1999 Supreme(Raj) 985
RAJASTHAN HIGH COURT
Amaresh Ku.Singh, J.
Onkar Lal - Appellant
Versus
State of Rajasthan - Respondent
S.B. Cri. Misc. Pet. No. 422 of 1996.
Decided On : 9-03-1999
Headnote:
PREVENTION OF FOOD ADULTERATION ACT - SECTION 13(2) - RIGHT OF ACCUSED TO SEND SAMPLE TO CENTRAL FOOD LABORATORY - TIME LIMIT - WHETHER RIGHT EXTINGUISHED IF APPLICATION NOT FILED WITHIN 10 DAYS - REFERENCE TO LARGER BENCH.
Fact of the Case:
Petitioner, facing trial for an offence under the Prevention of Food Adulteration Act, challenged the rejection of his application to send a sample of the food article to the Central Food Laboratory for analysis. The application was rejected on the ground that it was not filed within 10 days from the date of receipt of the Public Analyst's report, as required by Section 13(2) of the Act. The petitioner contended that the 10-day time limit was directory and not mandatory, and that he had a right to file the application at any time before the conclusion of the trial.
Finding of the Court:
The court observed that there was a conflict of decisions among single benches of the High Court on the issue of whether the 10-day time limit in Section 13(2) was mandatory or directory. Some benches had held that the time limit was mandatory and that failure to comply with it extinguished the accused's right to send the sample for analysis, while others had held that the time limit was directory and that the accused could still file the application after the expiry of 10 days. The court noted that the Supreme Court had held in Tulsi Ram v. State of M.P. that the 10-day time limit in Rule 9-A of the Prevention of Food Adulteration Rules, 1955 (which was similar to Section 13(2) of the Act) was directory and not mandatory. However, the court found that the Supreme Court's decision in Tulsi Ram did not address the question of whether the accused's right to send the sample for analysis was extinguished if the application was not filed within the 10-day time limit.
Issues: 1. Whether the 10-day time limit in Section 13(2) of the Prevention of Food Adulteration Act was mandatory or directory. 2. Whether the accused's right to send the sample for analysis was extinguished if the application was not filed within the 10-day time limit.
Ratio Decidendi: The court held that the question of whether the accused's right to send the sample for analysis was extinguished if the application was not filed within the 10-day time limit was a substantial question of law that required consideration by a larger bench. The court noted that the issue had been decided differently by different single benches of the High Court, and that the Supreme Court's decision in Tulsi Ram did not address the issue directly. The court therefore referred the question to a larger bench for consideration.
Final Decision: The court referred the question of whether the accused's right to send the sample for analysis was extinguished if the application was not filed within the 10-day time limit to a larger bench for consideration.
JUDGMENT
1. - Heard the learned counsel for the petitioner and the learned Public Prosecutor.This petition under section 482 Cr.P.C. is directed against the order dated 16.4.96 passed by the learned Chief Judicial Magistrate, Jodhpur in criminal case no. 143/94 and the order dated 19.6.96 passed by the learned District Judge, Jodhpur in criminal revision petition no. 41/96 affirming the order dated 16.4.96 passed by the learned Chief Judicial Magistrate.
2. The facts giving rise to the present petition may be briefly summarised as below :
3. The petitioner Onkar Lal is facing trial in the Court of Chief Judicial Magistrate, Jodhpur in criminal case no. 143/94 on the charge punishable under section 7 read with Section 16 of the Prevention of Food Adulteration Act (in short 'the Act' hereinafter) in the court of Chief Judicial Magistrate, Jodhpur. According to prosecution, samples of Til Oil were collected by the Food Inspector from the shop of the accused on 9.10.93. The sample had been sent to the Public Analyst for analysis. On 6.5.94, a complaint was filed against the accused in the Court of Chief Judicial Magistrate, Jodhpur. A copy of the report of the Public Analyst was sent to the accused on 9.5.94 under Rule 9A of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) by registered post. According to prosecution the copy of the report of the Public Analyst was delivered to the accused on 10.5.94. After the appearance of the accused before the learned Chief Judicial Magistrate, trial was commenced, evidence of the prosecution was recorded and the statement of the accused were also recorded under section 313 Cr.P.C. The accused petitioner moved an application under section 13(2) of the Act praying that the second sample collected by the Food Inspector be sent to the Central Food Laboratory for analysis. The application was contested by the Assistant Public Prosecutor. During the arguments before the learned Chief Judicial Magistrate, the counsel for the accused placed reliance on the decision given by a learned Single Judge of this Court in Joga Ram v. State 1968 RLW 2 and N.K. Dixit v. C.J.M., Sitapur 1995 Cr.L.J. 3493 .
4. On the other hand, the Assistant Public Prosecutor submitted that in view of the amendment made in Section 13 of the Act, the law laid down by this Court in Joga Ram v. State (supra) was not applicable. The Assistant Public Prosecutor placed reliance on the decision given in Tulsi Ram v. State of M.P 1984(4) SCC 487 , Sanwar Mal v. State 1987(II) F.A.C. 302 , Vijay Raj v. State S.B. Criminal Misc. Petition No. 668/95 decided on 1.12.95 and Venketeshriya Rice Co. Ltd. v. State of A.P AIR 1972(SC) 51 . In view of the later decision given by a learned Single Judge of this Court in Vijay Raj v. State (supra) reported in 1996(2) WLC (Raj.) 18, the learned Chief Judicial Magistrate, Jodhpur rejected the application filed by the accused under section 13(2) of the Act.
5. Criminal Revision Petition No. 41/96 Onkar Lal v. State was filed in the Court of District Judge, Jodhpur against the order dated 16.4.96 passed by the learned Chief Judicial Magistrate, Jodhpur. The District Judge upheld the order dated 16.4.96 passed by the learned Chief Judicial Magistrate and rejected the criminal revision petition, in view of the decision given by this Court in Vijay Raj v. State (supra).
6. Feeling aggrieved by the order passed by the learned Chief Judicial Magistrate, Jodhpur and the order passed by the District Judge, Jodhpur, the petitioner has approached this Court under section 482 Cr.P.C. with the prayer that the impugned orders be set aside and the application filed by him under section 13(2) of the Act be allowed.
7. The only question to be decided in this petition is whether the view taken by the learned Chief Judicial Magistrate and by the District Judge that if an application for sending one of the samples to the Central Food Laboratory is filed under Section 13(2) of
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