Allahabad High Court
Mahesh Chand vs State Of U.P. And Another on 31 October, 2013
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgement Reserved on 30.8.2013 Judgement Delivered on 31.10.2013 Crl. Misc. 482 Cr.P.C. Application No. 17518 of 2013. Mahesh Chand .... Applicant. Versus State of U.P. & another ... Opp. Parties. Connected with Crl. Misc. 482 Cr.P.C. Application No. 17519 of 2013. Mahesh Chand .... Applicant. Versus State of U.P. & another ... Opp. Parties. Hon'ble Ramesh Sinha, J.
1.Heard Sri Sanjay Agrawal, learned counsel for the applicant and Sri Vikas Sahai, learned A.G.A. for the State.
2.By means of present 482 Cr.P.C. application, the applicant has prayed for quashing the order dated 18.2.2010 as well as prosecution of the applicant in Complaint Case No.787 of 1994 and Complaint Case No.786 of 1994 F.I. Vs. Mahesh Chand under Section 7/16 Prevention of Food Adulteration Act, police station New Agra/Hari Parvat, district Agra pending before the A.C.J.M.-Ist, Agra.
3.The prosecution case in brief is that the accused-applicant Mahesh is the manufacturer of mustard oil. The complainant raided the premises of the applicant on 22.5.1993 . He took sample of "Mustard Oil" from the premises of the factory of applicant. He also gave a notice under Section 11 Ka of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as PFA Act) to the applicant. He has taken the said 'Mustered Oil' for analysis. After dividing the said sample in three parts, he sealed and labeled each part in the presence of the applicant. He has submitted one part for analysis and retained the second and third part in the office of Local Heath Authority, Agra.
4.The sample in question was sent to the Public Analyst. Form 6 and 7 was prepared in accordance with the Rules framed under the PFA Act, 1954 and one part of the sample was sent to the State Public Analyst Lucknow, who submitted its report dated 26.6.1993 mentioning that "Namoone me arzimone tel ka paricchan nischayatmak hai". On receiving the said report, the Food Inspector Agra filed a complaint under Section 7/16 of the PFA Act, 1954 in the Court of Magistrate-Ist Class Agra on 28.4.1994. Finding the sample adulterated under Section 2 of the Act and also took prior consent of the Chief Medical Officer Agra for launching prosecution against the applicant for contravention of Section 7 of the PFA Act, 1954 for committing an offence under Section 16 of the said Act. On 28.4.1994, the learned Magistrate registered the complaint and took cognizance of the offence and summoned the applicant for trial. The applicant received an information from C.M.O. On 11.5.1994 that the sample of mustered oil which was sent for analysing was found to be adulterated. On 18.5.1994, the accused applicant filed an application under Section 13 (2) of the PFA Act for calling the second sample from the C.M.O. Agra which was taken by the Food Inspector on 22.5.1993 and be sent for analysis to the Central Food Laboratory which was allowed by the Magistrate on 8.8.1995 directing the Local Health Authority to send the second sample by fixing 8.9.1995 as next date. The second sample was repeatedly summoned by the trial court from the Local Health Authority Agra but the same did not reach the court till 18.1.2010. On 18.2.2010 an application was moved by the applicant for exempting his personal appearance through counsel but the trial court rejected the application u/s 13(2) of the applicant on the ground that none is present to press the said application, hence rejected it and fixed the case for evidence u/s 244 Cr.P.C fixing 17.4.2010. It is submitted by the learned counsel for the applicant that the trial court had already exempted the personal appearance of the applicant and the applicants counsel was present to press the application u/s 13(2) of the P.F.A Act but the order of the trial court rejecting the application on the ground that none is present to press the application dated 18.5.1995 is illegal. Thereafter several dates were fixed for evidence u/s 244 Cr.P.C. but the prosecution did not produce it's witness till date.
5.It is further urged that till date the sample has not reached the trial court in pursuance of the order dated 8.8.1995, therefore, there was no question of depositing the cost by the accused. It was further submitted that the trial court had been fixing dates after dates but till date the second sample has not reached the court, hence the order dismissing the application of the applicant is wholly arbitrary and illegal. Learned counsel for the applicant submits that it has been held by the Apex Court in the case of State of Gujrat and another vs. Shailash Bhai Mansukh Lal Shah and others reported in (2007) 7 SCC 71 that "The omission of the words on payment of the prescribed fee in new Section 13 (2), in context, only means that payment is no longer a condition precedent for making an application for second analysis. Under new Section 13 (2) the applicant can make the payment, after the application is allowed by the court. The sample however will be sent by the court to the CFL only on deposit of the prescribed fee.
