Madhya Pradesh High Court
Keshav Wadhwani vs The State Of Madhya Pradesh on 16 January, 2018
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
M.Cr.C.No.19425/2016
Keshav Wadhwani
Vs.
The State of Madhya Pradesh & Others
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For the applicant : Shri Shobhitaditya, advocate.
For the respondent : Shri BP.Pandey, Government Advocate.
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ORDER
Reserved on 09/01/2018 Passed on 16/01/2018 This petition has been filed under Section 482 of the Cr.P.C. for quashment of the proceedings of Criminal Case No.8607/2011 pending before Special Magistrate/Judicial Magistrate, I Class, Bhopal.
Brief facts of the case which are relevant for just disposal of this petition are that on 11/05/2011 respondent / Food Inspector inspected the premises of Pind Baluchi Restaurant situated at 3rd Floor, D.B. Mall, Arera Hills, Bhopal and took the sample of wheat flour (Atta) from respondent No.2 Saurabh Bharadwaj, the then Manager of the Restaurant and sent it for analysis to Public Analyst. Report of Public Analyst was received on 25/06/2011, according to which that wheat flour (Atta) was found to be adulterated. It was also found that the wheat flour (Atta) was bought by respondent No.2 from M/s Amit Agency and applicant was proprietor of that agency. So Food Inspector filed complaint against the applicant and other co-accused persons after getting written consent from Dy. Director Food and Drugs administration Bhopal. On that complaint learned trial Court took the cognizance against the applicant and other co-accused persons for the 2 offence punishable under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 ((hereinafter referred to as the 'Act') and issued warrant against them for securing their presence and fixed the case on 28/11/2011 for appearance of applicants and other co-accused. Applicant appeared before the trial Court on that date and on 18/01/2012 applicant filed an application under section 13(2) of the Act for sending second part of the sample of wheat flour (Atta) to Central Food Laboratory for analysis. Learned trial Court allowed that application and sent the second part of the sample to Central Food Laboratory for analysis, who gave report mentioning therein that the sample could not be analyzed as it had decomposed, therefore, the third part of the sample be sent for analysis. On that, learned trial Court ordered to send the third part of the sample for analysis and case is pending at that stage.
Learned counsel for the applicant submitted that the respondent No.1 took sample on 11/05/2011 and the report of Public Analysis of that sample was received on 16/06/2011. While respondent no.1 filed complaint against the applicant on 07/10/2011 after five months of taking sample. Applicant appeared before the trial Court on 28/11/2011 and applied for analysis of second part of wheat flour (Atta) under Section 13(2) of the Act on 18/01/12. Learned trial Court allowed that application vide order dated 26/03/2012 and directed the Dy. Director, Food & Drug Administration Bhopal to produce second part of the sample, but the Dy. Director did not produce the second part of the sample inspite of several reminders and finally the second part of that sample was produced before the learned trial Court on 10/08/2016 i.e. after 53 months of the collection of that sample, while the provision of Section 13(2-A) of the Act specifies that the second part of sample should be produced within a period of five days from the requisition by the learned trial Court. Since, the Dy. Director, Food & Drug Administration Bhopal did not produce the sample before trial Court within stipulated time due to which the second part of the sample could not be sent for analysis to the Central Food Laboratory up to 10/08/2016 and it decomposed, the applicant has been deprived of his right to get the second 3 part of the sample analyzed from the Central Food Testing Laboratory. So proceeding of criminal case No.8607/2011 be quashed. He further submitted that the Director of Central Food Laboratory was requested to forward third part of the sample along with revalidated demand draft of the applicant without any authority. Learned trial Court without appreciating the fact wrongly ordered to send the third part of sample to the Central Food Laboratory. Hence this order of the trial Court be also quashed. In this regard learned counsel placed reliance on a judgment of Hon'ble Apex Court in the case of Girishbhai Dahyabhai Shah Vs. C.C. Jani & Another, (2009) 15 SCC 64 and two judgments of this Court passed in the case of Suresh Narayanan & Others Vs. State of M.P., 2003(3)MPLJ 60 and in the case of Suresh Narain Vs. Food Inspector & Another, 2003(2)MPLJ 120.
