Patna High Court - Orders
Shanti Kumar Jain vs State Of Bihar & Anr on 26 April, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.25291 of 2010
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Shanti Kumar Jain son of Late Ram Chandra Jain, resident of Dharamshala
Road, Kishanganj, P.O. and P.S. Kishanganj, Distt-Kishanganj, (Bihar).
.... .... Petitioner/s
Versus
1. State Of Bihar
2. Food Inspector.
.... .... Opposite Party/s
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with
Criminal Miscellaneous No.25517 of 2010
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Govind Prasad Agrawal son of Sri Ratan Lal Agrawal, resident of
Kishanganj Bazar, P.O. and P.S. Kishanganj, Distt-Kishanganj, (Bihar).
.... .... Petitioner/s
Versus
1. State Of Bihar & Anr
2. Food Inspector, Patna.
.... .... Opposite Party/s
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Appearance :
(In Cr.Misc. No.25291 of 2010)
For the Petitioner/s : Mr.Ramesh Kumar Agrawal, Adv.
Mr. Anupa Nand Jha, Adv.
For the Opposite Party/s : Dr. Ajeet Kumar, APP
(In Cr.Misc. No.25517 of 2010)
For the Petitioner/s : Mr.Ramesh Kumar Agrawal, Adv.
Mr. Anupa Nand Jha
For the Opposite Party/s : Dr. Ajeet Kumar APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
5 26-04-2012Heard learned counsel for the petitioner as well as learned APP for the State.
2. Both the petitions originate from an order dated 05.06.2010 passed by SDJM, Kishanganj in Complaint Case No. 3/2000 hence been heard together and are being disposed of by a common order with the consent of the parties.
Patna High Court Cr.Misc. No.25291 of 2010 (5) dt.26-04-2012 2
3. It has been submitted on behalf of the petitioners that there has been flagrant violation of the mandatory provisions of law so prescribed under Prevention of Food Adulteration Act and on account thereof, valuable right of petitioners has illegally been snatched away by the illegal action of the prosecution. Consequent thereupon, the prosecution is fit to be quashed.
4. It has further been submitted that the competent authority had not acted in pursuance of Section 20 of the Act rather simply put his signature in the routine manner and on this score also the prosecution cannot be accepted as valid one.
5. To elaborate furthermore, it has been submitted that there happens to be non compliance of Section 13 (2) of the Prevention of Food Adulteration Act till today although the date of purchasing of sample happens to be dated 22.05.1999 and so the petitioners have been, by such illegal action deprived to challenge the public analyst report within reasonable time. By having such illegal action, now petitioners will not get any report from the Central analyst because the Iodine is bound to evaporate and must have evaporated within the aforesaid long intervening period.
6. To justify his submission, also referred 1995 (Supp) 4 SCC 659, 1997(1) PLJR 453, 1995(2) BLJ 380, 1994(1) EIRCR-C, Patna 196. On the point of sanction also referred AIR Patna High Court Cr.Misc. No.25291 of 2010 (5) dt.26-04-2012 3 1986 SC 2107, 1992(Supp) 1, SCC 222.
7. Contra, the learned APP submitted that public analyst report is already there and since after appearance of petitioners they have not raised any objection on this score which tantamounts to waive the right. Now they are estopped to raise such plea. So far, application of Section 20 is concerned, it happens to be a matter of trial. Therefore, the points so raised on behalf of the petitioners are not at all applicable in the facts and circumstances of the case nor any of the decisions cited on behalf of the petitioners has dealt with the aforesaid situation.
8. The Prevention of Food Adulteration Action, 1954 time to time faced radical changes and during said course through amendment, the valuable right of accused has been recognized and an attempt has been made to preserve the same so that they should not feel prejudiced. In the aforesaid background Subsection-2 of Section-13, has visualized. According to Subsection-2 of Section- 13 an obligation has been put upon the complainant, the local health authority, to serve a copy of public analyst report upon the accused just after launching of prosecution whereupon, if so required, the accused may file a petition before the court concerned within ten days of receipt of that report showing his intention to challenge the report of public analyst so that sample Patna High Court Cr.Misc. No.25291 of 2010 (5) dt.26-04-2012 4 be examined by the Central analyst. Subsection-2 of Section-13 does not prescribe any time limit whereunder the local health authority (Complainant) is bound to serve a copy of public analyst upon the accused. However, the legislature was not silent and that was taken into consideration and for that Rule 9(B) can be referred to which reads as follows:-
[ [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 been disclosed under section 14A of the Act:
Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action is intended under sub-section (2E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under Section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst.]
9. According Sub Rule 9(B) only ten days time was prescribed and was made available to the prosecution from the date of launching of prosecution to serve copy of public analyst report. If no report is served within the aforesaid stipulated period, certainly in that event, it will be presumed that there has been flagrant violation of mandate of the law and ultimately the Patna High Court Cr.Misc. No.25291 of 2010 (5) dt.26-04-2012 5 aforesaid event is going to lean in favour of accused.
10. Now, coming to the present case, the State through counter affidavit has not controverted the aforesaid event. The order impugned also did not speak whether the aforesaid mandatory provision was ever complied with. During course of rejection of the prayer of accused/petitioners for discharge, the learned lower court had not explained the aforesaid event.
Petitioners though failed to file order-sheets to show that at initial stage such pleas was taken however Annexure-3 happens to be there whereunder such ground has been taken at the time of charge. Hence these happen to be uncontroverted plea existing on the record which ought to have been considered by the court.
11. In the aforesaid facts and circumstances of the case, because of the fact that the petitioners have been deprived of to file mandatory provisions of law by the prosecution negligently or intentionally whichever may be, subsequent prosecution cannot be permitted to continue.
12. Consequent thereupon, the order impugned is set aside. Thus, both these petitions are allowed.
(Aditya Kumar Trivedi, J) perwez