Gujarat High Court
State Of Gujarat Thro B.N Chaudhary vs Venaram Puraram Sirvi M/S on 1 February, 2013
Author: Harsha Devani
Bench: Harsha Devani
STATE OF GUJARAT THRO B.N CHAUDHARY,C/O ASST COMMISSIONER....Applicant(s)V/SVENARAM PURARAM SIRVI M/S SURESH PROVISION STORES....Respondent(s) R/CR.MA/7717/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 7717 of 2012 ================================================================ STATE OF GUJARAT THRO B.N CHAUDHARY,C/O ASST COMMISSIONER....Applicant(s) Versus VENARAM PURARAM SIRVI M/S SURESH PROVISION STORES....Respondent(s) ================================================================ Appearance: MR. H. K. PATEL, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 01/02/2013 ORAL ORDER
1) By this application under section 378(4) of the Code of Criminal Procedure, 1973, the applicant-State of Gujarat seeks leave to appeal against the judgment and order dated 30th November, 2011 passed by the learned Judicial Magistrate, First Class, Kathor in Criminal Case No.1985 of 1995.
2) Mr. H. K. Patel, learned Additional Public Prosecutor drew the attention of the court to the record and proceedings of the case and, more particularly, to the report of the Public Analyst, Regional Food Laboratory, Bhuj, to submit that the same clearly reveals that the sample was adulterated as it did not conform to the standards laid down under the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Act and the Rules respectively). It was submitted that the learned Judge has held that the prosecution had failed to comply with the provisions of rule 14 of the Rules inasmuch as it has not been proved that the bottles had been duly cleaned before obtaining a sample. It was submitted that considering the nature of the defects found in the sample of oil, much significance cannot be attached to the breach of the provisions of rule 14 of the Rules. It was submitted that in the light of the fact that the report of the Central Food Laboratory clearly indicated that the sample was rancid and that the Belier test standard was also less than that provided under the Act and the Rules, the learned Judge was not justified in holding that the prosecution has not duly established the charges levelled against the accused.
3) Briefly stated the prosecution case is that the complainant Shri B.N. Chaudhary, Food Inspector, visited the shop run by the accused in the name and style M/s. Suresh Provision Stores and obtained a sample of groundnut oil (loose) in the presence of the accused and sent the same for testing to the Public Analyst, Bhuj. The report of the Public Analyst revealed that the sample did not conform to the standards laid down under the Act and the Rules and, as such, was adulterated. Subsequently, on an application made by the accused under the provisions of section 13(2) of the Act, the sample was sent for testing to the Central Food Laboratory, which revealed that the sample did not conform to the following standards laid down under the Act and the Rules: (i) Belier test (turbidity temperature) is shown to be 38.1 degree Celsius whereas the P.F.A standard was 39.41 degree Celsius; (ii) the acid value was 7.7 whereas the P.F.A. standard provided that the same should not more than 6.0; and (iii) the result of the test for rancidity was positive, whereas under the P.F.A., the same was required to be negative.
4) Pursuant to the lodging of the complaint, the case came to be registered as Criminal Case No.1985 of 1995. The learned Judicial Magistrate, First Class, Kathor, after appreciating the evidence on record, found that the prosecution had not proved the charges levelled against the accused beyond reasonable doubt and acquitted him of the alleged offences.
5) This court has perused the record and proceedings of the case and has also considered the submissions advanced by the learned Additional Public Prosecutor. In the light of the view that the court is inclined to take in the matter, it is not necessary to refer to the evidence in detail.
6) On a perusal of the record of the case, the following notable facts emerge. The inspection came to be carried out on 7th June, 1995, on which date, the sample of groundnut oil came to be collected. The complaint came to be lodged on 22nd August, 1995 and the summons came to be issued on 22nd August, 1995. Upon receipt of the notice and the copy of the report of the Public Analyst, the respondent-accused, in the exercise of his right under section 13(2) of the Act, by an application dated 1st August, 1996, requested the court to send the sample to the Central Food Laboratory for testing. On 22nd April, 1997, an order was passed for sending the same to the Central Food Laboratory for testing. Pursuant to such order, Rs.300/- came to be deposited by the accused on 22nd April, 1997. The record reveals that though the order for sending the sample of food article was made on 22nd April, 1997 and the accused had also deposited the said amount on the same day, for one reason or the other, the sample was not sent for testing at the relevant time, and ultimately came to be forwarded to the Central Food Laboratory vide letter dated 6th October, 2008. Thereafter, by a communication dated 11th November, 2008, the Director of Central Food Laboratory, Mysore requested the court to send analysis fee of Rs.1000/- and submitted a report dated 11th November, 2008 opining that the above referred parameters were not satisfied and, therefore, the sample of groundnut oil does not conform to the standards laid down for groundnut oil under the provisions of the Act and the Rules.