6.It was further pointed out that the Public Analyst has submitted its report on 26.6.1993 and the application under Section 13 (2) of the Act was filed by the applicant within the specified time, i.e., on 18.5.1994 but the sample in question had not reached the Court till 17.4.2013, hence the valuable right of the applicant provided under Section 13 (2) of the Act for getting the sample retested by the CFL has been infringed, hence no fruitful purpose will be served out for continuing the prosecution of the applicant, He submitted that the trial court without getting the second sample retested by CFL has fixed the cases for evidence u/s 244 Cr.P.C which is absolutely illegal, hence the same be quashed.
7.On the other hand, learned A.G.A. has vehemently opposed the prayer for quashing but he could not dispute the fact that the second sample has not reached the court from the Local Health Authority Agra till date and the case has been fixed for producing evidence u/s 244 Cr.P.C without getting the second sample retested by the CFL.
8.Considered the submissions of learned counsel for the parties and perused the record.
9.From a perusal of the record, it is apparent that though the sample in question was taken by the Food Inspector on 16.7.1999 and the report of the Public Analyst was received on 13.8.1999 in which it is stated that the sample of 'Mustered Oil' in question was found to be adulterated.
10.The applicant has moved an application under Section 13 (2) of the PFA Act on 18.5.1994 for getting the sample retested by the CFL which was rejected by the trial court on 18.2.2010 and the case was fixed for evidence u/s 244 Cr.P.C. and second sample summoned from the Local Health Authority had not reached the court till date. The order dated 18.2.2010 passed by the trial court rejecting the application u/s 13(2) of the PFA Act for none prosecution without taking into account that the second sample which has been summoned by it on the application dated 18.5.1994 u/s 13(2) of the Act of the applicant has not reached the Court till 18.2.2010 and the court fixed the case for prosecution evidence u/s 244 Cr.P.C. and further the Court was ordering for depositing of the prescribed fee by the applicant which was not at all justified. There also appears to be a gross negligence on the part of the Local Health Authority for not sending the second sample to the court in spite of it's repeated orders and the trial court was also fixing dates calling for the second sample and giving easy adjournments on the said ground and in this process 16 years have elapsed. This shows the callousness on the part of the Local Health Authority for not sending the second sample to the court.
11.The Court is surprised and shock to note about the manner in which the prosecuting agency appear to have colluded with the applicant and has been lingering on the proceedings by keeping it pending for the last 16 years and neither the prosecuting agency nor the trial court had taken serious steps calling upon the Local Health Authority and the Chief Medical Officer Agra to explain as to why the second sample was not sent to the court in spite of its repeated orders. The Court vide order dated 22.5.2013 has directed the Presiding Officer of the trial court to explain the manner in which the case has been lingering on for such a long period for the disposal of application under Section 13 (2) of the PFA Act.
12.The explanation was submitted by the Presiding Officer to the Court vide letter dated 27.5.2013 which is on record it has been submitted by the trial court that the accused applicant was required to submit a draft of Rs. 1,000/- as a prescribed fee for getting the sample retested by the CFL but he did not deposit the said draft and further the second sample which was summoned by the trial court from the Local Health Authority was not made available, hence last opportunity was provided to the prosecuting agency to make available the second sample. The Presiding Officer also submits in his explanation that the funds were also not made available by the State Government for which a letter was also written to the Food Commissioner U.P. Lucknow and several letter to the Local Health Authority for making available the second sample but in spite of the said fact neither the sample in question was made available nor the requisite fee was deposit either by the State Government or by the applicant.
13.After perusing the explanation furnished by the Presiding Officer of the case, the Court also summon the Chief Medical Officer, Agra, City Magistrate, Agra as well as Food Commissioner U.P. Lucknow vide order dated 30.5.2013.
