Bombay High Court
The State Of Maharashtra vs Ashpak Ahmed Fakik Ahmed on 13 June, 2014
Author: V.M. Deshpande
Bench: V.M. Deshpande
G.A.Ghule
(P.A.)
1/7 Cri.Revn.Appln.138.00 (Judgment).odt
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPELLATE JURISDICTION.
Criminal Revision Application No.138 Of 2000.
The State of Maharashtra
Through Shri S.B. Kodgire,
Food Inspector,
Office of the Asstt. Commissioner,
Food & Drug Administration,
Parbhani. Dist. Parbhani. :: Applicant.
[ Ori.Complainant ]
Versus
[1] Ashpak Ahmed Fakik Ahmed
Vendor of New Friends Jarda Stores,
Maulana Azhad Road, Grand Corner, Parbhani
[2] Mohmmad Shafik Ahmed Mohd. Rafik Ahmed
Proprietor of
M/s. New Friends Jarda Stores,
Maulana Azhad Road, Grand Corner, Parbhani.
:: Non-Applicants.
[ Ori.Accused ]
Appearance =>
Mr. D.R. Korde, A.P.P. for the State of Maharashtra.
None present for the Non-Applicants.
Coram : V.M. Deshpande, J.
Reserved On : 10th June, 2014.
Pronounced On : 13th June, 2014.
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J U D G M E NT :-
By preferring the present Criminal Revision Application, the State is questioning the correctness and propriety of the Judgment and Order passed by the learned Addl.Sessions Judge, Parbhani, Dist. Parbhani dated 25th January, 2000 in Cri.Revn.No.116/1999 by which the learned Revisional Court was pleased to allow the Cri.Revision by setting aside the order passed by the learned Chief Judicial Magistrate, Parbhani, dated 1 st July, 1999 passed below Exh.No.63 in R.C.C.No.258 Of 1997 whereby the learned trial Magistrate was pleased to reject the application on behalf of the present Non-Applicants to discharge them from the case. Thus, the State is challenging the order of discharge made by the learned Revisional Court in the Criminal Revision.
[2] The factual matrix is summarized herein-below :-
(i) On 27th September, 1996 the Complainant i.e. Food Inspector of Food & Drug Administration ( In short, F.D.A. ) alongwith another Food Inspector and one independent witness visited a firm M/s. New Friends Jarda Stores, Maulana Azhad Road, Grand Corner, Parbhani. The Complainant purchased 9 bottles of 200 grams each of " Radha-Rani Chatni" [ jk/kkjk.kh pV.kh ] from present Non-Applicant No.1 after disclosing the identity and introducing themselves and purpose of their visit to Non-Applicants No.1.::: Downloaded on - 22/06/2014 23:29:17 :::
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(ii) After completing the formalities the sample was sent to
Public Analyst. Report from the Public Analyst was received disclosing adulteration in conformity with the Rules framed under the Prevention of Food Adulteration Act, 1954 [ In short, the P.F.D. Act, 1954]. The said fact was communicated to the Non-Applicants. Thereafter, steps were taken for obtaining the sanction from the Sanctioning Authority.
(iii) The Food Inspector, F.D.A. filed a complaint against the Non-Applicants, who are vendors and Proprietors of M/s. New Friends Zarda Stores, Maulana Azhad Road, Grand Corner, Parbhani U/Section 7(i) read with 2(ia)(a) punishable U/Section 16(1)(a) (ii) Section 7(v) read with Rule 29 punishable U/Section 16(1)(a)(ii), Section 7(iii) read with Rule 50 (1) punishable U/Section 16(1)(a)(ii) of the P.F.D. Act, 1954. The said complaint was registered as R.C.C.No.258 Of 1997.
(iv) Both the Non-Applicant / Accused opted for sending the same to the Central Food Laboratory ( In short, the C.F.L.).
after following due procedure, the same was sent to the C.F.L. The C.F.L. has sent its report .
(v) On 4 th February, 1999 vide Exh.No.59, the learned Chief Judicial Magistrate framed the Charge against the Non- Applicants / accused. The said charge is reproduced herein- below :-
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[3] The Public Analyst report is at Exh.No.48. In the report, the Public Analyst has expressed his opinion as under :-
I am of the opinion that - the sample being Code No.ABD/14/P & Sr.No.003275 of the L(H)A shows the presence of coal tar Food colours and contravenes the rule No.29 of the Prevention of Food Adulteration Rules, 1955.
