ASHOK KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The salient point in this case pertains to the amended Section 13(2) of the Preventon of Food Adulteration Act. 1954 (hereinafter referred to as the Act). The question posed is whether the amended provisions of the said sub-section of the Act amount to testimonial compulsion and thus violate the constitutional guarantee provided in Article 20(3) of the Constitution of India.

(2.) The petitioner, Ashok Kumar, is carrying on business of selling and storing Deshi Ghee at his shop No. 633, Khari Baoli, Delhi. He is a partner of M/s. Amar Dass Chaman Lal. It is alleged that a sample of Amar Special Sudh Ghee was taken by Food Inspector Shri S. C. Bhalla on 24th January, 1977 from the petitioner. The said sample was sent to the Public Analyst who by his report dated 29th January. 1977 found the said Sudh Ghee to be adulterated. On or about 4th April, 1978 Ashok Kumar received a memorandum dated 1st' April, 1978 from the Local Food Health Authority, Delhi Administration enclosing therein a report of the Public Analyst dated 29th January, 1977. By the said memorandum, the petitioner was informed, that if he so desired, he could get the sample analysed by the Central Food Laboratory and make an application for this purpose in the court of Shri B. N. Chaturvvdi, Metropolitan Magistrate/Judicial Magistrate 1st Class. Delhi within a period of ten days from the receipt of the letter. He was also informed that a prosecution had been instituted against him in the same court. He was served with summons dated 31st March, 197.S, thereafter, intimating him that a complaint had been filed against him and two others under Section 7 read with Section 16 of the Act. Ashok Kumar made an application on 14th April, 1978 requesting that the sample be analysed by the Central Food Laboratory. However, on or about 29th April, 1978 Ashok Kumar moved another application before the Metropolitan Magistrate in which he, inter alia, averred as follows: "4. That the right to get the sample analysed from the Central Food Laboratory u/s 13(2) P.F.A. Act would thus according to law, be available to a 'person from whom the sample of article of food was takcn by the food Inspector. Thus the moment. an application u/s 13(2) P.F.A. Act is filed by the applicant by the fiction of law he becomes a ''person from whom the sample of the article of food was taken. This fact otherwise that is the applicant is the person from whom the sample of the article of Food was taken is lu he proved by the prosecution by a cogent, reliable and substantive evidence. The legal compulsion created by the period of limitation at the very start of the inquiry trial, when the prosecution is yet to lead evidence to establish a prima facie case, against the applicant that he is the person from whom the sample of the article of food was taken, for the purposes of framing a charge. Thus at the very opening of the case of prosecution the exercise of the right u/s 13(2) P.F.A. Act, creates a legal compulsion upon She applicant to lead evidence by way of an application u/s. 13(2) P.F.A. Act, admitting therein that he is the person from whom the article of food was taken and thus estopping him from challenging during the trial that he is not the person from whom the sample of article of. food was taken. If thus, compels the applicant to become a witness against himself and such like compulsion is specifically barred under Article 20(3) Constitution of India. 5. That thus for the purposes of limitation, this application be deemed to have been filed, within the prescribed period of limitation but the further exercise of sending the sample to the Central Food Laboratory. He dispensed with till the time the prosecution establishes with the help of reliable and substantive evidence that the applicant is the person from whom the sample of the article of food was taken. This right may be kept alive till the time when the applicant at the appropriate stage prays to this Hon'ble Court for getting the sample analysed from Central Food Laboratory."

(3.) This, in fact, is the grievance of the petitioner. In the writ. petition which he has filed in this Court, he has prayed, inter alia that Section 13(2) and Section 13(5) of the Act as amended by Amendment Act, 34 of 1976 be struck down as being ultra-vires the Constitution as it infringes the fundamental rights of the petitioner contained in Articles 14, 19(l)(g), 20(3) and 21 of the Constitution of India.