Delhi District Court
Joginer Singh vs The State on 5 March, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 48/11
Joginer Singh,
S/o Sh. Randhir Singh,
Shri Bankey Bihari Dairy,
Gali No. 1, Main Jharoda Road,
Near Bus Stand,
Opposite Chowdhary Polyclinic,
Delhi-11084 ..... Petitioner
versus
The State
[Govt. of NCT of Delhi] ..... Respondent
Date of institution of the appeal : 27.07.2011
Date of reserving judgment/order : 14.02.2012
Date of judgment / order : 05.03.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 23.06.2011 and order on sentence dated 05.07.2011 of Shri Raghubir Singh, Ld. ACMM-II, New Delhi, in complaint case no. 109/07, vide which the appellants has been convicted for offences punishable u/s 16 (1) r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ) and sentenced the appellants to undergo rigorous imprisonment for nine months and to pay a fine of Rs.20,000/-, in default to undergo further simple imprisonment for 15 days.
CA No. 48/11 Page No. 1 of 6 -2-2. The facts in brief as stated in the complaint are that on 12.07.2007 at about 09.00 a.m., Food Inspector Sh. Gian Chand purchased 750 gms of "Ghee" , a food article for analysis from Sh. Joginder Singh, Vendor-cum-Proprietor of M/s Bankey Bihari Dairy, Gali No. 1, Main Jharoda Road, Near Bus Stand, Opp. Chaudhary Polyclinic, Delhi, where the said food article was stored for sale and said Sh. Joginder Singh was found conducting the business. After proper homogenization with the help of a clean and dry measure, the sample was equally divided and put into three separate clean and dry glass bottles and the each sample bottle was separately packed, fastened and sealed as per the requirements of PFA Rules. One sample was sent to Public Analyst, who gave his opinion that the sample does not conform to standards because the B. R. exceeded the maximum prescribed limit of 43; reichert value was less than the prescribed limit of 28 and Baudouin Test was positive.
3. The complaint was filed on 17.09.2007 in the Court after due investigations. The appellant filed an application for exercising his right u/s 13 (2) of the Act but the same was dismissed vide order dated 05.03.2010.
4. Notice for the violation of provisions of S. 2 (ia) (a) & (m) of the PFA Act, 1954, punishable u/s 16 (1), r/w S. 7 of the Act of 1954 was framed upon the accused vide order dated 25.08.2009, to which he pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined three witnesses viz. PW1 Sh. Yogesh Pratap, the then SDM/LHA, CA No. 48/11 Page No. 2 of 6 -3- PW2 Sh. Gian Chand, the Food inspector and PW3 Sh. J. P. Bhardwaj, the Food Assistant. The statement of accused was recorded u/s 313 Cr.PC, wherein he pleaded his innocence. No defence evidence was led on behalf of the accused.
6. Ld. Trial Court after considering evidence concluded that the sample of "Ghee" was adulterated and accordingly convicted and sentenced the appellant.
7. Aggrieved by the said conviction the present appeal has been filed.
8. The ld. Counsel on behalf of the appellants has argued that the sample of "Ghee" had been lifted on 12.07.2012 and the analysis thereof had been concluded by 18.07.2007, but the report of the Public Analyst was never sent to accused because of which he was unable to exercise his right u/s 13 (2) of the PFA Act. The application moved by the appellant for exercising his right u/s 13 (2) of the PFA Act had been wrongly dismissed by the Ld. MM as the accused had put in his appearance in the said case before the Ld. MM only on 17.03.2008. Furthermore, the 10 days' time provided in the Act for exercising his right u/s 13 (2) is not a period of limitation and even if the application u/s 13 (2) had been moved belatedly, the same should have been allowed. It is, thus, argued that by preventing the appellant from exercising his valuable right u/s 13 (2) of the Act, serious prejudice has been caused to the appellant, who is entitled to acquittal.
