NETHARSH BASE COMPANY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (the Code), the applicants - original accused No.3, 4, 5, 6 and 7 have challenged order dated 09th September, 2004 passed by the learned Sessions Judge, Navsari, in Criminal Revision Application No.6 of 2001 whereby the learned Sessions Judge has allowed the application filed by the respondent and set aside the order dated 11th April, 2000 passed by the learned Judicial Magistrate First Class, Gandevi, in Criminal Case No.157 of 1999 whereby the applicants had been discharged.

(2.) The facts of the case stated briefly are that on 8th October, 1997, the respondent No.2 - Food Inspector took samples of sugar boiled confectionery namely, Kesar Pista Toffee (Looti) from M/s. Shree Ram Bakery and General Stores at Rahej, Taluka Gandevi, and the sample was sent to the laboratory for examination. On receipt of the report of the Public Analyst, Rajkot, dated 10th November, 1997, the Food Inspector submitted the report, documents and evidence alongwith a letter dated 20th November, 1998 to the local authority, Valsad and requested for grant of sanction to launch prosecution against the accused. In the report of the Public Analyst, Rajkot dated 10th November, 1997, it is mentioned that the test as regards Saffron (kesar) is found to be positive, that is, Saffron is present in the sample but the same is not shown on the label of the toffee and, therefore, the sample is misbranded as per the provisions of Rule 32(b) of the Prevention of Food Adulteration Rules, 1955 (the Rules) and Section 2(ix)(k) of the Prevention of Food Adulteration Act, 1954 (the Act). Upon obtaining sanction, the Food Inspector filed a complaint being Criminal Case No.157 of 1999 in the Court of the learned Judicial Magistrate First Class, Gandevi. Subsequently, another sample came to be sent to the Central Food Laboratory, Calcutta by the learned Judicial Magistrate First Class, Gandevi on 29th April, 1999. The Central Food Laboratory submitted its report dated 9th June, 1999 which indicated that the sample was adulterated as the presence of mineral oil was found in the sample, but the percentage or weight of mineral oil was not mentioned in the report neither was there any mention of presence of Saffron in the said report. The applicants No.4 and 5 therefore, approached this Court by way of Criminal Miscellaneous Application No.6593 of 1999 for quashing the complaint on the ground that there was a contradiction in report received from the Public Analyst, Rajkot and the Central Food Laboratory, Calcutta. Vide order dated 24th November, 1999, the petition was disposed of by giving liberty to the petitioners to approach the learned Judicial Magistrate First Class, Gandevi by filing a discharge application in Criminal Case No.157 of 1999 which came to be allowed vide order dated 11th April, 2000 whereby the learned Judicial Magistrate First Class discharged the applicants from the offences mentioned in the complaint stating that no prima facie case had been made out against the applicants. Being aggrieved, the State of Gujarat approached the Sessions Court, Navsari, by way of a criminal revision application being Criminal Revision Application No.6 of 2001. The learned Sessions Judge, vide order dated 9th September, 2004, quashed and set aside the order passed by the learned Judicial Magistrate First Class and remanded the matter to the Trial Court for framing charge under Rule 32(b) of the Rules. Being aggrieved, the applicants have moved the present revision application challenging the order dated 9th September, 2004 passed by the learned Sessions Judge.

(3.) Mr. C.L. Soni, learned Advocate appearing on behalf of Mr. Y.S. Lakhani, learned Advocate for the applicants invited attention to the report dated 10th November, 1997 of the Public Analyst to point out that the test for saffron was positive in the said report and that as per the opinion of the Public Analyst, in contravention of the provisions of Rule 32(b) of the Rules, the sample of Kesar Pista toffee was misbranded under Section 2(ix)(k) of the Act. Referring to the report of the Central Food Laboratory, Calcutta, it was pointed out that as per the said report, there was no mention of saffron in the entire report and that as per the opinion of the Central Food Laboratory, the sample of sugar boiled confectionery - Kesar Pista toffee was adulterated. It was pointed out that as per the said report, as per the provisions of Rule 49(17), mineral oil (food grade) for use in confectionery was required to be under Indian Standards Institution Certification Mark, but there was no license for the same. It was pointed out that in the said report mineral oil was shown to be present. However, the quantity or percentage thereof had not been mentioned. Referring to Rule 49(17) of the Rules, it was pointed out that the said Rule would be applicable only where mineral oil is sought to be sold for use in confectionery and as such, would not be applicable to the facts of the present case. Inviting attention to the order dated 11th April, 2000 made by the learned Judicial Magistrate, it was pointed out that the learned Judicial Magistrate has rightly observed that once there is a report of the Central Food Laboratory, the report of the Public Analyst cannot be looked into and that as per the report of the Central Food Laboratory, there was no misbranding. Inviting attention to the impugned order dated 9th September, 2004, it was pointed out that the learned Sessions Judge has accepted the position that when there was a conflict between the report of the Public Analyst and the Central Food Laboratory, the report of the Central Laboratory would prevail. However, the learned Judge has proceeded on a misconception that to the extent there was no contradiction in the two reports, the report of the Public Analyst could be accepted. Referring to the decision of the Supreme Court in the case of Calcutta Municipal Corporation v. Pawan Kumar Saraf and Another, (1999) 2 SCC 400, it was pointed out that the Court has held that Section 13(3) of the Act which says that the certificate of Director, Central Food Laboratory shall supersede the report, means that the report would stand annulled or obliterated. The word "supersede" in law means "obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal". Once the certificate of the Director of the Central Food Laboratory reaches the Court, the report of the Public Analyst stands displaced and what may remain is only a fossil of it. Thus, the legal impact of a certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst. It gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned. It was submitted that in light of the law laid down by the Apex Court in the said decision, once the certificate of the Director of the Central Food Laboratory reaches the Court, the report of the Public Analyst stands displaced and can no longer be looked into. It was accordingly urged that the learned Sessions Judge was not justified in placing reliance on the report of the Public Analyst once the certificate of the Central Food Laboratory had been received by the Court.