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Bhola Nath Nayek Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1977CriLJ154
AppellantBhola Nath Nayek
RespondentThe State and anr.
Cases ReferredRamchandra Keshav v. Govind Joti
Excerpt:
- .....hooghly and also for quashing of the proceeding pending before him. it appears that on 25-6-74 a food inspector and sanitary inspector of arambag public health circle, district hooghly, took from the premises, allegedly belonging to the petitioner, at dihalpara a sample of wheat atta for the purported analysis under the provision of the prevention of food adulteration act, 1954. the public analyst analysed the sample sent to him on september 5, 1974 and made a report to the food inspector that the sample was adulterated. the copy of that report was received immediately thereafter by the food inspector, arambag but no copy of it was given to the petitioner till november 10, 1975. it further appears that on the receipt of the said report of the public analyst the district health officer,.....
Judgment:
ORDER

A.N. Banerjee, J.

1. This Rule is for setting aside an order dated 3-12-75 passed by the learned Sub-Divisional Judicial Magistrate, Hooghly and also for quashing of the proceeding pending before him. It appears that on 25-6-74 a Food Inspector and Sanitary Inspector of Arambag Public Health Circle, District Hooghly, took from the premises, allegedly belonging to the petitioner, at Dihalpara a sample of wheat Atta for the purported analysis under the provision of the Prevention of Food Adulteration Act, 1954. The Public Analyst analysed the sample sent to him on September 5, 1974 and made a report to the Food Inspector that the sample was adulterated. The copy of that report was received immediately thereafter by the Food Inspector, Arambag but no copy of it was given to the petitioner till November 10, 1975. It further appears that on the receipt of the said report of the Public Analyst the District Health Officer, Hooghly filed a complaint dated 26-12-74 before the Sub-Divisional Judicial Magistrate, Arambag. On the basis of it the learned Magistrate took cognizance of the offence under Section 16(a)(i) of the Prevention of Food Adulteration Act on 3-1-75 and issued summons upon the accused petitioner. After the appearance of the accused petitioner and after he had filed an application for his discharge copies of the documents upon which the prosecution wants to rely and also the initial statement of the complaint were supplied to him (vide Order No. 12 dated 10-11-75). On 3-12-75 the learned Magistrate rejected the application of the accused petitioner regarding non-maintainability of the complaint and his prayer for discharge. Thereafter the petitioner moved this Court and obtained the present Rule.

2. Mr. Balai Chandra Roy learned Advocate appearing for the accused petitioner submitted that since the Food Inspector failed to comply with the provisions of Rule 9(j) of the Prevention of Food Adulteration Rules. 1955. as amended by a Notification dated 13-2-74 the accused petitioner was deprived of a valuable right and that the copy which was subsequently supplied to him on 10th November, 1975 could not be taken to be a copy of the report of the Public Analyst to be supplied to him in accordance with the terms of Rule 9(j) of the aforesaid Rules and as such the entire proceedings had become vitiated and was liable to be quashed. It was the contention of Mr. Roy that since the statutory Rules provided for supply of the copy of the report of the Public Analyst within ten days of the receipt of the said report by the Food Inspector, subsequent supply of such copy will not be in terms of Rule 9(j) and it must be deemed in the eye of the law that no such copy was supplied to the accused petitioner. That being the position Mr. Roy submitted that the accused had not with him any copy of the report of the Public Analyst which forms the very basis of the complaint filed by the District Health Officer, Hooghly and accordingly, there could be no prosecution of the accused petitioner and the continuation of the proceeding would be an abuse of the process of law.

3. Mr. S.K. Palit, learned Advocate appearing for the State submitted that failure on the part of the Food Inspector to perform his statutory duties in accordance with the provisions of Rule 9 of the Prevention of Food Adulteration Rules, 1955 may or may not ultimately affect the prosecution but having regard to the present stage of the proceeding it cannot be said that the continuation of it would be an abuse of the process of law, particularly when copy of the report of the Public Analyst has been furnished to the accused petitioner who was entitled to avail of the provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954.

4. It thus appears that the main point for consideration is whether failure on the part of the Food Inspector to comply with the terms of Clause (j) of Rule 9 of the Prevention of Food Adulteration Rules, 1955 deprives the accused petitioner of a valuable right to such an extent so as to lead this Court to hold that the continuation of the proceeding pending in the court of the learned Magistrate would be an abuse of the process of law. Prior to the amendment of Clause (j) of Rule 9 it stood as follows :

To send by hand or registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or Rules made thereunder as soon as the case is filed in the court.

After the amendment it is as follows:

To send by registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample conforms to the provisions of the Act or Rules made thereunder then the person may be informed of the same and the report need not be sent.