9. I have heard the arguments and perused the record. My observations are as under : -
CA No. 48/11 Page No. 3 of 6 -4-10. The main argument which has been addressed on behalf of the appellant is that valuable right of getting the sample tested through Director, CFL has been denied to him by wrong dismissal of his application u/s 13 (2) of the Act.
11. The scope of Section 13 (2) of the Act was considered by the Delhi High Court in the case of "R. N. Gujral v. Ram Rang Batra, 1985 (II) FAC Page 180", wherein also the application of the respondent u/s 13 (2) of the Act had been dismissed on the ground that the application had been filed three days beyond the period of 10 days provided in Section 13 (2) of the Act. The question arose whether the period of 10 days mentioned in Section 13 (2) of the Act lays down the Rule of Limitation. It was observed that Section 13 (2) of the Act being procedural in nature, cannot be strictly construed as it is only meant to ensure the authenticity of the report of the Public Analyst and also to provide the safeguard to innocent persons for if the sample was found to be not adulterated in the report of Director, CFL, the prosecution will have to be dropped. Section 13 (2) of the Act merely provides that in the event of receiving intimation regarding the Public Analyst report, the accused may make an application to the Court within 10 days for getting the second sample tested. The Section is silent as to the effect of not making an application within a period of 10 days. This in itself goes to show that it is not laying down the Rule of Limitation but only a procedure which ought to be construed liberally and unless there is an inordinate delay, the Court should not reject the application.
CA No. 48/11 Page No. 4 of 6 -5-12. Similarly, in the case of "Vishnu Swarup v. Delhi Administration, 1985 (II) FAC 184", it was noted that even if the first application for exercising the right u/s 13 (2) of the Act is withdrawn, the subsequent application u/s 13 (2) of the Act should not be disallowed on this ground if there are sufficient reasons given in the second application explaining the reason for withdrawal of application. The dismissal of the application u/s 13 (2) of the Act defeats the valuable right of the accused and causes prejudice to him and in such situation the benefit has to be extended to the accused.
13. Likewise, in the case of "Murari Lal v. State, 1998 (1) FAC 157", it was reiterated that the Section 13 (2) of the Act does not provide for limitation, but merely lays down a rule of procedure and an application moved beyond the period of 10 days, cannot be dismissed on this sole ground.
14. Moreover, if the application is made belatedly and the sample is found to be decomposed or deteriorated, the accused would not be able to derive any benefit on account of his conduct and delay, but the delay in itself should not be a ground for rejecting the application u/s 13 (2) of the Act, unless it is shown to be not bona fide or calculated to obstruct the trial of the Court.
15. Now, coming to the facts of the present case, though the complaint had been filed in the Court on 19.07.2007, the accused had put in his appearance in the Court on 05.05.2009. It is true that the application u/s 13 (2) of the PFA Act is dated 18.02.2010 and has been filed after the CA No. 48/11 Page No. 5 of 6 -6- framing of the notice, but the record shows that immediately on the second date since his appearance in the Court, the application had been moved. There may have been a delay in filing the present application, but that in itself should not have a ground for dismissing the application as Section 13 (2) of the Act, which confers a substantive right on the accused to get the sample retested. In case the sample was found to be putrified, decayed or was found to have undergone structural changes, the accused would not have been able to get any benefit u/s 13 (2) of the Act because of his conduct. However, the delay per se could not have been a reason for refusing to send a sample for examination u/s 13 (2) of the Act. The refusal to send the sample to Director, CFL, has defeated a valuable right of the accused and has deprived him of putting a defence. The appellant is, therefore, entitled to be given a benefit of the same and is entitled to be acquitted.
16. In view of the above discussion, the appeal is hereby allowed. Conviction is set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
17. Trial Court Record be sent back alongwith the copy of this order.
18. Appeal file be consigned to the Record Room. Announced in the open Court on this 05th Day of March,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 48/11 Page No. 6 of 6