Rajasthan High Court - Jaipur
Vijay Raj vs State Of Rajasthan on 1 December, 1995
Equivalent citations: 1996(2)WLC18, 1995(2)WLN646
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. Accused petitioner Vijay Raj is facing trial in the court of learned Chief Judicial Magistrate, Jodhpur for the offence under Section 7/16 of the Prevention of Food Adulteration Act.
2. The case against the accused petitioner as disclosed in the petition, was registered on the complaint of one Shyam Sunder, Food Inspector, The sample of Chilies power was taken on 29th July, 1989, which after analysis by the Public Analyst was found not conforming to the prescribed standard of purity.
3. The complainant examined himself on 5th January, 1995 and thereafter, the case was posted for arguments and charges. The charge was framed on 8th August, 1995 and thereafter, the complainant produced his further evidence. The complainant closed his evidence and accused petitioner was examined under Section 313, Cr.P.C. he was asked to produce his defence.
4. On 19th August, 1995, the accused petitioner moved an application to the court under Section 13(2) of the Prevention of Food Adulteration Act. to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Calcutta in his defence under Section 247 read with Section 243(2), Cr.P.C.
5. The learned Chief Judicial Magistrate on 22.8.95 rejected the aforesaid application of the accused petitioner on the ground, inter alia, that he could have sent the sample of article of food for analysis to the Central Food Laboratory, Calcutta within a period of ten days from the date of receipt of a copy of the report of Public Analyst.
6. Aggrieved against the Order passed by the learned Chief Judicial Magistrate, Jodhpur on 22.8.95, the accused petitioner filed a revision petition before the learned Additional Sessions Judge, No. 1, Jodhpur which was dismissed on 17.11.95 after healing both the parties.
7. Aggrieved against the aforesaid orders passed by both the courts below, the accused petitioner has filed the present petition solely on the ground that both the courts below have erred in rejecting his application to get the sample analysed by the Central Food Laboratory, Calcutta in his defence as contemplated under Section 247 read with Section 243, Cr.P.C. According to the accused petitioner, he is at liberty to lead defence evidence by procuring a report from the Central Food Laboratory, Calcutta to rebut the prosecution case. Chief Judl.. Magistrate was bound to call for any document in defence and his denial tantamount to negation of right to lead evidence in defence.
8. I have heard learned Counsel Mr. P.N. Mohanani appearing on behalf of the accused petitioner at length and perused the orders impugned.
9. It is urged before me by the learned Counsel for the accused petitioner that it is a basic principle of Criminal Jurisprudence which has been incorporated under Section 247 read with Section 243, Cr.P.C. that an accused is entitled to every opportunity to meet the prosecution and prove his innocence. Therefore, according to him, in a complaint case filed under Section 7/16 of the Prevention of Food Adulteration Act, an accused would be at liberty to claim that sample kept with the Local (Health) Authority be sent to the Central Food Laboratory, Calcutta for analysis. According to Mr. P.N. Mohanani, learned Counsel for the accused petitioner, denial of chance to adduce evidence in defence for incorrect reasons in the present case amounts flagrant violation of the mandatory provisions contemplated under Section 243(3), Cr.P.C. According to Mr. P.N. Mohanani, the orders impugned passed by both the courts below tantamount scuttling the defence evidence on flimsy ground.
10. In support of his aforesaid argument, learned Counsel for the petitioner placed before me a decision rendered by a learned Single Judge of this Court in the case of Joga Ram v. State reported in 1988 (2) RLW 02. Since the questions raised by the learned Counsel for the petitioner in the present petition are of general importance, therefore, I propose to deal with these questions in detail at admission stage.
11. From the arguments of the learned Counsel for the accused petitioner, the following questions emerge for consideration:
(A) WHETHER Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A of the Rules framed thereunder has the effect of repealing, altering or modifying Section 247 read with Section 243, Cr.P.C. ?
(B) WHETHER right of the accused petitioner to claim to send the sample for analysis to the Central Food Laboratory, Calcutta under Section 247 read with Section 243, Cr. P. C. is an absolute right of the accused petitioner and a Magistrate cannot refuse to send the sample to the Central Food Laboratory, Calcutta even if he is of the opinion, that such application has been moved to defeat the mandatory provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rules framed thereunder ?
(C) WHETHER if legislature provides a particular thing to be done in a particular manner, does it amount that it has prohibited to do the same thing in any other manner ?
