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Judgment
G. Narendra, J.
The above criminal petition is filed invoking the provisions of Section 482 of Cr.P.C. praying to quash the entire proceedings initiated against the petitioner and registered as C.C. No. 933/2012 under the provisions of Section 7(1) read with Section 16 of the Prevention of Food and Adulteration Act, 1954 (hereinafter referred to as, ''the Act'', for brevity) and pending on the file of the Court of Principal Civil Judge and J.M.F.C, Hospet.
The brief facts of the case are that, the petitioner is a Co-operative Society carrying on business in production and marketing of quality milk and diary products in the Co-operative sector. It is further submitted that it is a member of the Gujarat Co-operative Milk Marketing Federation Union, which is collectively marketing its products under the brand name of AMUL''.
It is the case of petitioner that the respondent - Food Inspector filed a private complaint No. 107/2007 before the Court of Additional Civil Judge (Jr.Dn.) and J.M.F.C., Hospet, arraying one Ashok Jam as the accused No. 1 and the present petitioner as the accused No. 2 for alleged offences punishable under Section 7(1) read with Section 16 of the Act. Thereafter, on transfer, the said private complaint came to be registered as C.C. No. 1051/2008 against the petitioner. The Head Office of the petitioner is situated in Gujarat and its representative is placed in Sattur, Dharwad. The complainant is the District and Family Welfare Officer, Bellary.
The allegations against the accused are that accused No. 1 was running a General Stores Business in the name and style of ''Rajendra Stores'' in Hospet and the complainant visited the store on 27.02.2007, and found the accused No. 1 tending to carry the business. The complainant introduced himself as a Food Inspector and purchased 15 packets of Sagar milk powder of 50 grams volume being marketed under the brand name of ''Sagar'' and obtained bills for evidencing the purchase and the complainant also intimated that they were being taken for the purpose of testing them as per the Act. The complainant further states that he served Form No. 6 upon the said Ashok Jam and obtained the acknowledgement on the duplicate. It is further stated that the complainant conducted the spot mahazar in compliance with the provisions of Section 11 of the Act and completed the procedures as stipulated under Section 11 of the Act. He obtained the signature of the accused No. 1 on the sample packet and sent one through the local agent to the Public Analyst under intimation to the Local Health Authority and the remaining two packets to the Public Analyst, Local Health Authority on 28.02.2007.
After analysis the sample was found to be an adulterated one, and hence, the complainant has lodged the prosecution under Section 7(1) of the Act praying that the accused be punished in accordance with law. Along with the complaint the complainant has produced the receipt issued by accused No. 1 and the analysis report and also the intimation to accused No. 2 -petitioner herein. By the said communication, the accused No. 2 -petitioner herein has been notified as follows--
"With reference to above sub I have this day taken the sample of Milk Powder (Sagar 50 gr Packet) from the premises Rajendra Gen stores Hospet under prevention of Food Adulteration Act, 1954.
The above mention milk Powder Packet labeled as mfr addressed Banaskanta Dist. Co-operative Milk Product Union Ltd., Palanpur. Hence, I am herewith sent Form - 6 as required in Rule - 12 of PFA by Reg Post.
Please intimate P.F.A. License Holder of your product for below address."
Along with the letter addressed to the petitioner, the complainant has also enclosed Form No. VI, which is dated 27.02.2007. Thus, the fact can be safely deduced that the petitioner was aware of the action initiated by the respondent with regard to its products (milk powder) that were being sold by accused No. 1. It is clearly mentioned in the said letter that the samples of the food have been taken for the purpose of having them analysed by the Public Analyst to detect adulteration, if any. Thus, the petitioner was put on notice as way back as on 27.02.2007 itself. The Public Analyst has submitted the report in Form III, wherein it is stated that the sample which is a coffee and tea whitener was analysed between 12.03.2007 and 22.03.2007 and on conduct of Bacteriological Examination of the samples found that the product sent for Analysis was adulterated. The report is signed and issued by the Public Analyst on 24.03.2007.
Thereafter the present pending complaint was lodged before the jurisdictional Court on 05.11.2007, which was initially registered as P.C. No. 107/2007 and later on cognizance being taken was renumbered as C.C. No. 1051/2008, and currently renumbered as C.C. No. 932/2012.
The jurisdictional Court by its order dated 20.03.2008 was pleased to take cognizance of offences and directed issue of summons as neither of the accused were present. A warrant came to be issued way back on 28.06.2008. On issuance of warrant the accused No. 2 i.e., the petitioner herein, made an application praying for preponement of the hearings in order to get their warrant recalled and also to register it''s appearance before the court. While doing so the petitioner - accused No. 2 preferred an application under Section 12(2) read with Section 13(2) of the Act on 17.07.2008 praying that the second sample kept with the Local Health Authority be analysed by the Central Food Laboratory.