Exh.No.23 which is report of the C.F.L contains opinion as under :-
OPINION " Sample of Raja-Rani Chatani is adulterated and contravenes Rule 33(e) of P.F.A. Rules. "
[4] In this background, an application Exh.No.63 was moved by the Non-Applicants/Accused for discharge. The said application was primarily moved on following grounds :-::: Downloaded on - 22/06/2014 23:29:17 :::
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(i) that, in view of Section 13(3) of the P.F.D. Act, 1954 report of the C.F.L. has overriding effect over the report of the Public Analyst and,
(ii)that, after the report of the C.F.L. the Food Inspector failed to obtain the sanction to prosecution on the basis of the report of the C.F.L. [5] The said application was opposed by the Complainant. The learned trial Magistrate passed an order below Exh.No.63 on 1 st July, 1999 and was pleased to reject the said application. Against that order, Criminal Revision Application was filed by the Non-Applicants in the Court of Sessions Judge, Parbhani. Said Revision was registered as Cri. Revn. Appln.
No.116/1999 and after hearing the parties to the Revision Application, by the Judgment dated 25th January, 2000, the learned Revisional Court allowed the Criminal Revision by setting aside the order passed by the learned Trial Magistrate below Exh.No.63, consequently, the Revisional Court was pleased to allowed application Exh.No.63 filed by the Non-Applicants and discharged them.
[6] I have heard the learned Addl.P.P. for the State in extenso.
None appeared for the Non-Applicants. With the assistance of learned Addl.P.P. for the State, I have gone through the order passed by both the courts below and also available record. It is clear that, in view of Section 13(3) of the P.F.A. Act, 1954, certificate issued by the Director of C.F.L. shall supersede the report given by the Public Analyst under the Sub Section (1) of Section 13. Thus, report of the Public Analyst Exh.No.48 has lost its importance in view of the report of the C.F.L. Exh.No. 23.
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[7] The finding of C.F.L. did not concur with the findings of the
Public Analyst that the sample was in contravention of Rule 29 of the Prevention of Food Adulteration Rules, 1955, however, according to C.F.L. the sample in question is in contravention of Rule 32(e) of the P.F.A. Rules, 1955. On these facts, it is clear that, the learned trial Court ought not to have framed the Charge, in violation of Rule 29 of the P.F.A.Rules, 1955.
[8] In the present case, sanction was obtained from the competent authority primarily on the basis of the report of Public Analyst [ Exh.No.48 ] and armed with such sanction both the accused were prosecuted.
[9] As discussed above, both the accused opted for option to sent the sample to the C.F.L. and thereafter it was obligatory on the part of the complainant to obtain the fresh sanction on the basis of report of C.F.L., which the complainant has failed to obtain and the same is fatal. The learned Revisional Court has considered these aspects in details. There is no reason for this court to dis-agree with the said findings.
[10] Toeing the line of the reasoning given by the learned trial court, the learned A.P.P. for the State submitted that, once Charge has been framed, the accused cannot be discharged. In this case, the Non-Applicants / accused came to know that the Charge was framed primarily on the basis of report of the Public Analyst and that too when the C.F.L. did not concur with the findings of the Public Analyst. In that view of the matter, the objection on the part of the learned A.P.P. for the State is unsustainable.
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[11] The learned Revisional Court has rightly found that the learned
trial Magistrate framed the Charge on wrong assumption and basis on which the Charge was framed cannot be the basis for framing the Charge; then in such circumstances, the accused cannot be asked to face the trial.
[12] Considering these facts, I find myself in complete agreement with the reasoning given by the learned Additional Sessions Judge, Parbhani. The learned Revisional Court has correctly reached to the conclusion. There is no error in the findings recorded by the learned Revisional Court. In that view of the matter, present Criminal Revision Application is dismissed.
Criminal Revision Application is dismissed.
[ V.M. Deshpande, J. ] ::: Downloaded on - 22/06/2014 23:29:17 :::