2013 ALL MR (Cri) 3511
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

A.P. BHANGALE, J.

Sakhahari Vyankatrao Borlepawar Vs. The State Of Maharashtra

Criminal Writ Petition No. 417 of 2002,Criminal Writ Petition No. 418-420 of 2002

14th June, 2013

Petitioner Counsel: Shri JOYDEEP CHATTERJEE
Respondent Counsel: Mrs V.A. SHINDE

Prevention of Food Adulteration Act (1954), S.13(2) - Delay in filing complaint - Condonation of - Complaints regarding adulteration in relation to food article described as "Kissan Jam" with shelf life of not more than 12 months - Samples already expired and now accused cannot exercise their legal right to have additional expert's opinion from Central Food Laboratory - Continuing prosecution against accused when they were deprived of their valuable right due to procrastination caused by executive action, prosecution cannot attain success - Continuing such prosecution would be nothing but an exercise in futility resulting in wastage of time - Condoning such inordinate and inexcusable delay is unsustainable - Delay cannot be condoned. (Paras 8, 9)

Cases Cited:
Shivkumar @ Shiwalmal Narumal Chugwani and others Vs. State of Maharashtra, 2010 ALL MR (Cri) 2818 =2010 (3) Bom.C.R.(Cri) 103 [Para 4]
Siraj-ul-Haq Khan and others, Vs. The Sunni Central Board of Saqf and others, AIR 1959 SC 198 [Para 6]


JUDGMENT

JUDGMENT :- Heard submissions advanced at the bar.

2. These Petitions arise out of common order dated 23.8.2002 passed by the learned Chief Judicial Magistrate, Nanded in respect of Misc Cri. Appln No.329/2000, 325/2000, 327/2000, 330/2000, whereby the learned Chief Judicial Magistrate, Nanded was pleased to condone the delay in filing the complaints by the Food Inspector in respect of samples of Mixed Fruit Jam (Kissan).

3. Briefly, facts are mentioned thus :-

In respect of Criminal Writ Petition Nos.417/2002 and 418/2002, samples were collected from vendor on 19.3.1997 by the Food Inspector, which were sent for analysis by Public Analyst on the following dates. Report by Public Analyst was received on 19.4.1997. Samples were referred for second opinion to second Public Analyst on 21.4.1997 and report of the second analyst was also received on 11.6.1997 in respect of samples referred to in Criminal Writ Petition No.417/2002 and on 20.1.1998 in respect of samples referred to in Criminal Writ Petition No.418/2002. Sanction was applied for on 19.6.2000, however, according to the petitioners for some unknown reasons, the Commissioner of Food and Drugs Administration had stayed the proceedings till 21.3.2000. In respect of Criminal Writ Petition No.419/2002 and 420/2002, samples from vendor were collected on 24.10.1996 and sent for analysis on 25.10.1996, while report from Public Analyst was received on 27.11.1996. Sanction was applied for on 18.12.1997. Complaints were not lodged on the ground that the Commissioner Food and Drug Administration did not grant consent until 21.3.2000. Consent for prosecution were granted on 9.6.2000. Thus, under these circumstances applications were made for condonation of delay for lodging the complaints which by the impugned order was condoned. Petitioners have serious grievance against their belated prosecution on the ground that sample of "Kisan Mixed Fruit Jam" in respect of which report of Public Analyst was called for has shelf life of not more than 12 months (one year). The petitioners who were prosecuted do have valuable legal right to insist upon the samples to be given to them so as to invite opinion of Central Food Laboratory, which can be considered as final by the Trial Court. Considering the belated prosecution of the petitioners, it would be, according to the the petitioners, worthless to insist upon the samples to be given to them , as such samples, expired after its shelf life of 12 months cannot be sent to Central Food Laboratory, as it would be empty formality. Under these circumstances, the impugned order have been assailed on the ground that delay was not explained properly with sufficient cause so as to permit prosecution of the petitioners belatedly as the delay was inordinate, inexcusable and caused prejudice to the legal defence of the petitioners. It is also contended that gross and unpardonable delay for which there was no excuse could never have been condoned after expiry of sample's shelf life. Therefore, on behalf of the petitioners it is submitted that learned Trial Magistrate erred in law to condone the inexcusable delay in the facts and circumstances of the present cases.

4. Learned Advocate representing the petitioners invited my attention to Section 470 of Criminal Procedure Code which require prosecution to exercise due diligence and on that ground alone delay may be condoned. In the present case, it is submitted that there was no any judicial order of injunction or any judicial order operating against the prosecution to prevent them from lodging the complaints. Merely, because the Commissioner of Food and Drug Administration had directed stay of the prosecution and gave an executive direction, preventing the Food Inspectors concerned from lodging the complaints cannot be considered as sufficient cause to condone the delay in lodging the complaints. More so, whether accused cannot now defend the case by forwarding the samples to Central Food Laboratory. Learned Advocate for the petitioners placed his reliance upon the ruling in Shivkumar @ Shiwalmal Narumal Chugwani and others Vs. State of Maharashtra reported in 2010 (3) Bom.C.R.(Cri) 103 : [2010 ALL MR (Cri) 2818] (Nagpur Bench) to argue that, when accused have now lost their legal rights to send the sample to Central Food Laboratory because of expiry of Shelf life of the sample, valuable right created statutorily under section 13 (2) of the Prevention of Food and Drugs Act is lost forever by the petitioners/accused. Therefore, in the present cases also learned Magistrate ought to have refused to condone the delay. Learned Advocate for the petitioners in all petitions made reference to the observations made by this Court in paragraph No.4 of the aforesaid ruling to substantiate this contention that Administrative Delay cannot at all mitigate the valuable right of the accused to insist upon the samples to forward the same for re-analysis or re-test from the Central Food Laboratory, since, the Shelf Life of the sample is already expired and therefore, valuable legal right is lost forever for the accused in the present petitions. It appears that this Court had considered identical submissions to conclude that when there is violation of valuable right of the accused persons under section 13 (2) of the Prevention of Food Adulteration Act and since it is settled law that in case of such violation, the prosecution cannot succeed, it is of no use in continuing the prosecution which cannot attain success. The aim of criminal law is prosecution and not the persecution.

