Madhya Pradesh High Court
Vijay Gupta vs The State Of Madhya Pradesh on 11 November, 2022
Author: Anand Pathak
Bench: Anand Pathak
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
CRIMINAL REVISION No. 3326 of 2022
Between:-
VIJAY GUPTA S/O SHRI RAMGOPAL GUPTA,
AGED 46 YERAS R/O MAIN BAZAR, BADONI, P.S.
BADONI, DISTRICT DATIA (M.P.)
.....PETITIONER
(BY SHRI ATUL GUPTA- ADVOCATE)
AND
STATE OF MADHYA PRADESH
THROUGH FOOD INSPECTOR DATIA, FOOD
DEPARTMENT, DATIA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI LOKENDRA SHRIVASTAVA - PUBLIC
PROSECUTOR)
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Reserved on : 28-09-2022
Delivered on : 11-11-2022
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ORDER
1. The present revision petition under Section 397 and 401 of Cr.P.C. is preferred by the petitioner against the judgment of conviction and order of sentence dated 29-08-2022 passed by the Ist Additional Sessions Judge, Datia in Criminal Appeal No.62/2017 confirming the judgment of 2 conviction passed by learned Judicial Magistrate First Class, Datia in Criminal Case No.732/2009 whereby petitioner has been convicted as under:
S.No. Offence under Imprisonment Fine Default Prevention of Food Stipulation Adulteration Act 1 7(1) r/w 16(1)(A)(1) 1 year's RI Rs.1,000/- Eight months' SI of the Act 2 7(2) r/w 16(1)(A)(1) 6 months' RI Rs.600/- Two months' RI
2. Precisely stated facts of the case are that in a surprise visit, on 13-01- 2009 at around 4:30 pm, Food Inspector inspected edible product (pure Ghee) of Gopal Kirana Store, Badoni District Datia and present petitioner found at the said firm. In presence of witnesses and after observing all the formalities, samples were collected. Thereafter sealed. Out of them, one sample was sent for examination to the State Food Laboratory, Bhopal. Thereafter, on receiving the report, complaint was preferred under the provisions of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") before the competent Court of law.
3. Before the trial Court -Judicial Magistrate First Class, Datia, petitioner abjured his guilt and prayed for trial. Prosecution examined its witnesses 3 in support of its case. After recording of evidence ocular as well as documentary and hearing the submission of counsel for the parties, trial Court convicted and sentenced the petitioner as referred above.
4. The judgment of conviction and order of sentence passed by the trial Court has been challenged by the petitioner by preferring criminal appeal. The appellate Court dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the trial Court.
5. It is submitted by learned counsel for the petitioner that the Courts below erred in convicting the petitioner for the offence referred above. Vinay Gupta (PW-1) did not support the story of prosecution and he even denied collecting of samples from petitioner's shop. It is further submitted that the seized articles were not manufactured by the petitioner, it was Riddhi Siddhi Food Products which manufactured the said food article and he was only selling the said product but the said company was not implicated in the present matter. In relation to location of place of shop of petitioner also, inconsistency crept into the documents of prosecution.
6. Learned counsel for the petitioner submits that in the case in hand compliance as required under Section 13(2) of the Act and rule 9B of the 4 Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as "the Rules") have not been made by the prosecution in relation to sending the report to the concerned person (here petitioner) within ten days from the date of filing of complaint in order to provide an opportunity to the person concerned to get the sample examined by Central Food Laboratory. Thus, the impugned judgments and order of sentence passed by the Courts below deserves to be set aside and petitioner deserves acquittal.
7. On the other hand, learned counsel for the respondent/State opposed the prayer and prayed for dismissal of petition.
8. Heard learned counsel for the parties and perused the record.
9. From perusal of impugned judgments passed by the Courts below and record it appears that following dates and events were material in the facts and circumstances of the case:
Dates Events
13/01/2009 Samples were collected by the
inspection team
14/01/2009 Sample was sent for Chemical
Analysis
16/01/2009 Sample was received at the Testing
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Lab
24/01/2009 Testing started at the Lab
03/02/2009 Sample testing was completed
12/02/2009 Report was sent by Public Analyst
23/06/2009 Private complaint was filed
06/07/2009 In compliance of Section 13(2) of the
Act, Public Analyst report was sent to
the petitioner.
10. From perusal of above list of dates and events, it appears that report was sent by Lab to the Food Officer on 12-02-2019 and thereafter complaint was filed on 23-06-2009. Therefore, as per rule 9B of the Rules, public analyst report ought to have been provided to the person concerned within 10 days for referring the matter to Central Lab if advised, but here the said notice/report has been given on 13th day. Therefore, same is hit by the mandatory provision and thus non compliance is apparent on record. No document has been filed by the respondent before the Courts below or before this Court to reach to a conclusion that compliance has been made within 10 days from the date of complaint. The documents available on record clearly establish the fact of providing public analyst report to the petitioner after expiry of ten days. For ready reference Section 13(2) of the Act and rule 9B of the Rules are reproduced below: 6
"13(2). On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory."
[9B] Local (Health) Authority to send report to person concerned:- The Local (Health) Authority shall [within a period of ten days] after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have 7 been disclosed under section 14-A of the Act."
