Shafeek vs State Of Uttarakhand

Sharad Kumar Sharma, J

The revisionist is a convict for the commission of the offence under Section 7/6 of Food Adulteration Act, and as a consequence thereto and as a result of the judgment of the conviction dated 26th August, 2010, passed by the Court of Chief Judicial Magistrate Haridwar in Criminal Case 1777 of 2001, Food Inspector, Haridwar Vs. Shafeek, he has been convicted to undergo a sentence of simple imprisonment of six months along with fine of Rs.1,000/- has been impose upon him and in an event of failure to deposit the fine within the stipulated time, he has been further directed to undergone an additional 15 days of simple imprisonment. On a challenge being given to the said judgment of the Chief Judicial Magistrate, in a Criminal Appeal No. 124 of 2010, Shafeek Vs. State of Uttarakhand, the appellate Court too by the judgment dated 8th October, 2011, as passed by the Court of 2nd F.T.C./ A.D.J. Haridwar in Criminal Appeal No. 124 of 2010, has affirmed the sentence of the learned Trial Court.

The brief facts of case, which are involved and are necessary for consideration by this Court in order to elucidate the reasoning of this judgment, it becomes necessary to deal with certain facts and circumstances, under which, the prosecution as against the present revisionist has been initiated for the aforesaid offences, in particular, the offences, which may be detailed as to be the offence under Sections 7 (i)/ 2 (ia) (a) & m/16 (1) (a) (i) and (ii) of the Prevention of Food Adulteration Act, 1954.

As per the prosecution story, the case which was projected as against the revisionist was that on 1st October, 1997, the convict revisionist was apprehended at the place called as Krishna Nagar, Kankhal from where two samples pertaining to the milk of the buffalo and other food articles, which was being carried by him for the purposes of his business and consequential sale to the consumers, he was checked by the Team of the Food Supply Department and the samples in relation to the said product was collected by the local Health Officer and was marked as item No. 01-333/97-908. The sample of the buffalo milk, which was collected was of about 750 ml. They were placed in three clear bottles and after dividing it into the equal proportion, certain percentage of formalin was added in it in order to preserve its life, so that it can be suitably examined by the competent experts as to whether there was any adulteration of the sample thus collected or not made by any artificial human act of adulteration.

The sample thus collected was sent to the Public Analyst Department at Lucknow and the report, which was sent after the examination of the sample was placed on record as report No. 7692 of 11th November, 1997. As per the report, which was considered by the learned Trial Court and in the report it was found that it had lesser milk fat percentage, which was found lesser than 4% and milk solids percentage was below the minimum prescribed level of milk solid by 8.5 percentage. Accordingly, the sample thus collected, it was also found after analyst examination of samples that on its carbonate examination, the sample level did not commensurate to the specification, which it was required to carry as per the rules framed under the Food Adulteration Act and, consequently, it was deduced on the basis of the report submitted on 11th November, 1997 that the revisionist was guilty of the commission of the offence under 7/16 of the Food Adulteration Act to be read with Rule 41 of the Act as framed under the Act.

What is important and which is being distinctly argued by the learned counsel for the revisionist is that if the samples, which were collected on 1st October, 1997, and if the same was sent for examination by an analyst expert, and the report in that regard was itself admittedly submitted on 11th November, 1997, in that eventuality, there could not have been the registration of the complaint as against the revisionist and that too being lodged at a much belated stage and that too after one year eight months on 19th July, 1999. This highly belated registration of the complaint in 1999, in relation to the sample, which was collected in 1997, itself smack foul to the proceeding which has been adopted by the Courts below. The sample thus collected, the report on the same was thus submitted on it, much reliance cannot placed so a to have any nexus in relation to the complaint, which was registered on 19th July, 1999, and that too based on the report of 1st October, 1997, with its registration after one year eight months.

However, based upon the material, which was placed before the Trial Court, the parties led their respective evidence. In order to show the ignorance of the revisionist with regard to the commission of the offence under Section 7/16, of Food Adulteration Act. The Court after scrutinizing the report of the expert without considering the aspect as to what impact will a belated registration of the complaint would carry because complaint itself was registered almost after more than 1-1/2 year from the date of collection of the samples. Under law, as soon as a person is apprehended of his alleged involvement in the act of food adulteration, it is expected and required under law that on collection of the sample of the alleged adulterated product, the case ought to have registered forthwith before further steps was taken for sending the sample to the food laboratory for the analyst test. In the instant case, the samples were collected, the laboratory test was conducted, the report of expert was submitted and thereafter, the case was registered on 19.07.1999, much thereafter. But, the Courts below without drawing any implication and effect, it would have due to the belated registration of the complaint, the learned Trial Court vide its judgment rendered by the Court of Chief Judicial Magistrate on 26th August, 2010, had convicted the revisionist for undergoing the sentence for the aforesaid offences of six months of simple imprisonment and a fine of Rs.1000/- has been imposed upon him.

The judgment of the Chief Judicial Magistrate dated 26th October, 2010, has been affirmed in the Criminal Appeal No. 124 of 2010, Shafeek Vs. State of Uttarakhand. The sole question, which has been raised and which this Court has been called upon to consider and answer is on the issue as to what impact would a belated registration of the complaint, which was made only on 9th July, 1999, would carry as against the offence, which was the subject matter of the registration on an experimental study of the sample as made by the expert body by submitting the report of adulteration on 11th November, 1997, which was done apparently much prior in time, than to the registration of the complaint itself. If both the impugned judgments are scrutinized with regard to this aspect, none of the judgment considered or it could be said that perhaps both the Courts have rather skipped to consider the impact of delayed lodging of the complaint in 1999 as against the offence of food adulteration of 1997, which is alleged to have committed on1st October, 1997. This aspect in itself is quite sufficient to invoke the jurisdiction of this Court under Section 397 to be read with 401 of the Cr.P.C. because apparently, it appears as to be an abuse of process absolutely because it cannot be presumed that a sample, which was collected in 1997, which was put to test in November, 1997, itself could at all be a report and the sample, which could be sustained in the report submitted in the belated stage for registration of complaint in 1999 of an offence of 1997.

Consequently, this Court is of the view that the entire proceedings of Section 7/16 of the Prevention of Food Adulteration Act, which was initiated in July, 1997, resulting to registration of case in July, 1999, as against the present revisionist would be vitiated on account of a highly delayed filing of the complaint after almost 1-1/2 years of its registration date of collection of sample, it would vitiate the proceedings rights from its inception. Consequently, the sole basis for determining the liability of the revisionist being foundationed upon the FSL reported submitted on 11th October, 1997 cannot be taken into and read for the purpose of drawing of an offence of 1997 by its registration of complaint in 1999 because the report itself too would not be projected to be the correct figure when it is submitted before the Court at a belated stage of the sample collected on 01.10.1997 and the report given on 11.11.1997.

In view of the aforesaid limited ground itself that the report itself was lodged after 1-1/2 years from the date of collection of the sample and conduct of the expert examination on the sample would vitiate the entire proceedings and consequently, the Revision is allowed. The impugned orders are set aside. The Revisionist has already been granted bail by this Court on 14th November, 2011, he need not be surrender. However, as a consequence of the today's judgment, the bail bonds which has furnished for availing the bail would stand discharged.