14.Affidavits of compliance have been filed by Dr. Nirmala Yadav, Chief Medical Officer, Agra as well as City Magistrate, Agra, who has stated that the Chief Medical Officer has joined the said post on 31.12.2012 and the present matter relates to the year 1999, as such, at that point of time she was not posted in district Agra. He further pointed out that since the year 2010 after the creation of Food and Drug Administration Department, the entire sample as well as staff of the concerned department has been transferred under the supervision of concerned district authorities. Now the matter is not concerned with the Office of Chief Medical Officer, Agra. Similarly the City Magistrate, Agra has stated that he took over the charge as City Magistrate, Agra on 16.4.2013 and the charge of Local Heath Authority was on orders of the Government with him from 19.1.2010 till 4.8.2011. Now the same is with the designated officer under the Food Safety and Standards Act, 2006. Sri Hemant Rao, Commissioner, Food Safety and Drug Administration, U.P. Lucknow who was also summoned by the Court has also similarly stated that he also joined on the said post on 16.4.2013. He submitted before the Court that so far as funds for getting the second sample retested in such cases is not a major problem. There is no scarcity of funds for getting the second sample retested. The State Government from time to time released the funds for the same and recently Rs. 2 lacs have been released to the District Authorities of Agra for office expenses etc. on 3.8.2013, a copy of the said letter has also been annexed with the affidavit of compliance. He has also annexed a copy of the list showing amounts which have been released by the Government to various districts for the said purpose. He further pointed out that now the District Magistrate of the districts have been authorised for releasing the funds for such purposes. The situation which has arisen in the present case was pointed to him he has expressed his distress. He submitted that he has been recently posted on the said post and cannot give any reply with respect to the present situation arisen in the case as it relates to the year 1999. The Food Commissioner has submitted to this Court that the funds which were required by the Presiding Officer of the case as has been mentioned in his explanation dated 27.5.2013 has already been released and the sample in question, if sent to the Court can be sent for re-analysis and the trial court may proceed accordingly to which learned counsel for the applicant submits that after a lapse of 16 years, no fruitful purpose will be solved in getting the second sample of Mustered Oil retested as the the sample has lost its significance, hence the proceedings against the applicant should be quashed. In support of his submissions, he has placed reliance on the judgment of the Apex Court in the case of Girishbhai Dahyabhai Shah vs. C.C. Jani & another reported in (2009) 15 SCC 64 and has submitted that the present case is clearly a case where the applicant was deprived of opportunity of exercising his right to have second sample examined by the CFL by the conduct of the prosecution. The contention of learned counsel for the applicant appears to have force as the matter is of the year 1993 and after a lapse of more than 16 years, if the second sample is now allowed to be sent for re-analysis , no fruitful purpose will be solved. The sample "Mustard Oil" has lost its significance after so many years, hence the proceedings of the present case be quashed.
15.From the aforesaid facts and circumstances of the case, it is clear that due to the delay on the part of the prosecution, the valuable right of the applicant u/s 13 of the PFA Act has been infringed. Moreover the impugned order dated 18.2.2010 passed by the trial court cannot be justified as the second sample which has been summoned by it on the application of the applicant u/s 13(2) of the P.F.A Act has also not reached the trial court till 18.2.2010 nor it has reached the court till date, hence the order of the trial court fixing the case for prosecution evidence u/s 244 Cr.P.C. cannot be sustained in the eyes of law and the prosecution of the applicant after such a long delay cannot be allowed to continue in view of the judgment of Apex Court in the case of Girishbhai Dahyabhai Shah (Supra) hence the proceedings of the present case against the applicant is hereby quashed. The present application is allowed.
16.Before parting with the present case, this Court expresses it's displeasure the manner in which the present case has been lingered on and handled by the prosecuting agency. The Court with a heavy heart has to allow this petition on account of laches on the part of the prosecution. The prosecuting agency has failed to appreciate the purpose and the object of the PFA Act. If this state of affair is allowed to continue then in today's world where the health of people in the society is at stake and if the prosecuting agencies are not conscious about their duties and responsibilities it will be of no fruitful purpose that the legislation such as PFA Act which is now replaced by a new Act, i.e, The Food Safety and Standard Act, 2006 would be able to efficiently check the adulteration in food items and the object for which it has been enacted by the Parliament would definitely loose its significance and value. The Court hopes and trust that the prosecuting agencies shall in future not repeat such lethargic approach in dealing with such cases. The Court also directs that the courts below should also be conscious towards such proceedings and decide the cases with much sense of responsibility in a speedy manner so that the object of the said Act is not defeated.
17.Let a copy of this order be sent to the Chief Secretary of the State of U.P., District Judge, Agra and Commissioner, Food Safety and Drug Administration, U.P. Lucknow for necessary information and its compliance by the Registrar General of the Court.
Dated/-: 31.10.2013 Shiraz