Madhya Pradesh High Court
S.Pathak vs State Of M.P. on 1 March, 2016
1 MCRC 5359/2011
( S.Pathak Vs. State of M.P.)
01.03.2016
Shri Surendra Singh, Senior Advocate with Shri
Saurab Agrawal, counsel for the applicant.
Shri B.K. Sharma, P.P. for the respondent/
State.
Heard the learned counsel for the parties. (1) The applicant has preferred the present petition under Section 482 of the Cr.P.C. to quash the proceedings of the complaint case No.2259/2007 registered for the offence under Section 7 (1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (in short " P.F. Act" for the sample of packed huldi (turmeric) powder from one Ratan Kumar, Proprietor of Bharat Agencies, Chief Distributor, Brookebond Chana Masale, Madhav Ganj, Lashkar, Gwalior.
(2) Facts of the case in short are that on 16.11.1990, the respondent/Food Inspector visited the office of Bharat Agencies, Madhav Ganj, Lashkar, Gwalior and took sample of various articles including turmeric powder. The present case was filed for the sample of turmeric powder. Such powder was sent to the Public Analyst and it was found to be adulterated and, therefore, after getting sanction from the concerned authority, a complaint was filed by the respondent. The applicant filed an application under Section 13(2) of P.F. Act and vide order dated 22.10.1991, application was allowed and it was directed that the complainant shall submit the second 2 MCRC 5359/2011 part of sample so that it should be sent to the Central Food Laboratory for its analysis. Second part of sample could not be produced before the Court upto 28.02.1997 and, thereafter, the notice were issued to the other accused persons and ultimately second part of sample was not deposited by the respondent before the trial Court. Vide order dated 09.12.1999, the accused Ratan Kumar was discharged by the trial Court and, thereafter, matter was proceeded. (3) After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, the learned senior advocate for the applicant has shown grievance of the applicant on two counts. Firstly, that according to the report of Public Analyst, sample was marginally adulterated, in the light of standard prescribed in Article A.05.20.01 of appendix 'B' of the Prevention of Food Adulteration Rules, 1955, and therefore for such a marginal defect no trial could be initiated. Secondly, that the valuable right of the applicant under Section 13(2) of the P.F. Act was side tracked and, therefore, there is no possibility of conviction of the applicant in the case, hence, it is prayed that the proceedings of the trial Court be quashed under the powers of this Court given in Section 482 of the Cr.P.C. In support of his contention, the learned senior advocate for the applicant has placed reliance upon a judgment passed by the Apex Court in case of "Municipal Corporation of Delhi Vs. Ghisa Ram" AIR 1967 3 MCRC 5359/2011 S.C. 970 to show about the right of accused under Section 13 (2) of the P.F. Act and consequent effect if such right is denied. The reliance has also placed upon the order passed by the Apex Court in case "Noratan Mal Vs. State of Rajasthan" 1995 (1) FAC 126.
(4) In the present case if adulteration as pointed out by the Public Analyst is examined then according to the aforesaid standard as mentioned in Article A.05.20.01 in item No.(iii) Ash insoluble in dilute HCL on dry basis - should not be more than 1.5 per cent by weight, whereas in sample it was mentioned that such ash was 1.6 % by weight which is slightly higher than the standard prescribed. When according to the standard no starch was found more than the limit and test of additional colour or Lead Chromate was found negative. Also the Public Analyst did not perform the test of Salmonella and hence it is possible that the result of test "ash insoluble in dilute HCL" could be slightly higher due to some error of evaluation and, therefore, by the report of Public Analyst where only one test was against the applicant and also it was marginally higher, the benefit of doubt is required to be given to the accused. In this connection, the order passed by the Apex Court in Noratan Mal (supra) is clear in which it is found that sample was slightly different from the standard then the accused cannot be convicted for offence of adulteration, and, therefore, in the light of aforesaid order when the applicant cannot be convicted of 4 MCRC 5359/2011 offence of adulteration, then there is no reason so that he be harassed to face such a trial which will end in acquittal.
(5) Also the valuable right is given to the accused under Section 13 (2) of the P.F. Act to get his sample analysed by the Central Food Laboratory. The applicant applied for the analysis of that second part of the sample before the Central Food Laboratory and the trial Court has directed to produce the second part of sample before the Court so that it can be sent to the Central Food Laboratory but it is unfortunate that for six years, sample could not produced before the trial Court which indicates that the respondent did not have the second part of sample with him and due to his negligence, the applicant was deprived from his valuable right under Section 13 (2) of the P.F. Act. In the light judgment passed by the Apex Court in case of Municipal Corporation (supra) if right of accused under Section 13 (2) of the P.F. Act is denied then conviction against the accused cannot be sustained. In other words, the accused cannot be convicted for offence of adulteration. In the present case, in absence of second part of sample it would be apparent that the respondent neither took the sample according to the provisions of P.F. Act and Rules nor second part of the sample was available. However, in both the cases right of the applicant under Section 13(2) of the P.F. Act was violated and, therefore, he cannot be convicted of offence of adulteration.
5 MCRC 5359/2011(6) On the basis of the aforesaid reasons when there is no possibility of conviction of the applicant or any accused in the present case then it is not necessary to harass the applicant to face the trial for so many years. It would be apparent that the sample was taken in the year 1990 and trial is still pending after 26 years of date of taking the sample and, therefore, now the prosecution cannot be permitted to go ahead in such a case where the accused persons cannot be convicted of offence of adulteration.
(7) On the basis of the aforesaid discussion, the petition under Section 482 of the Cr.P.C filed by the applicant S. Pathak, Area Manager, Brooke Bond India Ltd, Bhopal, is hereby allowed. The trial of the complaint Case No.2259/2007 pending before J.M.F.C., Gwalior, is hereby quashed for all the accused persons.
Copy of the order be sent to the trial Court along with its record for information and compliance. It is directed that the trial Court shall drop the proceedings against all the accused persons.
(N.K. Gupta)
mani Judge