CR.RA/497/1998 of STATE OF GUJARAT Vs SHAKTI DEVRAM TANK on 26 December 2008

Issues

ORAL JUDGMENT

1. Heard Ms.D.S. Pandit, learned Additional Public Prosecutor, appearing on behalf of the applicant.applicant.

2. The applicant-State of Gujarat has preferred present Revision Application challenging the legality and validity of the order dated 20[th ]present Revision Application challenging the legality and validity of the order dated 20[th ]

June 1998 passed below Ex.13 by the learned Judicial Magistrate First Class, Gandhinagar, in Criminal Case No.2903 of 1996, whereby the learned Magistrate has quashed and set aside the process issued by the trial Court earlier by exercising powers under Section 204 of the Code of Criminal Procedure, 1973.

3. The complainant-G.M. Dalwadi, Food Inspector, had instituted the prosecution against five accused persons, including the orig. vendor- Shakti Dev Ram Tank for the offences punishable under Sections 7(ii) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1955 (hereinafter referred to as 'the Act'), alleging that the orig. accused have violated Rules 32(e) and 32(f) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rules').

The orig. accused were found selling

misbranded articles as defined under Clause 2(ix)(k) read with aforesaid Rules. The complainant had purchased saffron mixed 'Vimal Gutka' from orig.accused no.1. The said Gutkas were in polythene pouches and each polythene pouch was containing 50 small packets of 'Vimal Gutka'. These packets were not bearing necessary details which were required to be mentioned on the packets and thus, according to the prosecution, orig. accused can be said to have committed the offence punishable under the aforesaid Sections of the Act. On registration of the complaint, the Court decided to issue process on 15[th] June 1996, but three accused out of total five accused approached the learned Magistrate preferring an application under Section 204 of the Code of Criminal Procedure, 1973 and prayed for quashing and setting aside the process because Rules 32(e) and 32(f) of the Rules have been declared ultra vires. The learned counsel appearing for the orig.accused placed reliance on three decisions i.e. (1) in the case of M. Mathew v. State of Kerala, reported in AIR 1992 SC 2206, (2) in the case of Goodrick Group Ltd.v. State of Punjab, reported in 1997 (III) FAJ 226 and (3) in the case of Dwarkanathandothersv.Municipal Corporation, Delhi, reported in 1971 SCC (Cri)

514.

4. The trial Court has observed that in absence of any decision of this Court, the finding in

the above cited case before the Punjab and Haryana High Court is binding to this Court and, therefore, the process issued earlier is required to be quashed and set aside.

5. Ms.D.S. Pandit, learned Additional Public Prosecutor appearing on behalf of applicant-State, has drawn attention of this Court towards the decision rendered by this Court (Coram: A.K. Trivedi, J) on 10[th] August 2000 in Criminal Revision Application No.34 of 2000, in the case of State of Gujarat on behalf of B.J.Patel, Food Inspector v. Rajubhai Gokuldas Manwani. It is submitted that in the cited decision, the learned counsel appearing for the accused-Rajubhai Manwani tried to convince this Court by canvassing the arguments which were placed before the trial Court in the CR.RA/497/19985/11JUDGMENT

present case. In the cited decision, the accused was dealing in distribution of the product known as “Kesari Milk Masala (Everest)” and it was found misbranded. The decision in the case of Dwarkanath (supra) was cited before the said Court, but while dealing with the submissions made by learned Additional Public Prosecutor, this Court has held that the case of Dwarkanath (supra) now would not help the accused on account of insertion of amended Section 32(e), which has been brought into force with effect from 30[th ]

April 1989. It would be beneficial to

reproduce the relevant paragraph nos.3, 4 and 5 of the above cited decision in the case of State of Gujarat v. Rajubhai (supra), which are as under :

3. The learned Chief Judicial

Magistrate heard the parties of the said Criminal Case no.23/98 and vide impugned order dated 5-11-1999 held that said complaint is not maintainable at law in view of the fact that Rule 32(e) of the Act has been struck down by CR.RA/497/19986/11JUDGMENTthe Supreme Court in the matter of DWARKANATH VS, MUNICIPAL

CORPORATION, DELHI, reported vide AIR 1971 SC 1844. That in view of the said decision, non mentioning of batch number or code number on the label of a product as prescribed under Rule 32(e) of the rule cannot be said to be offence under Section 2(ix)(a) of the Act read with Section 16(1)(a)(i) of the said Act and on the basis of said finding rejected the Criminal Case no.23/98 by dropping the proceedings and discharged the respondents nos.1 to 5 who were the accused of the said case. The State of Gujarat has challenged the said order in the present proceedings.

