Delhi High Court
Delhi Administration vs Arun Gupta & Ors. on 20 February, 2019
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20.02.2019
+ CRL.REV.P. 415/2015
DELHI ADMINISTRATION ..... Petitioner
versus
ARUN GUPTA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. Meenakshi Dahiya, Addl. PP for the State
Mr. C.M. Krishna, DLA Food Safety
For the Respondent : Mr. Rahul Shyam Bhandari and Ms. Bhavya Vijay
Tangri, Advs.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner-State impugns order dated 07.12.2009 whereby the
respondent has been discharged under Section 245 Cr. P.C. for the
offence under Section 13(2) to (2D) of the Prevention of Food
Adulteration Act, 1954 (hereinafter referred to as the act).
2. The case of the prosecution is that sample of Khoya Burfi was
lifted on 18.11.1997 and it was tested on 20.11.1997 in the laboratory
at Delhi and presence of fungus was found in the sample.
3. The authorities again got the subject sample tested from another
laboratory at Lucknow, which gave its report dated 20.02.1998
opining the presence of carbonate in the Burfi.
4. Sanction for filing a complaint was received on 19.01.2000 and
the complaint was filed on 31.01.2000.
5. The case of the defense was that since there were divergent
reports of the two laboratories, no charge could have been framed
against the petitioner. It was also contended that respondent had a
right to get the sample tested from a central laboratory under Section
13(2) of the Act. The right to have the sample re-tested was defeated
because the complaint was filed after a gap of over two years.
6. It is submitted that as the right of respondent under Section
13(2) to have the article re-tested was defeated, the entire proceedings
are vitiated.
7. By the impugned order, the trial court notices that there were
divergent views of the Public Analyst; the Public Analyst at Delhi
found fungus in the sample commodity; whereas the Public Analyst at
Lucknow, who tested food article after over two months did not find
any fungus but stated that the article tested positive for carbonate.
8. Trial court further notices that Section 13(2) (e) of the Act
provides that if after considering the report of Public Analyst, the
local health authority is of the view that the report of Public Analyst is
erroneous, the authorities shall forward one part of the sample to any
other Public Analyst. The Trial court notices that from the record no
reason was discernible as to why the sample was sent for re-testing
and why the report of the Public Analyst at Delhi was found to be
erroneous.
9. This Revision Petition was initially filed before the Sessions
Court, however, subsequently this petition was transferred to this
Court.
10. It is an admitted position that sample was lifted on 18.11.1997
and the subject complaint was filed on 31.01.2000 after a gap of over
two years.
11. Section 11(4) of the PFA Act stipulates that any article of food
seized, inter-alia, under Section 4 of Section 10 of the Act shall be
produced before a Magistrate as soon as possible and in any case not
later than seven days after the receipt of the report of the Public
Analyst.
12. Section 13 (2), inter-alia, provides a right to a person who is
prosecuted to be informed of his right to make an application to the
Court within a period of 10 days from the receipt of copy of the report
to get the sample re-analysed.
13. The right provided under Section 13(2) has been held as an
indefeasible right and in case such a right is defeated on account of
delay in filing the complaint, the proceedings are liable to be quashed.
14. Reference may be had to the judgment of the Supreme Court in
'State of Haryana Vs. Unique Farmaid (P) Ltd. & Ors.' (1999) 8 SCC
190 wherein the Supreme Court has held that in order to safeguard the
right of the accused to have the sample tested from a Central
Insecticides Laboratory, it is incumbent on the prosecution to file a
complaint expeditiously so that the right of the accused is not lost.
15. The Supreme Court referred to the judgment in 'State of Punjab
Vs. National Organic Chemical Industries Ltd.' (1996) 11 SCC 613,
wherein the Supreme Court stressed on the need to lodge a complaint
with utmost despatch so that the accused may opt to avail the statutory
defence and if the accused had been deprived of the valuable statutory
right available to him, criminal complaint cannot be permitted to be
proceeded with.
16. Reference may also be had to the judgment of the Supreme
Court in 'Municipal Corporation of Delhi Vs. Ghisa Ram' (1967) 2
SCR 116, wherein the Supreme Court has held that in every case,
where the right of the vendor to have his sample tested by the Director
of the Central Food Laboratory is frustrated, the vendor cannot be
convicted on the basis of the report of the Public Analyst.
17. Keeping in view of the law as laid down by the Supreme Court
and also the fact that there was a substantial delay in lodging the
complaint resulting in the right of the vendor to have his sample tested
by the Director of Central Food Industries, I am of the view that the
trial court has rightly discharged the respondent. The prosecution in
the facts of the present case cannot be permitted to continue.
18. In view of the above, I find no merit in the petition. The petition
is accordingly dismissed.
19. Order dasti under signatures of the Court Master.
FEBRUARY 20, 2019 SANJEEV SACHDEVA, J
'rs'
