Bombay High Court
Manoj Parshwanath Durungkar vs The State Of Maharashtra And Anr on 26 September, 2016
Bench: V.K. Jadhav
wp692.07
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 692 OF 2007
Manoj S/o. Parshwanath Durungkar,
Age 42 years, Occ. Owner of shop
M/s. Bharat Kirana Stores,
R/o. Near Old Bus Stand,
Tq. Shirur Anantpal, Dist. Latur. ... Petitioner
VERSUS
1.
The State of Maharashtra,
(Food & Drugs Department,
Mantralaya, Mumbai.)
2. The Food Inspector,
Shri. Talijadas Chandidasrao Boralkar,
C/o. Asst. Commissioner Office,
The Food and Drugs Department,
Adm. Building, Latur. ...Respondents
...
Advocate for Petitioner : Mr. A.H. Kasliwal h/f Ms. Netrali Jain
APP for Respondents : Mr. A.R. Kale
.....
CORAM : V. K. JADHAV, J.
DATED : 26th SEPTEMBER, 2016
ORAL JUDGMENT:-
1. By this petition, the petitioner original accused is seeking
quashment of R.C.C. No. 106 of 2007 pending before the learned 2 nd
J.M.F.C. Nilanga.
2. Brief facts giving rise to the present writ petition are as follows:-
::: Uploaded on - 28/09/2016 ::: Downloaded on - 30/09/2016 00:46:08 :::
wp692.07
-2-
a) Respondent No.2 Food Inspector has filed a complaint bearing
R.C.C. No. 106 of 2007 before J.M.F.C. Nilanga on 10.5.2007. It has
alleged that on 12.10.2006 at about 5.55 p.m. the complainant visited
the shop of accused and purchased the samples of "Yentop
Vanspati Ghee". The said packet was bearing batch No. 560. It was
packed in September, 2006 with remark "best before 6 months". The
sample so obtained was divided into 3 packets and it was sent to the
public analyst at Pune on 13.10.2006. The second specimen seal
was put and also sent to public analyst, Pune. On 6.12.2006 report
of the public analyst was received. In the said report, it is disclosed
that the same sample did not confirm to the standard of vanaspati
ghee as per the provisions of Prevention of Food Adulteration Rules
1955. As such, respondent No.2 has filed criminal complaint before
the Court. Hence, this criminal writ petition.
3. Learned counsel for the petitioner submits that the report of
public analyst nowhere discloses adulteration nor it is stated in the
report that it is unfit for human consumption or it is injurious to health.
The complaint before the Court was filed 5 months after receipt of
report of public analyst. The shelf life of the product expired in the
month of Feb. 2007. In view of Section 13(2) and Rule 7(3) of the
Prevention of Food Adulteration Act and the Rules, the petitioner
::: Uploaded on - 28/09/2016 ::: Downloaded on - 30/09/2016 00:46:08 :::
wp692.07
-3-
accused lost his right to request the Court to forward the said sample
for analysis to Central Laboratory.
Learned counsel in order to substantiate his submissions,
places reliance on the judgment of the this court in the case of Smt.
M. Sarojini Ammal and others vs. State of Maharashtra and
another (Criminal writ petition No. 499 of 2007 and other connected
matter, decided on 27.4.2012), wherein this Court, relying upon the
judgments of Hon'ble Supreme Court in the case of Municipal
Corporation of Delhi Vs. Ghisa Ram (AIR 1967 S.C. 970) and
further in the case of Shivkumar @ Shiwalamal Narumal
Chugwani & Ors. vs. State of Maharashtra, reported in 2010 (3)
Bom.C.R. (Cri.) 103, observed that the petitioners therein lost their
valuable right of getting the food articles examined/analyzed and in
that way lost the opportunity to make an attempt to prove that the
article was not adulterated at all. This Court has also taken a view
that in such case the continuation of prosecution wherein such a
serious prejudice has been caused to the accused, would be an
abuse of process.
4. I have also heard learned A.P.P. for the respondent State.
5. In the instant case, even though respondent No.2 complainant
::: Uploaded on - 28/09/2016 ::: Downloaded on - 30/09/2016 00:46:08 :::
wp692.07
-4-
has received report of the public analyst on 6.12.2006 i.e. prior to
expiry of shelf life of the product, filed a complaint before the Court
on 10.5.2007. Precisely the complaint came to be filed before the
Court five months after receipt of report of public analyst. The shelf
life of the said product admittedly expired in the month of February,
2007. Thus, the view taken by the Apex Court in the case of
Municipal Corporation of Delhi (supra) and Shivkumar @
Shiwalamal Narumal Chugwani & Ors. (supra) and view taken by
this Court in the aforesaid criminal writ petition No. 499 of 2007,
squarely apply to the facts of the present case. Learned A.P.P. has
fairly admits this legal position. Hence, I proceed to pass the
following order:-
ORDER
I. Criminal writ petition is allowed in terms of prayer clause
"B".
II. Writ petition is disposed of. Rule made absolute in the
above terms.
( V. K. JADHAV, J.)
rlj/