Thereafter this accused has continuously remained absent and has not participated in the proceedings. In fact, the trial Court by its order dated 30.01.2012 has succinctly observed that the warrant issued against accused No. 2 has been pending for long time and has not been executed and neither has the accused appeared before the Court. It is further observed that accused No. 1 has been regularly appearing before the Court, but due to non-availability of accused No. 2, the trial has been delayed even against accused No. 1, who is present before the Court and thereafter it has proceeded to pass an order splitting up the case as against accused No. 2 and has further directed the Food Inspector to file a split up charge sheet against accused No. 2 and office was directed to register a separate Criminal Case number.. Thereafter by order dated 14.08.2012 the case came to be transferred to the Court of Prl. Civil Judge and J.M.F.C, Hospet, and both parties were directed to appear before the said Court. Even after the case came to be split up, the accused No. 2 -petitioner herein did not care to appear before the jurisdictional Court. Inspite of issue and reissue of several NBWs, the petitioner has not made an effort to appear before the jurisdictional Court. In fact proceeding further the court below by order dated 17.08.2013 has been pleased to order issuance of proclamation against the said accused. Moving ahead the court by its order dated 05.07.2014 directed issuance of notice to the surety. Even thereafter the petitioner did not choose to appear before the Court. The jurisdictional Court constrained by the continued absence of the accused by its order dated 24.12.2013 ordered issuance of proclamation under Section 82 of Cr.P.C. and also for attachment under Section 83 of Cr.P.C. and posted the same for compliance by 28.03.2015. Thus, perusal of the order sheet clearly demonstrates the attitude of the petitioner towards the courts of law and it is one of utter disdain and one would not be understating if it is alleged that the petitioner has been evading the process of the court.
The petitioner has produced a copy of the application filed by it under Section 12(2) read with Section 13(2) of the Act praying to the Court that the Public Analyst of Local Food Authority be directed to send the remaining part of the food sample to the Central Food Laboratory, Pune. Admittedly, the said application is way back on 17.07.2008.
Heard the learned counsel for the petitioner and the learned AG.A.
It is strenuously contended by the petitioner that the court below has erroneously ordered issuance of non-bailable warrant against the petitioner. The petitioner''s counsel would further contend that the court by not considering the application for the last seven years has caused serious prejudice and inaction has vitiated the proceedings, and hence, the same is liable to be quashed. He would further contend that as per the provisions of Section 13(2) of the Act, the sample ought to have been sent within 10 days of the date of making of the application.
The petitioner would contend that his application is well within time as specified under Sub-section (2) of Section 13 of the Act. The counsel would argue that the very fact that the petitioner made an advancement application would demonstrate the bonafides of the petitioner. He would further submit that the petitioner has voluntarily appeared before the jurisdictional court. He would further contend that in view of enormous delay, the prosecution against the petitioner has become stale. The petitioner has chosen not to disclose as to on which date the report of the Public Analyst was served on him. From the records made available to the court it is seen that the petitioner has been put on notice about the seizure, of the food products from the shop of the accused No. 1, who is it''s dealer, as way back as on 27.02.2007 itself.
Per contra, the learned A.G.A. would submit that the above petition is vitiated by delay and laches. He would take this Court through the order sheet produced along with the petition and perusal of the order sheet clearly demonstrates that there is absolutely no bonafides on the part of the petitioner and the petition itself is lacking in bonafides.
The learned A.G.A. would submit that the petitioner is guilty of suppression and misrepresentation of facts before this Court, and hence, the petition is liable to be dismissed with exemplary costs. The learned A.G.A. would point out that the very application itself is woefully belated and infructuous.
The learned A.G.A. would take this Court through the provisions of Section 13(2) of the Act, wherein it is clearly stipulated that either of the party i.e., the complainant or the accused can make an application within 10 days of the receipt of the report by the Public Analyst either confirming or negativing adulteration of the product. On perusal of the record it is apparent that the report is sent on 24.03.2007 and the application ought to have been made within ten days thereof or atleast within ten days from the date of receipt of the report. Undoubtedly, the application has been made belatedly on 17.07.2008 only i.e., after more than a year, and hence, he would submit that the application itself is misconceived and not maintainable.
In the background of the above submissions, the issue that falls for consideration before this Court is -
"Whether the application under Section 13(2) of the Act filed on 17.07.2008 is maintainable?"
