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CR.RA/576/1998 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 576 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
HOTEL
LAXMI THROUGH NARAYAN LRAVAL & 5 - Respondent(s)
=========================================================
Appearance :
Mr
Kartik Pandya, Addl.PUBLIC
PROSECUTOR for
Applicant(s) : 1,
RULE SERVED for Respondent(s) : 1,4 - 5.
MR
BS PATEL for Respondent(s) : 2,
MRS RANJAN B PATEL for
Respondent(s) : 2,
MR RR MARSHALL for Respondent(s) : 3,
6,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 06/08/2009
ORAL
JUDGMENT
1. The
present revision application is filed by the State of Gujarat against
the impugned order dated 12.6.1998 passed by the learned 2nd
Judicial Magistrate First Class , Ankleshwar in Criminal Case No.5130
of 1995 below Exhs. 25 & 26 by which the learned JMFC court has
allowed the discharge application submitted by the original accused
No.1 & 2.
2. When
the matter is called out, learned Advocate Mr B S Patel for
respondent No.2 is not present. Learned Advocate on behalf of
respondents No.3 & 6 is also not present when the matter is
called out. Hence I have heard the learned APP for the State.
3. In
brief, it is the case of the prosecution that Food Inspector Mr S B
Aggrawal, on 22.8.1995 visited Hotel Laxmi run by accused No.1. He
collected sample of Bisleri soda which was kept for sale. After
following the due procedure, one sample of the said soda was sent to
the public analyst and as per the report of the public analyst,
Bisleri soda was found adulterated. Thereupon, after obtaining
sanction from the competent authority, Food Inspector has lodged
complaint on 10.11.1995. Thereupon during the course of trial, on
30.5.1998, accused No.3 & 6 submitted application for discharge
before the Magistrate Court. It is contended in the application that
sample was sent to the Central Food Laboratory on 23.4.1996 which was
received from the Central Food Laboratory on 9.5.1996 and the report
was sent on 22.7.1996. It is submitted that as per section 13
(2-B), the Central Food Laboratory ought to have sent this report
within 30 days and in this case, admittedly, the report was not sent
within 30 days. So there is breach of mandatory provisions of
section 13 (2-B) and therefore, the accused be discharged from the
charges levelled against them.
4. Learned
APP Mr Kartik Pandya has submitted that if it is found by the court
that no prejudice is caused to the accused, even if the report is
received after a period of 30 days from the Central Food Laboratory,
merely on this ground, the accused could not be acquitted.
5. This
court has also gone through the orders passed by the trial court.
The trial court has held that provisions of 13(2-B) of the Food
Adulteration Act is mandatory and provisions of this section are not
complied with in this case. Reliance is also placed by learned
APP Mr Kartik Pandya in the case of Jagdish Prasad v. State of
U.P. (1985 (2) FAC. P 32) and Nandakishor v. State of
Rajasthan (1991 (1) P. 36. According to both these
judgments, provisions of section 13 is in the nature of directory
and if the report is obtained after 30 days from the Central Food
Laboratory and if not produced before the court, then only on this
ground the accused is not entitled to discharge. Here, in this case
nothing has come on record which shows that right of the accused is
affected only because of receiving the report from Central Food
Laboratory after 30 days. This is a mixed question of law and
fact which can be decided only during the trial after recording
evidence. It is clarified that the accused is at liberty to raise
this contention during the trial and if the said contention is
raised, the trial court will decide the same on its own merit,
without being influenced by the order of this court.
6. In
view of the aforesaid, the impugned order dated 12.6.1998 passed by
the learned 2nd
Judicial Magistrate First Class , Ankleshwar in Criminal Case No.5130
of 1995 below Exhs. 25 & 26 is hereby quashed and set aside.
This Revision Application is allowed. Rule is made absolute
accordingly.
[M.D.
SHAH, J.]
msp
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