have been evidence available to show that the samples of food articles were not fit to be analysed because of the delay.

16. I may usefully refer the ratio laid down by the Apex Court in the case of Ajit Prasad Ramkishan Singh v. State of Maharashtra wherein it was held (i) that in absence of any application by the accused under Section 13(2) for getting the sample analysed by the Director, the accused could not complain that he was deprived of his right to have the sample analysed by the Director: and (ii) mere delay and laches on the part of the complainant in getting the summons served was not, in the absence of evidence to show that the sample had deteriorated when the summons was served, sufficient to hold that the accused was prejudiced by reason of deprivation of the right under Section 13(2). This ratio is squarely applicable to the present prosecution and only because there was a delay in the presentation of the charge-sheet, it cannot be said that prejudice has been caused to the applicant by reason of deprivation of the right under Section 13(2), Therefore, the contention of the applicant's counsel that serious prejudice has been caused to the applicant is totally misconceived.

17. The next submission of the learned Counsel for the applicant is that the Court of Chief Judicial Magistrate at Buldana had no jurisdiction to hold the trial and in support of this contention he relied on a decision of Single Bench of Madhya Pradesh High Court in the case of Mohammad Ahmed Khan v. State 2001 F.A.J. 391 and also on a decision of Single Bench of this Court in Shivraj Tobacco Company and Ors. v. State of Maharashtra 1982 (1) F.A.C. 313. The ratio laid down in both these decisions is that when only manufacturer company or its employee is sought to be prosecuted, then the prosecution can be launched at the place where the manufacturing activity is being carried on. In the present case, there is no material on record from which an inference can be drawn that the food articles which were supplied to the Hostel were manufactured at Amravati and, in such circumstances, it is obvious that the aforesaid authorities have no bearing on the facts and circumstances of the present case.

18. Section 177 of the Code of Criminal Procedure contemplates as under:

177. Ordinary place of Inquiry and trial - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

19. It is pertinent to note that the point of jurisdiction was not raised before the learned Sessions Judge. In view of the aforesaid provisions of law, the contention of the learned Counsel for the applicant that the Court at Buldana has no jurisdiction is totally misconceived and cannot be accepted. The offence was committed at Buldana, hence that Court alone will have jurisdiction.

20. Thus, viewed from any angle, it would reveal that the impugned order passed by the learned Sessions Judge is sustainable in law inasmuch as it cannot be said that there is no material on record prima facie to make out a case for prosecution against, the applicant for the offence with which he is charged. It is settled law that the inherent powers of this Court could be exercised under Section 482 of the Code of Criminal Procedure only when it is shown that continuation of the criminal prosecution would be an abuse of process of law or otherwise to secure the ends of justice. In absence of any material to show that prima facie case has not been made out, it would not be proper for this Court to interfere in the findings recorded by the learned Sessions Judge and I am of the considered view that the said order deserves to be upheld. In the result, both the criminal applications are hereby dismissed. Rule discharged.

The copy of this order be retained in Criminal Application 891 of 1999.