STATE OF HARYANA Vs. TEK CHAND

JUDGEMENT

(1.) STATE of Haryana has filed this criminal revision against the trial Court's order whereby the application filed by the respondent accused under section 468 Cr.P.C. was allowed and application filed by Shri D.N. Gupta, GFI, for amendment of the complaint which was earlier filed on the basis of the report of the Public Analyst on 6.9.1989, was dismissed.

(2.) BRIEF facts of the case are that sample of Kali Mirch was taken from the shop of the accused respondent by the complainant on 25.2.1989. Sample was sent to Public Analyst for analysis. He found that it contained 40 iron pieces the weight of which was 540 PPM. When the complaint was presented in the court and the accused was summoned, exercising his right under Section 13(2) of the Prevention of Food Adulteration Act, 1954 (for short the Act), he applied that second sample be sent to Director CFL, Mysore for the purposes of analysis. Second sample was sent for analysis to Director CFL Mysore who vide his report dated 13.9.1989 opined that the sample does not contain iron pieces but it does not conform to the standard laid down for black pepper (Kali Mirch) whole under the provisions of PFA Act, 1954 and the rules thereof, in that it is "misbranded" and contrary to the provisions of section (ix)(c) of PFA Act 1954 and Rules thereof as the sample is white pepper. This report of the Director was altogether different from the report of the Public Analyst as the presence of white pepper in the sample of Kali Mirch was not a ground taken in the complaint for prosecution of the accused. Thus in view of the report of the Director CFL Mysore, the learned Magistrate vide his order dated 7.4.1994 held that the complaint has become infructuous and there is no provision for amendment in the complaint; the complaint was dismissed and the accused was discharged. Thereafter, on 23.4.1994, second complaint was filed by Himat Singh, Food Inspector on the basis of the report of the CFL. With regard to this second complaint, the accused filed an application under section 468 Cr.P.C. alleging that this second complaint is beyond the period of limitation; therefore, no cognizance can be taken of this second complaint. Shri D.N. Gupta, GFI filed an amended application on 7.1.1993 which was ignored by the Court and first complaint was dismissed but subsequently this second complaint was filed on 23.4.1997.

(3.) LEARNED AAG argued that the report of the Director, CFL which is reproduced above, shows that the sample was misbranded; therefore, this was not the same offence for which first complaint was filed on the basis of the report of the Public Analyst. Hence, complainant was competent to file second complaint on the basis of the report of the Director CFL. Thus according to him, the learned Magistrate fell into an error in holding that second complaint is not maintainable as with regard to the first complaint the accused was discharged which amounts to acquittal. He contends that second complaint is based on different report and therefore it cannot be said that it is the same offence for which the first complaint was lodged.