11. Supreme Court in the case of Vijendra Vs. State of Uttar Pradesh, (2020) 15 SCC 763 has held as under:
"13. In the instant case, the contention put forth is that firstly no such report of the Analyst has been made available to the appellant and there is no proof of delivery of the report. It is contended that even though the prosecution had stated that the report was dispatched on 07.04.1980, keeping in view that the prosecution was instituted by filing the application before the learned Magistrate on 18.03.1980 the very alleged dispatch of the report is beyond the period of 10 days as contemplated in the Rule as stated above. On this aspect the learned Magistrate, while rejecting the contention has held that the report of the Public Analyst was sent to the appellant by registered post on 07.04.1980 which is within the period of 20 days and since such report was sent within a reasonable time the appellant cannot be said to have been prejudiced in any manner. It is further observed that he was at liberty to move the Court for sending a sample to the Director of Central Food Laboratory, Calcutta for analysis but he did not exercise his right in this respect. The learned Additional Sessions Judge in his judgment while considering this aspect has held that the Food Clerk, 8 Shri Jaipal Singh (PW-2) has stated that the report of the Public Analyst was sent to the appellant by registered post on 07.04.1980. On this very aspect the learned Judge of the High Court has also recorded that Shri Jaipal Singh (PW-2) who is the clerk of the Food Inspector (PW-1) has proved the fact that the Public Analyst's report was sent to the appellant by registered post on 07.04.1980. In that background, the High Court on referring to the provision contained in Section 13(2)of the Act 1954 read with Rule 9B of the Rules, 1955 has held that the purpose of Section 13(2)is to enable the accused if he so desires, to make an application to the Court for getting sample retested. The learned Judge was swayed by the fact that the appellant herein who was the accused has not made such application at all and in that light the learned Judge has arrived at the conclusion that there is substantial compliance of Section 13of the Act, 1954.
14. On this aspect of the matter, we take note that while adverting to the provision in Section 13(2) requiring to furnish the report of the Analyst to the accused as contemplated therein the learned Judges of all the three Courts have taken note of the evidence of PW-2 Shri Jaipal Singh, the Food Clerk who claimed to have dispatched the report by registered post on 07.04.1980. The learned Judges have however failed to take note that no evidence 9 was brought on record to indicate that the report which is claimed to have been dispatched was actually served or delivered to the appellant. The very purpose of furnishing such report is to enable the accused to seek for reference to the Central Food Laboratory for analysis if the accused is dissatisfied with the report. Such safeguard provided to the accused under Section 13(2)of the Act is a valuable right. In that view even if the dispatch of the report on 07.04.1980 is taken as substantial compliance though it is beyond the period of 10 days from 18.03.1980 i.e., the date on which the prosecution was lodged, in the absence of there being proof of delivery of the report to the accused; in the instant facts the valuable right available to the accused/appellant to seek for reference within the period of 10 days stands defeated. In that circumstance when the appellant/accused is made to suffer the penal consequences, it will have to be construed strictly. In the facts and circumstances of this case, since as already noticed above the report of the Analyst has not in fact been served on the appellant and the mere dispatch of the report as per the statement of PW-2 was not sufficient. If that be the position, the entire case of the prosecution which revolves around and is built upon the report of the Analyst cannot be made the basis for holding the appellant/accused guilty in the present case."10
12. This Court also in the case of Food Inspector, Balaghat Vs. Tejlal, 1995 (I) MPWN (SN) 92 has discussed the impact of non-compliance. Thus, it appears that mandatory compliance of rule 9B of the Rules has not been made, therefore, case is made out for setting aside of impugned judgment of conviction and order of sentence passed by the Courts below.
13. Resultantly, impugned judgments passed by the trial Court and appellate Court are hereby set aside on the above ground. Petitioner is acquitted from the charges levelled against him. He is in confinement, therefore, he be released henceforth, if not required in any other case.
14. However before parting it appears that some suggestion is required to be given in the interest of justice. This Court has observed time and again that in the cases of Prevention of Food Adulteration Act, 1954 and related laws, one of the most prevalent and potent ground taken by the accused is "Non Adherence of Procedural Requirement". Therefore, officers of the department have to be more cautious and vigilant in compliance of mandatory provisions like in the present case. They must be sensitized and trained in this regard so that they may undertake compliances within stipulated time.
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15. Therefore, this Court expects from the State Government, specially the Principal Secretary of Public Health Department and Principal Secretary under whom Food Department falls that they will take the onus of conduct of workshops regularly to sensitize the officers showing display of promptness and vigilance while dealing with mandatory procedural requirements. By this promptness, prosecution may take the cases to a logical end and such cases would not frustrate at the anvil of procedural lapses.
16. An Earnest Expectation is raised by this Court.
17. Copy of the order be sent to the Principal Secretary, Public Health and Family Welfare and Principal Secretary, Food, Civil Supplies and Consumer Protection for information and undertaking sensitization programmes in this regard.
18. Copy of the order be also sent to the trial Court for information and necessary compliance.
19. Revision petition stands allowed and disposed of.
(Anand Pathak) Judge Anil* ANIL KUMAR CHAURASIYA 2022.11.13 21:34:12
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