7) A perusal of the report also reveals that the Director, Central Food Laboratory has also stated that the sample was fit for analysis and has been analysed during 22nd April, 2008 and 11th November, 2008. In this regard, it may be germane to note that the sample in question is of a food article, namely, groundnut oil, which was collected on 7th June, 1995. It may be recalled that a request for sending the same to the Central Food Laboratory for testing was made by the accused on 1st August, 1996 and the learned Magistrate passed an order on 22nd April, 1997 pursuant to which the accused, at the relevant time, deposited the requisite amount for getting the sample tested. However, ultimately the sample was sent to the Central Food Laboratory after an inordinate delay, sometime in October, 2008, viz., after a period of more than eleven years. Considering the fact that the sample of ground-nut oil was sent for testing after a period of more than eleven years, it is incomprehensible as to how the Director of the Central Food Laboratory has found the same to be fit for analysis. It cannot be gainsaid that a sample of food article in the nature of groundnut oil would, over a period of time, turn rancid. It cannot be expected that a sample collected in 1996 would, in the year 2008, still maintain the same qualities as at the time when the same was collected. Over a period time (which in the present case is more than eleven years) any edible oil would be likely to turn rancid. The shelf life of a food article like ground nut oil cannot by any stretch of imagination extend to a period of more than ten years. Under the circumstances, at the time when the sample of food article was forwarded to the Central Food Laboratory, undoubtedly the shelf life of the sample must have expired.
8) In State of Haryana Vs. Unique Farmaid (P) Ltd, (1999) 8 SCC 195, the Supreme Court in the facts of the said case, wherein by the time the matter reached the court, the shelf life of the sample had already expired, observed that no purpose would have been served informing the court of such an intention to have the sample tested from the Central Insecticides Laboratory and held that the report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case, the accused had been deprived of that right, thus, prejudicing them in their defence.
9) Examining the facts of the present case in the light of the above decision, it cannot be gainsaid that the shelf life of the food article in question must have expired long before the sample was sent for testing to the Central Food Laboratory. From the facts noted hereinabove, it is apparent that there was no default on the part of the accused in the delay caused in sending the sample tested for analysis. Clearly, therefore, on account of the delay caused in sending the sample for analysis to the Central Food Laboratory, the right of the accused to get the sample tested by the said laboratory has been infringed. True it is, that the Director, Central Food Laboratory has tested the sample and has submitted the analysis report, however, in the opinion of this court such report whereby the sample has been tested much after the shelf life thereof had expired, cannot be relied upon for the purpose of holding that the sample collected from the accused does not conform to the standards laid down under the Act and the Rules. Evidently, therefore, on account of the inordinate delay caused in forwarding the sample to the Central Food Laboratory, the accused has been deprived of his valuable right under section 13(2) of the Act of sending the sample for testing to the Central Food Laboratory. The mere fact that the sample of groundnut oil was sent to the Central Food Laboratory for analysis, would not amount to due compliance with the provisions of section 13(2) of the Act, inasmuch as, by the time the sample was sent to the Central Food Laboratory, evidently the same would have deteriorated and become rancid.
10) In the light of the aforesaid discussion, it is not necessary to enter into the merits of the other findings recorded by the learned Judge. On the evidence, which has come on record, it is apparent that the accused has been deprived of his valuable right under section 13(2) of the Act to get the sample tested by the Central Food Laboratory before the shelf life of the sample expired. While it is true that there is no reference to the shelf life of the sample in the record. However, as discussed hereinabove, it cannot be expected that a sample of groundnut oil would remain in a stable condition over a period of eleven years. Under the circumstances, on account of noncompliance with the provisions of section 13(2) of the Act, the entire proceedings stand vitiated.
11) In the light of the above discussion, no prima facie case has been made out warranting interference. Leave is, therefore, refused and the application is rejected.
(HARSHA DEVANI, J.) Vahid Page 8 of 8