12. The aforesaid questions formulated are inter liked, therefore, I propose to deal these questions together.
13. It is to be kept in view that Section 243, Cr.P.C. is a provision dealing with the procedure to be followed in the cases instituted on a police report while Section 247, Cr.P.C. lays down the procedure in the cases instituted other wise than on police report. In the present case, as mentioned earlier, the complaint has been filed by the Food Inspector Shri Shyam Sunder under Section 7/16 of the Prevention of Food Adulteration Act against the accused petitioner, hence, in the present case, Section 247, Cr.P.C. shall be attracted which provides that after conclusion of complainant's evidence, that accused be called upon to enter his defence and produce his evidence and provisions of Section 243 Cr.P.C. shall apply. Thus, the procedure to be followed after the accused is called upon to enter his defence, is the same in both the cases instituted upon a police report and those instituted otherwise than on police report.
14. While interpreting Section 243(2) and Section 247, Cr.P.C., it is also to be kept in view that the provisions of Section 13(2) of the Prevention of Food Adulteration Act and Rules framed thereunder have been amended from time to time to arrest such kind of complaint as made by the accused petitioner before me. Amended Section 13(2) of the Prevention of Food Adulteration Act which has been substituted by Act No. 34 of 1976 and is made effective with effect from 1.4.1976 clearly provides that on receipt of the report of the result of the analysis under Sub-section (1) to the effect that article of food is adulterated, the Local (Health) Authority shall after institution of the prosecution against the person from whom the sample of article of food was taken and the person if any whose name, address and other particulars have been disclosed under Section 14A of the Prevention of Food Adulteration Act forward in such a 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.
15. Amended Rule 9-A of the Prevention of Food Adulteration Rules, 1955 which is made effective w.e.f. 4.1. 1977 relevant for decision of the present case further provides that 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 said Act. Earlier Rule 9(j) of the said Rules to this effect has been committed w.e.f. 4.1.77. vide Notification No. GSR 4(E) dated 4.1.77. It is pertinent to mention that the aforesaid Amended Rule 9A of the Prevention of Food Adulteration Rules ,1955 has been further amended and by subsequent amendment in place of 'immediately' within a period of ten days' has been substituted by Notification No. GSR (E) dated 9.7.1984 and is made enforcible w.e.f. 9.7.1984.
16. The aforesaid Amended Rule 9A of the Prevention of Food Adulteration Rules, 1955 as it was in existence prior to 9.7.84 came up for consideration before the Apex Court in the case of Tulsi Ram v. State of Madhya Pradesh and their Lordships in Paragraph 7 of the said report ruled thus:
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While prescribing the manner in which the report may be forwarded the opening words of Rule 9A "The Local (Health) Authority shall immediately after institution of prosecution forward" are borrowed verbatim from Section 13(2) with the word 'immediately' inserted in between. The rule making authority could never have intended to amend the statute by super adding the word 'immediately' as indeed it was not competent to do. Rule 9A has to be interpreted so as to keep it in tune with and within the bounds of Section 13(2). The departure from the previous rule by refraining from mentioning a definite period of time as was done in the old rule makes it evident that the expression 'immediately' is used to convey a sense of continuity rather than a sense of urgency. It is not be be understood to mean the very next instant, the very next hour that very day or the very next day. It must be constructed in its setting. It is no use turning to dictionaries. Dictionaries give variegated meanings to words. What meaning is to be adopted depends on the context. Rule 9A is made in the context of the amended Section 13(2) which provides for the forwarding of the Public Analyst's report to the person from whom the sample was taken after the institution of prosecution and enables that person to apply to the court to have analysed by the Central Food Laboratory the sample kept with the Local (Health) Authority. In the context, the expression 'immediately' is only meant to convey 'reasonable despatch and promptitude' and no more. The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence. First to construe 'immediately' as meaning 'at once' or 'forthwith' and next to hold delay to be fatal to the prosecution would perhaps be to make Rule 9A ultra vires Section 13(2). We do not think it is permissible to interpret Rule 9A in such a way. The real question is, was the Public Analyst's Report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples of the Central Food Laboratory for analysis. If after receiving the Public Analyst's Report, he never sought to apply to the court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice. Our conclusions on this questions are: The expression 'immediately' in Rule 9A is intended to convey a sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity so as to facilitate the exercise of the statutory right under Section 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with Rule 9A is not fatal. It is a question of prejudice. Applying these principles, we find no merit in the submissions based on Rule 9A.