Reading of the provisions of Sub-section (2) of Section 13 of the Act clearly states that an application can be made by either of the parties to the Magistrate praying that the remaining sample be forwarded by the Public Analyst to the Central Food Laboratory by the party, who is dis-satisfied with the finding of the Public Analyst. It further stipulates that such an application ought to be made within ten days from the date of receipt of copy of the report. The report is dated 24.03.2007 and is alleged to have been sent immediately and it can also safely be presumed to have been sent immediately. In the facts and circumstances of the case and after a perusal of the pleadings it can be safely presumed by this Court that the report has been served upon the accused immediately thereafter. A perusal of the pleadings does not disclose on what date the report was received or served upon the accused/petitioner herein. Even in the application before the jurisdictional Court there is no plea regarding this fact, and hence, on the prevailing facts this Court is constrained to conclude that the said application filed on 17.07.2008 is highly belated and misconceived and on this ground alone the above petition is liable to be rejected.
That apart, it is highly necessary to notice the conduct of the petitioner accused. The petitioner accused having avoided appearance initially thereafter has devised this application as a strategy to escape from the clutches of law. This is demonstrated by the conduct of the petitioner prior to 17.07.2008 and post 17.07.2008. The accused has appeared before the Court on 17.07.2008 and filed the application and thereafter has chosen to abstain/absent himself from the proceedings, leading to such an impasse wherein the trial Court has been constrained to direct the splitting up of the charge sheet and filing of separate case. Thus, after 17.07.2008 the petitioner/accused No. 2 has not chosen to honour the court below with his presence. Petitioner has failed to realise that appearance before the Court is a duty cast upon every citizen who is called upon to do so and it is not an option that he can exercise at his choice. The sheer antipathy and contemptuous attitude demonstrated by the petitioner towards the jurisdictional Court by itself should disentitle the petitioner for any relief at the hands of this Court and this Court holds accordingly.
As rightly pointed out by the learned A.G.A. even the present petition is woefully belated and is vitiated by the delay and laches. The extraordinary delay besides, the contemptuous attitude of the petitioner has not been explained nor is the petitioner apologetic about the same.
On the contrary, he would turn around to point fingers at the court itself and the complainant. A person who himself is guilty of serious delay and laches cannot be permitted to resort to technicalities to offset the due process of law. It is apparent that the present petition is filed in the aggravated circumstances, that is the order of attachment dated 24.12.2013 which the petitioner has brought upon itself. Petitioner has shown scant respect and regard for this venerable institution and towards the due process of law and accordingly is not entitled to and this Court declines to exercise its inherent powers. The petitioner''s counsel has relied upon the judgment of the Hon''ble Apex Court rendered in Crl.A. No. 1401/2009. While the Hon''ble Apex Court was pleased to quash the proceedings in the light of the fact that the second sample was made available to the applicant very belatedly i.e., nearly after 15 months though the sample was collected on 08.04.1988 and the application for examination of the second sample under the provision of Section 13(2) of the Act filed on 04.05.1988. But the prosecution/complainant therein had made available the sample to the appellant only on 17.07.1989 i.e., after the lapse of nearly 15 months from the date of request that is not the case of the petitioner herein. In fact as stated earlier, the petition is bald and vague with regard to these aspects. In fact even after persistent prodding the petitioner counsel did not opt to furnish the details.
Apart from relying on the provision of Section 13(2) of the Act and apart from complaining against the court below for not having disposed of the application, the petition does not disclose any fact which merit consideration. As is seen in the case before the Hon''ble Apex Court the party had acted with alacrity and within the stipulated time, and hence, the Hon''ble Apex Court has correctly ruled that the continued prosecution has been rendered stale in view of the fact that the very sample which was made available to the applicant after 15 months had by then naturally deteriorated and in those circumstances the Hon''ble Apex Court was pleased to quash the complaint. In the instant case, the delay has been caused wholly on account of the absence of the petitioner/accused before the court below. The petitioner himself not having chosen to prosecute the case diligently cannot be shown any sympathy.
This Court is constrained to conclude that the present petition is motivated and is triggered by the order directing issuance of proclamation and attachment. The above petition has been necessitated by the order of attachment passed by the trial Court and this is an indirect attempt to stall the attachment proceedings. Accordingly, the above petition deserves to be dismissed with cost. The petition is accordingly dismissed with costs quantified at Rs. 25,000/-. The above petition stands dismissed as devoid of merits. The costs shall be paid within a week and in favour of the Advocate Association Library Welfare Fund, High Court of Karnataka, Dharwad Bench, Dharwad.