Bombay High Court
Pramod Narayanrao Dawale And Anr. vs Food Inspector And Anr. on 4 May, 2005
Equivalent citations: 2006 FAJ 238
Author: J A.H.
Bench: J A.H.
ORDER
Joshi A.H., J.
1. The accused-applicant who has been tried for the offences under the provisions of Prevention of Food Adulteration Act, 1954, preferred to challenge the grievance of report of analyst of food stuff subject-matter. For raising the challenge as contemplated by Section 13, Sub-section (2), he submitted the application, copy thereof is at (ANNEXURE-A). In this application, he prayed for forwarding the sample for further analysis at the costs of the complainant-State.
2. The complainant/prosecution opposed the application on the ground that it was the duty of accused to pay for the fee required for analysis of the sample by the Central Food Laboratory.
3. The application filed by the accused was rejected by the trial Court by order dated 2-11-2002. The order of rejection is based on the ground that the amount was already ordered to be paid, however, the accused has failed to pay the same. The present applicant has not placed on record copy of the order passed below Exh. 5.
4. The accused persons carried the revision against the order passed below Exh. 5 on 21-10-2002 which was registered as Criminal Revision No. 136 of 2002. This revision application has been dismissed by the incharge Sessions Judge, Buldana, by order dated 30-11-2002.
5. The learned Sessions Judge has recorded in his judgment that:
Heard both sides. The learned Public Prosecutor pointed out that there is no clear provision in the said Act or Rules as to who should bear the expenses for sending the sample to Central Food Laboratory. However, the Public Prosecutor submitted that this is an opportunity given to the accused to challenge the report of public analyst, if he wants to challenge it, he should beat the expenses, he submitted that in food adulteration cases, it is not the case that the accused who is a businessman is a poor person and who cannot afford such charges. Considering his submission following order is passed.
The petitioner did not pointed out any illegality in the impugned order, and hence, I do not find any necessity to interfere in it and therefore, I reject the revision petition.
6. Thus, the case proceeds on the foundation that there is no provision in law prescribing as to who shall pay the fees. It is seen the Rule 4 of Prevention of Food Adulteration Act, 1954 provides for different rates of fees and even these rules do not prescribe as to the person who shall pay it and it only prescribes the procedure of forwarding the samples.
7. Section 13 Sub-section (2) provides for a procedure which can be considered to be a sort of two tired facility. It fastens a duty on the 'Local (Health) Authorities' that it shall after institution of prosecution against the person from whom a sample of article of food was taken and the person if any whose name, address and other particulars have been disclosed under Section 14-A forward in such a manner as may be prescribed, a copy of report of such result of analysis to such person or persons 'informing such persons or persons' that if he so desires, may make an application to the Court within a period of 10 days from the date of receipt of copy of the report to get the sample of the article of food kept by the Local (Health) Laboratory analysed by Central Food Laboratory.
8. Sub-section (2-A) of Section 13 fastens a duty on the Local (Health) Authorities to forward the sample kept by the said authority for analysis when application is made to the Court under Section 13(2) and when requisitioned by the Court within 5 days of such requisition.
9. The scheme contained in Section 13 does not fasten or attach any duty or liability on the accused persons to undertake any function including payment of fees. All that the accused are required is to raise a challenge to the report received under Sub-section (2) within 10 days from the date of receipt of the copy of the report, by determining reference for further analysis.
10. The special weightage has been attached to the report of Central Food Laboratory as can be seen from Sub-section (3) of Section 13 which says that:
(3)...The certificate issued by the Director of the Central Food Laboratory [under Sub-section (2-B)] shall supersede the report given by the public analyst under Sub-section (1).
This special provision attaching special weightage shall be rendered contingent upon the payment of fees by the accused. Moreover, the scheme of Section 13 does not contain disqualification or attach a conditional finality to the certificate of Regional Laboratory depending upon whether the accused fails to make the payment.
11. One more plea was represented by the accused applicant is that, earlier is Reg. Cri. Case No. 90 of 1996, the Judicial Magistrate, First Class, Malkapur had taken a contrary view and directed the prosecution to pay fees.
12. The applicant has also placed reliance on the following judgments.
(1) All India Prevention of Food Adulteration Journal VIII-1987, Ram Pyare v. The Nagar Swasthya Adhikari, Nagar Mahapalika F.A.J. VIII-1987.
(2) 1988 Cri.L.J. NOC 24(Cal.), Akkel Ali Mondial v. State of West Bengal 1988 Cri.L.J. NOC 24 (Cal.).
13. In view of the discussion made herein above, there are no reasons as to why any different view than the view taken by Allahabad High Court should be taken, more particularly, in the light of analysis of Section 13 done by this Court in para 10 above. In the result, Criminal Application succeeds.
14. Rule is made absolute. Order dated 5-11-2002 passed by the J.M.F.C. below Exh. 5 is set aside and the prosecution is directed to beat the fees payable to Central Laboratory.
15. It is noticed that in many cases, cases under Prevention of Food Adulteration Act and various similar enactments where the challenge procedure to the State Laboratory's report is provided for as in Section 13(2) of Prevention of Food Adulteration Act, however, law is silent as to who shall pay the fee for analysis by Central Laboratory. Due to this ambiguity, however, the duty issuing notice to the accused as well, substantial time is wasted in deciding the issue as who shall pay the fees. In this process of debate considerable time is lost and the sample either looses its validity/worthiness for analysis and the contents of sample are rendered spoilt. Consequently, a reference to central laboratory is rendered futile or infructuous and finality attached to the report of State Laboratory is destroyed. This situation which generally prevails can be mitigated by requiring the complainant/prosecution to forward the sample at own cost upon recourse by accused to the challenge procedure under Section 13(2) of Prevention of Food Adulteration Act or similar provision. This will prevent the Criminal Justice being destroyed at the sweet choice of accused or unholy union of accused with officers of complainant authority. A copy of this judgment be sent to Principal Secretary, Law & Judiciary Department as well as Principal Secretary to Civil Supplies for proper implementation of procedure as to depositing of fee and required authorization to Local Officers dealing with such matters.