17. It is true that decision of Tulsi Ram's case (supra) was rendered by the Apex Court on 11.10.1984 and the aforesaid Rule 9A was amended and was enforced w.e.f. 9.7.1984 where in place of word 'immediately' was substituted 'within a period; of ten days'. Thus, Rule 9A aforesaid has been amended in consonance with Section 13(2) of the Prevention of Food Adulteration Act. Now in the present case, if the Local (Health) Authority within a period of ten days after institution of prosecution forwarded a copy of the report of the result of analysis in Form III an delivered to the accused-petitioner under Sub-rule (3) of Rule 7 by registered post then in such a situation the accused-petitioner has no option except to make an application to the court within a period of ten days from the date of the 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, Calcutta.
18. Indisputably, in the present case, the Local (Health) Authority within a period of ten days after institution of prosecution forwarded a coy of Public Analyst Report to the accused petitioner by registered post but he failed to make an application to the court to get the sample of the article of food analysed by the Central Food Laboratory, Calcutta within a period of ten days from the date of receipt of the copy of report as comtemplatec under Section 13(2) of the Prevention of Food Adulteration Act, hence, he is debarred to make such an application at the stage his defence under Section 247 read with Section 243(2), Cr.P.C.
19. There is yet another reason to arrive at the aforesaid conclusion, in as much as, Section 25(2) of the Prevention of Food Adulteration Act provides that notwithstanding the repeal by this Act of any corresponding law, all Rules, Regulations and Bye-laws relating to the prevention of adulteration of food made under such corresponding law and in force immediately before the commencement of this Act shall except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by the said Act and Rules framed thereunder. In my humble opinion, the provisions contemplated under Section 247 read with Section 243(3) Cr.P.C. will be deemed to be altered an amended to the extent its inconsistency with the mandatory provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A framed thereunder and an argument contrary to it is not acceptable.
20. It is not disputed before me that Section 13(2) of the Prevention of Food Adulteration Act. and Rule 9A of the Rules framed thereunder are the special laws while the provisions of Sections 247 and 243(2) of the Criminal Procedure Code are the general laws and if there are any conflict between the two provisions, then provisions contemplated under Special law will prevail.
21. In my considered opinion, the cumulative effect of the aforesaid discussions would be that in view of the specific provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A of the Prevention of Food Adulteration Rules, 1955, the accused petitioner can be permitted to adduce all evidence in his defence under Section 247 read with Section 243 Cr.P.C. to rebut the prosecution case and to prove his innocence except making an application to the court after expiry of period of ten days from the date of receipt of the copy of the Analyst's report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Calcutta.
22. Learned Counsel for the accused petitioner placed reliance on the case of Joga Ram (supra) which was decided on 15.4.88 based on a decision of Allahabad High Court in the case of Bharam Swaroop v. State 1979 (1) FAC (Allahabad 271) is per incurium, inasmuch as, when the aforesaid case was decided by the learned Single Judge of this Court, Section 13(2) of the Prevention of Food Adulteration Act as well as Rule 9A of the Prevention of Food Adulteration Rules 1955 framed under the aforesaid Section have been drastically amended by prescribing a limitation of ten days. Yet, learned Single Judge of this Court ruled in the case of Joga Ram (supra) that no limitation is prescribed under Section 13(2) of the Prevention of Food Adulteration Act as to when the accused can exercise the right conferred thereunder on him.
23. I am further of the opinion, that the decision rendered by the learned Single Judge of this Court in the case of Joga Ram (supra) and decision rendered by the learned Single Judge of Allahabad High Court in the case of Bharam Swaroop (supra) do not hold water in view of the decision rendered by the Apex Court in the case of Tulsi Ram (supra.)
24. I am also of the opinion that right of the accused petitioner to claim, to send the sample for analysis to the Central Food Laboratory, Calcutta under Section 247 read with Section 243, Cr.P.C. is not an absolute right. A Court can refuse to send sample for analysis to the Central Food Laboratory, if it is of the opinion that the application is made at the stage of Section 247, Cr.P.C. to defeat the mandatory provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A of the Rules framed thereunder. The impugned order passed by the learned Chief Judicial Magistrate refusing to send the sample for analysis to the Central Food Laboratory, Calcutta is, eminently just and proper.
25. It is well to remember that when Parliament provides a specific procedure to make an application to the court within a period of ten days from the date of receipt of; the copy of the Public Analyst report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Calcutta then it must be presumed that Parliament has prohibited the accused petitioner to move such an application before a Court after expiry of the aforesaid period at the stage of Section 247, Cr.P.C.
26. As a result of the aforesaid discussion, the instance Misc. Petition filed under Section 482, Cr.P.C. lacks merit and it is hereby dismissed in limine.