4. Learned A.P.P. Mr. S.S. Patel has submitted at the Bar that the trial Court has committed gross error of law by not considering the fact that though Rule 32(e) of the rule was struck down by the Supreme Court in the said matter of DWARKANATH(Supra).TheCentral

7/11

Analysis

Government vide notification dated 29-4-1987 bearing no.GSR 422(e) amended Rule 32(e) and brought it into force with effect from 30th April, 1989 whereby it is made obligatory on the manufacturer or marketer to mention in the label of the product the batch number or code number in numerical or alphabetic form or in continuation of the same as a distinguishing number.

That in the instant case, the sample of said product was taken on 19-7-1997 and the Public Analyst vide his report no.Q3/214/97 dated 20-8-1997 has observed that label does not contain batch number on any part of the said product and thereby the said sample of Kesri Milk Masal(Everest) is misbranded under Section 2(ix)(k) of the Act. Under the circumstances, the decision rendered by the Supreme Court in the matter of DWARKANATH'S case (Supra) has no application to the facts situation involved in the matter as amended Rule 32(e) of the Rules was in force and for the breach of the said Rule, the accused(responmdents) are liable to be prosecuted for the offence made punishable under Section 16(1)(a)(i) of the Act.

5. Learned Counsel Mr.Karamte has urged that amended Rule 32(e) is not materially different than the original Rule 32(e) of the Rules and in the matter of DWARKANATH (Supra), the Supreme Court has held that Rule 32(e)

is ultra vires the rule making power of the Government under Sec.23(1) of the Act. That thereby, even if it is believed that amended rule was in force on the date of alleged offence, the said Rule cannot be said to be a valid Rule and the complaint based on the same cannot be maintainable. That various High Courts have followed the decision of DWARKANATH'S case (Supra) even after said amendment of Rule 32(e). To support the submission Shri Karamte has referred to and relied on the observations made by the High Court of Himachal Pradesh in the matter of

M/s.LIPTONINDIALTD. VS.STATEOF HIMACHAL PRADESH, reported vide PFA Cases 1991(1) page 1 as well as the observation made by the Delhi High Court in the matter of PRINCE GUTKA LIMITED VS. STATE AND ANOTHER, reported vide PFA Cases 1999(2)

page 239.”

6. Ultimately this Court in the cited decision found that the accused at least can be subjected to prosecution and the prosecution initiated could not have been quashed and set aside. This Court ultimately decided that the order impugned in the above cited matter dated 05[th] November 1989 is required to be quashed and set aside and the Chief Judicial Magistrate should be directed to restore the Criminal Case after issuance of notice to the accused. It appears that the Punjab and Haryana High Court was not made aware about the development which had taken place in law in the year 1986. Improper assistance perhaps might have led the said High Court into different direction. Acquitting the accused is materially different than quashing and setting aside the proceedings or the process. The little scope for prosecution to link the accused with the crime would entitle the prosecution to continue with the prosecution initiated. The accused of a Criminal Case is

entitled to place its all defence pleas, including the maintainability of the prosecution in a balance case. This appears to be a balance case. The very legal point can be taken care off at the time of final submissions on the strength of evidence, which may be led by the prosecution.

7. According to me, the present Revision Application is covered by the above cited decision relied upon by the learned Additional Public Prosecutor. There is no need to go into further discussion because in the cited decision this Court has considered one case where 'Gutka' was being sold and the accused were prosecuted for violation of the very Rules i.e. Rules 32(e) and 32(f) of the Rules and hence, the present Revision Application is required to be allowed.

8. In view of aforesaid observations and discussion, the present Revision Application is hereby allowed. The judgment and order dated 20[th] June 1998 passed by the learned Judicial Magistrate First Class, Gandhinagar, in Criminal Case No.2903 of 1996, is hereby quashed and set aside. The concerned trial Court is directed to restore the prosecution against the accused and proceed further with the prosecution after issuance of formal notice for appearance to the accused shown in the cause-title of the orig.complaint.

Rule is made absolute accordingly.

R & P, if any brought, be sent back to the concerned trial Court forthwith.

Aakar

(C.K. Buch, J)