Bombay High Court

The State Of Maharashtra vs Rajkumar Bankelal Gupta & Ors on 23 June, 2017

Bench: S. K. Shinde

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 266 OF 1997


The State of Maharashtra                     ......Appellant
                                             (Orig. Complainant)


         V/s.

1. Shri. Rajkumar Bankelal Gupta
Vendor person incharge at the
time of sampling of M/s. Maruti
General Stores, At post, Apta,
Tal. Panvel, Dist. Raigad.

2. Shri. Radhesham Mevalal Gupta
License Holder and Proprietor
of M/s. Maruti General Stores,
situated at Apta, Tal. Panvel,
Dist. Raigad.                    .......Respondents
                                    (Orig. Accused)

                         *****
Mrs. Geeta Mulekar, APP for the State, appellant.

None for the respondents.


                 CORAM :-         SANDEEP K. SHINDE, J.

                 DATE :-          23 rd June, 2017.



JUDGMENT            :-

1.               The State has preferred this Appeal under




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Section 378 (1) of the Code of Criminal Procedure against

the order of acquittal passed by the Judicial Magistrate

First Class, Panvel on 31 st October, 1996 in Regular

Criminal Case No. 75 of 1994.

2. The Appeal was admitted and notices were

issued to the respondents. Pending appeal, Radheshyam

Nevalal Gupta, respondent no.2 accused died on 29 th

June, 2011 and as such appeal abates against him.

Accused were tried under Section 7(i) read with 2(i)(a),

2(ia), (b), 2(ia) (c) and 2(ia)(h) and 16 of the Prevention

of Food Adulteration Act, 1954 (hereinafter called as "the

said Act").

3. The prosecution case is, that accused no.1 was

in-charge of Maruti General Stores when the sample of

food article "Soyabean oil" was collected, whereas,

accused no.2 was a license holder and the proprietor of

M/s. Maruti General Stores. The complainant visited the

shop on 19th May, 1993 alongwith the panch and after

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disclosing his identity, collected sample of Soyabean oil. It

was divided into three parts and wrapped in the seal by

following the relevant rules. He sent one sealed part of

the sample to the Public Analyst Public Health

Laboratory, Pune by hand delivery on 20 th May, 1993 .

The remaining two, were sent to the Local Health

Authority on 20th May, 1993 by hand delivery. He

received a report of the Public Analyst on 16 th June, 1993

which revealed that the sample drawn from the accused

was "adulterated" within the meaning of the provisions

of the said Act. Thereupon, necessary consent was

obtained and complaint was filed in the Court on 15th

March, 1994. On 16th March, 1994 the complainant,

through Assistant Director, FDA then issued notices to

both the accused as required under Section 13(2) of the

Act and informed about the filing of the complaint. Vide

the very notices, the accused were called upon to

exercise their right to get the sample analysed from the

Director, Central Food Laboratory (CFL), Gaziabad. It

appears, the Learned Judicial Magistrate First Class upon

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receiving the application from the accused, forwarded the

sample to the CFL which was received by CFL on 11 th

January, 1995. The Director, CFL submitted the report

on 28th February, 1995.

4. That both the accused denied the charge

framed against them and claimed to be tried.

5. The Learned trial Judge after appreciating the

evidence acquitted the accused for non-compliance of the

provisions of Section 13 (2-A) and 13 (2-B) of the Act.

6. In the case in hand, the accused exercised

right under Section 13(2) of the Act, vide application

dated 16th April, 1994 whereupon on 21st October, 1994

requisition was sent to the Local Health Authority

requiring it to forward a part of the sample to the Court

for forwarding the same to the CFL. In view of this

request, the Local Health Authority produced the

samples in the Court from 14th November, 1994.

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7. That in terms of the provisions of Section 13

(2-A) of the Act, when an application is made to the Court

under sub-section (2) of Section 13 of the Act, the Court

shall require the Local Health Authority to forward the

parts of the sample by the said Authority and upon such

requisition being made, the said Authority shall forward

the part of the sample to the Court within a period of five

days from the date of receipt of such requisition.

. Admittedly, herein sample was produced in the

Court on 14th November, 1994 i.e. twenty two days after

receipt of the requisition by the Local Health Authority.

This delay was held fatal to the prosecution.

