Bombay High Court
Gowardhan S/O Fagumal Lalwani And ... vs The State Of Maharashtra, Through ... on 16 January, 2018
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.57/2016
1. Gowardhan s/o Fagumal Lalwani,
aged 44 years, Vendor and Partner of
Firm Applicant No.4, r/o Sawarkar Peth,
Yavatmal (Original accused no.1)
2. Santoshkumar Fagumal Lalwani,
aged 55 years, Partner of Applicant No.4,
r/o Sawarkar Peth, Yavatmal
(Original accused no.2)
3. Rajesh Santoshkumar Lalwani,
aged 40 years, Partner of Applicant No.4,
r/o Sawarkar Peth, Yavatmal
(Original accused no.3)
4. M/s Kisanlal Gehimal and Co. Sawarkarpeth,
Yavatmal (Original accused no.5)
5. Sacchanand Hiralal Lalwani,
aged about 49 years, Proprietor,
M/s. Prabhu Corporation, Hanuman Akhada
Chowk, Yavatmal (Original accused no.6)
6. Sanjay Pandharinath Bhawsar,
aged about 45 years, Nominee, Anand Mohta
Agro Industriers, Pachgaon, Umrer Road,
Nagpur (original accused no.7)
7. Anand Mohta Agro Industries,
Panchgaon, Umrer Road, Nagpur
(Original accused no.8) .....APPLICANTS
...V E R S U S...
State of Maharashtra through
its Food Inspector Shri Jayant Ramdas
Wane, Food and Drug Administration,
(M.S. Yavatmal) ...NON APPLICANT
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Mr. C. F. Bhagwani, Advocate for applicants.
Mr. T. A. Mirza, A.P.P. for non applicant-State.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 16.01.2018
J U D G M E N T
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of the parties.
Heard Mr. C. F. Bhagwani, learned counsel for the
applicants and Mr.T. A. Mirza, learned A.P.P. for non applicant-State.
2. By the present application under Section 482 of the Code
of Criminal Procedure, the applicants are challenging the judgment
and order passed by learned Chief Judicial Magistrate, Yavatmal
dated 02.06.2012 in Criminal Case No.243/2006 together with
judgment and order passed by learned Additional Sessions Judge,
Yavatmal in Criminal Revision No.65/2012 dated 17.08.2015 by
which the learned revisional Court dismissed the revision and
thereby confirmed the order passed by the learned Chief Judicial
Magistrate, framing the charge against the applicants for an offence
punishable under Section 7(i) read with Section 2 (ia) (a) punishable
under Section 16 (1) (a) (ii) and Section 17 (i) (a) (ii) and Section
17 (i) (b) and Section 7 (1) read with Sections 2 (ia) (m) punishable
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under Sections 16 (i) (a) (1) read with Section 17 (1) (a) (ii) and
Section 17 (1) (b) of the Prevention of Food Adulteration Act, 1954.
3. The applicant nos.1, 2 and 3 are partners of applicant
no.4. They are shown as accused nos. 1, 2, 3 and 4 respectively in
Regular Criminal Case No. 243/2006. The applicant no.5 is accused
no.5 and is Proprietor of firm M/s. Prabhu Corporation whereas the
applicant no.5 is original accused no.6 who is proprietor of accused
no.7-Anand Mohta Agro Industries.
4. The Food Inspector, S. D. Salunke has visited the firm
M/s. Kisanlal Gehiram & Co.-applicant no.4 along with two
independent witnesses. That time, accused no.1 was present in the
shop and was transacting the business. The Food Inspector
demanded and purchased sample of Vanaspati (Mohta), 9 sealed
similar packs from applicant no.1 from the stock of 160 sealed
packages each of 100 gms. having identical label and batch no.P003
on APR.04 and was best before 6 months from the packaging. The
purchase was made on 24.09.2004.
Thereafter the Food Inspector gave Form no. VI to the
applicant no.1. He divided Vanaspati into three equal parts and each
part was filled in plastic bottles and the samples were sent to the
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Public Analyst, Public Health Laboratory, Amravati for test and
analysis on 27.09.2004. The Public Analyst sent his report dated
21.10.2004 and reported that the sample is not of the standard.
Thereafter, consent was obtained from Joint Commissioner, Amravati
for prosecution of the accused and the said was given on 18.04.2006.
The prosecution was launched on 31.05.2006.
5. The applicant no.2/accused no.3, after his appearance, on
12.07.2006 exercised option under Section 13 (2) of the Prevention
of Food Adulteration Act (hereinafter referred to as the "Act"). The
sample was sent to the Central Food Laboratory on 08.01.2008. On
18.02.2008, certificate from Central Food Laboratory was obtained
which shows that the sample was not in conformity with the
standards.
Thereafter the trial has proceeded and the Food Inspector
was examined before charge. After hearing the learned counsel for
the applicants, the learned Chief Judicial Magistrate on 02.06.2012
framed the charge. It was questioned before the revisional Court and
the revision was dismissed.
6. It is the submission of the learned counsel for the
applicants that the entire complaint itself is required to be dismissed
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and consequently the order of framing of charge is also required to
be set aside in view of the law laid down by this Court in Charandas
Mariwala and ors. .vs. The State of Maharashtra; Criminal
Application No. 1842/1996 delivered on 10.07.2014 which is
followed by this Court in M/s. Indofil Chemicals Company Ltd. &
Ors. .vs. State of Maharashtra; reported in 2015 (1) FAC 75
.
7. Admittedly, in the present case, the sample was taken on
24.09.2004. Even it is not disputed that the product which was
seized was showing best before six months from the packaging. The
packaging was done in April-2004. The consent was obtained after
1½ years of taking sample. The prosecution was launched on
31.05.2006. Though the accused no.2 has exercised an option under
Section 13 (2) of the Act, in my view, it was in futility since it was
after the period of two years from the date of packaging.
8. In the present case, admittedly, the shelf life of the
product was four months and from the dates as mentioned in the
preceding paragraphs, it is clear that the consent was obtained after
1 ½ years.
The delay for launching the prosecution is solely
attributable to the prosecution only. It is to be stated that Section 13
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(2) of the Act states that the report of the Public Analyst is to be sent
to the person from whom the sample is taken after institution of the
prosecution. The matter is not res integra in view of the decision in
State of Maharashtra .vs. Bhagvandas Gopaldas Bhate; reported
in 1977 (1) FAC 123 that without instituting the prosecution its of
no use to serve the Public Analyst's report to the accused.
In the present case, the prosecution was launched on
31.05.2006 i.e. after shelf life of the product was over.
9. In my view, in order to avail the indefeasible right
available in view of Section 13 (2) of the Act, the complainant was
under obligation to launch the prosecution as early as possible and in
any case before four months from the date of the manufacture.
Allowing to lapse the said period and launching the prosecution
nearly after 1 ½ years is nothing but an act on the part of the
complainant to nullify the indefeasible right to the accused persons.
10. In that view of the matter, the complaint itself is required
to be quashed and set aside. Consequently, following order is passed.
ORDER
(i) Criminal Application No.57/2016 is allowed.
(ii) Criminal Complaint Case No.243/2006 pending on the
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file of Chief Judicial Magistrate, Yavatmal is hereby quashed and set
aside.
(iii) Consequently, order passed by the Chief Judicial
Magistrate on 02.06.2012 framing the charge and confirmed by the
Additional Sessions Judge, Yavatmal on 17.08.2015 in Criminal
Revision Application No. 65/2012 is also quashed and set aside.
Rule is made absolute in the above terms.
JUDGE
kahale