Learned counsel for the State opposed the prayer and submitted that the third part of the sample is yet to be analyzed by the Central Food Laboratory without which it can not be said that the accused has been denied of his right to get the second part of the sample analyzed by the Central Food Testing Laboratory. The applicant deliberately filled this petition with intent to prolong the case and also got stay, due to which the proceedings of the case in the Trial Court has been stopped. so only on the ground of delay in producing second part of sample the proceedings of the Criminal Case No.8607/2011 cannot be quashed.
This Court has gone through the record and arguments advanced by the learned counsel for the parties.
Although, it appears from the record that the applicant appeared before the trial Court on 18/11/2011 and on 18/01/2012 filed an application for reanalysis of second part of the alleged sample by Central Food Laboratory and learned trial Court allowed the application vide order dated 26/03/2012, but the second part of the sample was produced before the trial Court by the Authority on 10/08/2016 i.e. after 53 months and the sample got decomposed as is mentioned in the CFL report, but it also appears from the record that the trial Court directed to send the third part of sample for analysis, so without the third part of the sample being analyzed it can not be 4 said that the sample would not have remained fit for analysis by the time the accused filed application under section 13 (2) of the Act.
The facts of the cases cited by the learned counsel for the applicant do not match with the present case. In the case of Girishbhai Dahyabhai Shah (supra) notice of Section of 13(2) of the Act was served on the applicant after 15 months of taking the sample. In the case of Suresh Narain and others (supra) also prosecution filed complaint before the trial Court after 19 months from the date of taking the sample and delay is also not explained and on that ground this Court after appreciating all the evidence quashed the proceedings after finding that the sample of milk got deteriorated within six months and in third case Suresh Narain (supra) the remaining part of the sample (II & III) were found to be decomposed while in this case third part of sample is yet to be analysed. So the aforesaid judgments do not help the applicant much.
Apex court in the case of Charanjilal v. State of Punjab, reported in (1984) 1 SCC 329 = AIR 1984 SC 80 held, the word "damaged" in the collocation of the words "lost or damaged" appearing in the proviso to sub-section (2-C) of Section 13 in relation to the part of the sample sent by the court to the Director of the Central Food Laboratory must, in the context, mean "damaged due to any cause, including decomposition". The part of the sample sent by the court to the Director of the Central Food Laboratory under the proviso to sub-section (2-C) of Section 13 may be either damaged due to the container not being properly sealed or fastened, or due to various other causes including breakage of the container, or because decomposition has occurred, or it may be lost in transit. The word "damaged" in the collocation of the words "lost or damaged" occurring in sub-section (2) of Section 11 and in the proviso to sub-section (2-C) of Section 13 must be construed in furtherance of the object and purpose of inserting these provisions. The whole purpose of depositing two parts of the sample with the Local (Health) Authority is that if one of the parts of the sample is lost or damaged for any reason whatever, the remaining part may still be available for analysis.
5This court also in the case of Munnalal Vs State of M.P., 2001 FAJ 164 relying on the above mentioned judgement of the Apex Court held that the Court has power under proviso to S. 13(2-C) of the Prevention of Food Adulteration Act, 1954 to send third part of sample of milk, if any, for analysis, if the sample sent by the Court to the Director of the Central Food Laboratory is lost or damaged. The word 'damaged' used in the proviso aforesaid would include decomposition. So contention of learned counsel of the applicant that trial court wrongly ordered to send the third part of sample to the Central Food Laboratory does not appear to be correct.
The question whether right of the accused has been denied or he has been deprived of his defence is not a matter of presumption or assumption and there must be material to show that the sample would not have remained fit for analysis by the time the accused is served in the case and to show that decomposition is traceable to lapse of time occurring on account of latches of the prosecution, either in filing complaint or otherwise and not due to other reasons. While in this case the third part of the sample could not be sent to the CFL so far due to applicant's fault. So, it can not be said that the sample would not have remained fit for analysis by the time the accused filed application under section 13 (2) of the Act and to show that decomposition is traceable due to lapse of time occurring on account of latches of the prosecution either in filing complaint or otherwise and not due to other reasons.
Accordingly, petition has no merit and is hereby dismissed.
(Rajeev Kumar Dubey) JUDGE as/-
Digitally signed by ANURAG SONIDate: 2018.01.17 10:07:35 +05'30'