It is thus apparent that there is difference of considerable importance between Clause (j) of Rule 9 as it stood prior to the amendment and Clause (j) after the amendment. Previously a copy of the report of the Public Analyst could be sent by hand or registered post to the person from whom the sample was taken as soon as the case is filed in the court. Therefore, a copy of such report was required to be sent either by hand or registered post to the person concerned after the filing of the case. But after amendment a copy of such report is to be sent by registered post and that also within ten days of the receipt of the report of the Public Analyst. I need hardly say that the Rules which were framed in exercise of the powers conferred by Sub-section (2) of Section 4 and Sub-section (1) of Section 23 of the Prevention of Food Adulteration Act, 1954 have statutory force and form part of the statute. Therefore, it is the statutory duty and obligation of the Food Inspector to comply with the terms of Rule 9(j), as amended. Failure on his part to comply with such terms not only deprives the accused of a valuable right but also causes prejudice to him. It must be taken into account that there was certain purpose and object for substituting the present Rule 9(j) after deleting the previous Rule 9(j). The intent was to give an opportunity to a person from whom sample has been taken to have such sample examined by an expert of his choice, if he is so inclined, before any prosecution is launched against him. Such right is independent of the provisions of Section 13(2) of the Prevention of Food Adultetion Act. That this is so will be evident when we find that previously the copy of the report of the Public Analyst was to be filed after the filing of the case. But at present it is to be filed within ten days from the receipt of the report of the Public Analyst by the Food Inspector. There were cases in which an accused could not avail of the benefit of the provisions of Sub-section (2) of Section 13 of the Prevention of Food Adulteration Act because of the lapse of long time in the filing of the case.

5. In the case of R.C. Banerjee v. A.K. Chatterjee, reported in (1974) 78 Cal WN 530 it was found by a Bench of this Court that the delay in initiating the proceeding against the accused which resulted in making an application under Section 13(2) of the Prevention of Food Adulteration Act 1954 infructuous and for which the accused were not responsible and the rejection of his application under Section 13(2) on that ground has affected a valuable right given to him under Section 13(2) and had materially prejudiced them in their defence. In such circumstance the Bench held that the continuation of the proceedings in the circumstances would be an abuse of the process of the court. It is for the purpose of obviating such a situation Rule 9(j) of the Prevention of Food Adulteration Rules 1955, as amended, can be looked into. The very purpose of such an amendment will be taken away if the Food inspector fails to comply with the terms of Clause (j) of Rule 9 and the accused gets a copy of the report of the Public Analyst long after such report had been sent by the Public Analyst to the Food inspector. In the present case it will be seen that the Public Analyst analysed the sample which was sent to him on September 5, 1974. We do not know when the report was sent to the Food Inspector. It must have been sent sometime before the District Health Officer filed his complaint before the learned Magistrate. We have already seen that the complaint is dated 26-12-74. But the accused petitioner could not get any copy of the report of the Public Analyst till 10-11-75. Such long delay in the supply of the copy of the report of the Public Analyst in utter violation of the statutory rules, has, in my opinion, not only caused prejudice to the defence but affected also the prosecution, the continuation of which will be an abuse of the process of law.

6. In the case of Nazir Ahmed' v. King Emperor, reported in AIR 1936 PC 253(2) 37 Cri LJ 897 the Judicial Committee observed:

The rule which applies is a different and not less well-recognized rule, namely that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

7. The above observations were quoted with approval by the Supreme Court in the case of State of Uttar Pradesh v. Singhara Singh, reported in : [1964]4SCR485 . In that case a second class Magistrate not specially empowered by the State Government to record a statement or confession under Section 164, Cr.P.C. purported to record a confession of the accused under Section 164 of the Code. It was held that his oral evidence to prove the confession would be inadmissible. After approving the observations of the Judicial Committee in Nazir Ahmed's case ((1936) 37 Cri LJ 897) (PC) the Supreme Court went on to lay down:

The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory.

8. In the subsequent case of Ramchandra Keshav v. Govind Joti, reported in : [1975]3SCR839 the Supreme Court in construing the provisions of Bombay Tenancy and Agricultural Lands Rules 1956 observed that neglect of any of the statutory requisites would be fatal and non-verification of the surrender in the requisite manner would frustrate the very purpose of the statutory provision. Intention of the Legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in the provision and failure to comply with such mandatory provisions had vitiated the surrender and rendered it non est for the purpose of Section 5(3)(b) of Bombay Tenancy and Agricultural Lands Act.

9. In my view, the same principle will also apply in this case. Failure on the part of the Food Inspector to comply with the terms of Clause (j) of Rule 9 of the Prevention of Food Adulteration Rules 1955 will tantamount to the copy of the report of the public Analyst to be supplied to the accused petitioner to be non est. That being so, the Court is not entitled to look into the report of the Public Analyst which forms the very basis of the prosecution. If the report of the Public Analyst goes, as it must go, there is nothing on the record on the basis of which it can be prima facie said that the sample which was taken from a premises allegedly belonging to the accused petitioner was an adulterated one and accordingly the continuation of the proceeding would be an abuse of the process of the Court.

10. In the result, the Rule is made absolute. The order dated 3-12-75 passed by the learned Magistrate is set aside and the proceeding is quashed. Let the accused be discharged from his bond.


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