. That in terms of the provisions of Section 13

(2-B) of the said Act after forwarding the samples to the

CFL, the Director of CFL, is required to send the

Certificate, to the Court in prescribed form within one

month from the date of receipt of sample specifying the

result of the analysis. The provisions of Section 13(2-B)

commands report within one month from receipt of the

samples from the Court. Herein, the sample was sent to

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the Laboratory on 29th November, 1994 which was

received by the Central Laboratory on 11 th January,

1995. The Analysis Report at Exhibit-57, however, it is

dated 28th February, 1995. It means the certificate was

submitted by the CFL after one month from the receipt of

sample.

8. Mrs. Mulekar, would urge that since CFL found

the sample was fit for analysis, the delay caused in

transmitting the sample by the Local Health Authority to

the Court and further delay in submitting the report by

the CFL to the Court would not damage the prosecution's

case. She would therefore contend that, the delay caused

in forwarding the sample and in receiving the report was

not fatal to the prosecution's case. In support of her

contention, she has relied on the judgment of the

Supreme Court in the case of T.V. Usman Versus. Food

Inspector, Tellicherry Municipality, Tellicherry, reported

in (1994) 1 Supreme Court Cases page 754. I have gone

through the judgment, wherein the issue was all together

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different, wherein the question fell for consideration was,

the interpretation of Rule 7(3) of the said Rules. It was

held that Rule 7(3) is only a procedural provision meant

to speed up the process of investigation on the basis of

which the prosecution is to be launched. This rule was

interpreted in context of valuable right of accused

conferred under Section 13(2) of the Act and in that

context, it was held that it must be shown that the delay

has led to denial of right conferred on the accused under

Section 13(2) of the Act. In the very judgment, it was

held and clarified, that it all depends on facts of each case

and as such violation of time limit given in sub-rule (3) of

Rule 7 by itself cannot be a ground for the prosecution

case being thrown out.

. In the case in hand, the delay on the part of the

prosecution was post filing complaint, whereas, in the

cited case, the delay was prior to launching the

prosecution. Herein, the following chart would indicate

the delay was caused at every stage during post

launching of prosecution.

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i.       visit by the complainant - 19.5.1993

ii.      first report by the local health Authority-16.6.1993

iii.     Complaint filed - 15.3.2014.

iv.      notice under Section 13(2) - 16.3.2014.

v.       accused exercised rights under Section 13(2)-

16.04.1994.

vi.      requisition was sent to the Local Health Authority-

21.10.1994

vii.     Depositing the sample in the Court- 21.10.1994.

viii. Sample produced in the Court- 14.11.1994.

ix.      sample sent to CFL- 29.11.1994.

x.       samples received by CFL- 7.12.1994., samples were

analysed and date not given.

xi.      report of CFL- 23.12.1994.

xii. Report received by the Court- 28.2.1995.

. By pointing out the dates and events, the

learned Counsel for the appellant submitted, the sample

was collected in May, 1993 but was analysed nearly after

a year and a half. He further submitted that the trial

Court, has rightly dismissed the complaint for non-

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compliance of the provisions of Section 13(2-A) and

13(2-B) of the said Act.

9. I have perused the evidence of P.W.1 and

documentary evidence. Also perused the judgment. It

appears, report of CFL is dated 23rd December, 1994, but

it is not known when sample was tested. Evidence of

P.W.1, however, says CFL report Exhibit-56 was dated

28th February, 1995. It is not explained by prosecution,

firstly, as to when sample was analysed; secondly, if

report is dated 23rd December, 1994, why it was not

forwarded till 28th February, 1995. More so, it was

forwarded after a month from receipt of sample. This

anomaly has not been explained. Likewise, there is

nothing on record to indicate that, while sending the

sample to the CFL, the trial Court followed the procedure

laid down in Section 13(2-B) of the said Act. The said

sub-section (2-B) of Section 13 reads as follows :-

"On receipt of the part or parts of the sample from the Local (Health) Authority

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under sub-section (2-A), the Court shall first ascertain that the mark and seal of fastening as provided in Clause (b) of sub- section (1) of section 11 are intact and the signature or thumb impression, as the case may be, one of the parts of the sample under its own seal to the Director of Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis."

10. In this case, besides delay, the trial Magistrate

before sending the sample to the Central Food Laboratory

did not examine and ascertain that the marks and seals

fastened as provided in Clause (b) of sub-section (i) of

section 11 were intact and the signature of the panchas

were not tampered with. As the trial Magistrate did not

follow the procedure laid down in sub-section 2(b) of

section 13 of the said Act, reproduced above, the report of

the Director, Central Food Laboratory, Ex. 56, could not

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be made the basis for convicting the accused of the

offence punishable under section 7(i) read with section