5. Learned Advocate for the petitioners invited my attention while reading Section 470 (2) of Criminal Procedure Code that an injunction or order which is contemplated to exclude period of its operation while calculating the period of limitation is necessarily judicial order contemplated under Criminal Procedure Code. According to him, even considering other allied legal provisions i.e. section 36 of the Specific Relief Act, to construe the meaning of injunction, is necessarily issued from the court and not from the Executive. Term 'order' is defined in Section 2 (14) of the Civil Procedure Code which means 'formal expression of any decision of a Civil Court which is not a decree'. Learned Advocate for the petitioners, therefore, submitted that an injunction or an order which resulted for staying the proceedings has to be a judicial order or injunction by judicial order, then only Court may consider and condone the delay while computing the period of limitation for filing the complaint.

6. Learned Advocate for the petitioners also made reference to ruling in Siraj-ul-Haq Khan and others, Vs. The Sunni Central Board of Saqf and others reported in AIR 1959 SUPREME COURT 198 to emphasize his submission that term "injunction" or "Order" used to Section 470 (2) of Criminal Procedure Code must necessarily be construed as Judicial Order or Injunction as the words used by the Section has to be strictly construed in favour of the accused.

7. Learned APP Mrs. V.A.Shinde for respondents, on the other hand, submitted that prosecution had explained sufficient cause to the satisfaction of learned Trial Magistrate and therefore, delay was rightly condoned. Learned APP also submitted that, when the Commissioner of Food and Drugs Administration received confidential communication that he decided to institute the complaints group wise and therefore, had stayed the prosecutions. Learned APP made reference to the submissions made in affidavit-in-reply, in the present petitions by Food Inspector concerned, and submitted that it was purely a Judicial discretion for learned Trial Magistrate to Condone the delay in cases of belated complaints.

8. After hearing the submissions and considering the facts appearing in respect of all these petitions in Tabular Chart as below,

Case No. Cri. W.P. Nos.

Dt when Sample drawn Sent for Analysis Report received on Sample sent to 2nd Analysis Report of 2nd Analyst receoved on Sanction applied for
417/2002 19.03.97 20.03.97 19.04.1997 21.4.97 11.6.97 19.06.2000
418/2002 19.03.97 20.03.97 19.04.1997 21.4.97 20.1.98 19.06.2000
419/2002 24.10.96 25.10.96 27.11.1996 -- -- 18.12.1997
420/2002 24.10.96 25.10.96 27.11.1996 -- -- 18.12.1997

Stay order of Commissioner

Stay lifted on Date of Sanction/consent Delay condonation appln. Complaint filed on Delay condoned on
25.6.1998 21.3.2000 9.6.2000 16.8.2000 09.9.2002 23.8.2002
25.6.1998 21.3.2000 9.6.2000 16.8.2000 09.9.2002 23.8.2002
25.6.1998 21.3.2000 9.6.2000 09.8.2000 28.8.2002 23.8.2002
25.6.1998 21.3.2000 9.6.2000 09.8.2000 28.8.2002 23.8.2002

along with an application preferred before the learned Trial Magistrate, for condonation of delay, one has to observe that delay caused by the Executive order of the Commissioner Food and Drug Administration, particularly, when prosecution was in respect of alleged adulteration in relation to food article described as 'Kisan Jam' with Shelf Life of not more than 12 months, now the petitioner/accused cannot exercise their legal right to have additional expert's opinion from the Central Food Laboratory by insisting upon the prosecution to give them sample for forwarding it to the Expert. Hence, as concluded by this Court in the Rulings of Shivkumar's case, to continue the prosecution under the circumstances against the petitioners when they were deprived of their valuable right under section 13 (2) of Prevention of Food Adulteration Act due to procrastination caused by executive action, the prosecution cannot attain success. Therefore, to continue such prosecution despite, the settled legal position mentioned in Shivkumar's case (which was confirmed by the Hon'ble Supreme Court of India in S.L.P.No.6332/2010, decided on 13.9.2010) would be nothing but an exercise in futility resulting in wastage of time not only for the Court but also by all those concerned in the prosecution proceedings.

9. For the aforesaid reasons, therefore, the impugned order condoning the inordinate and inexcusable delay in the facts and circumstances of the case is unsustainable, deserves to be quashed and set aside.

10. Impugned order, is therefore, quashed and set aside. Petitions are allowed accordingly. Rule is made absolute accordingly.

Petition allowed.