State Of Madhya Pradesh vs Premnarayan

Heard.

Applicant/State has filed the present application under section 378(3) of the Cr.P.C seeking leave to file appeal against the judgment dated 04/07/2019 passed by learned Chief Judicial Magistrate, Neemuch in Criminal Case No. 890/2013, whereby the respondent has been acquitted under sections 23, 26(1), 26(2)(i)ii)(v), 27(3)(c)(e) and 31(2) of the Food Safety Rules, 2011 alongwith Sections 2,3, 4 read with sections 51, 52(1), 58 and 59 of the Food Safety and Standards Act, 2006.

The application is barred by 13 days, hence, IA No. 1964/2020 , an application under Section 5 of the Limitation Act is filed, which is supported with the affidavit of Food Inspector-Sanjeev Mishra. According to him, note-sheet was put up for grant of permission on 13/07/2013, which was sent to the Law Department on 02/08/2019 and after getting approval from the Law Department, on 28/09/2019 the present application was filed, therefore, the delay of 13 days has been caused.

Looking to the reasons assigned in the application, which is also supported with the affidavit of Food Inspector, sufficient ground is made out to condone the delay. Accordingly, IA No. 1964/2020 is allowed and delay of 13 days in filing the present application is hereby condoned.

As per the prosecution story, on 02/04/2012, Raju Solanki was posted as Food Safety Officer at Neemuch and on 02/04/2012 near about 4:10 p.m., he visited the grocery shop situated at Moolchandra Marg, Neemuch. He gave his introduction to Prem Narayan, who is proprietor to the M/s. Laxminarayan Kirana Store. In presence of two witnesses namely Mukesh and Ram Singh, he conducted inspection to the food items kept in the shop for the sale and he found 4 packets of XXX power gutkha weighing 108 gms. each and he purchased the four packets in Rs.200/- and obtained the receipt. Alongwith the memorandum form VI, he sent the sealed pack sample of the said Gutkha by speed post on 03/04/2012 to the Food Analyst Bhopal. The food analyst submitted report on 19/04/2012 (Ex. P/20) and according to which the sample was found substandard, unsafe, prohibited and misbranded. The said report was sent to the respondent vide letter dated 13/04/2012 (Ex. P/19) with a liberty to file an appeal within a period of 30 days. A notice dated 02/06/2012 was also sent to the M/s. Adarsh Enterprises (Ex. P/21). Prescribed Authority, vide letter dated 04/06/2012 has directed the Food Safety Officer to sent a letter to the Commissioner for obtaining permission for prosecution. The Food Safety Officer sent letter dated 05/07/2012 (Ex. P/26) alongwith all necessary documents. Vide letter dated 09/08/2012 (Ex. P/27), the Prescribed Authority has sent a letter to the Commissioner, Bhopal for obtaining permission for prosecution. Vide letter dated 10/01/2013, the Food Safety Officer received a order dated 25/04/2013 passed by the Commissioner, Bhopal (Ex. P/28) for granting permission of prosecution. Thereafter,, the Food Safety officer filed a complaint before the Court of Chief Judicial Magistrate, Neemuch on 15/06/2013, which was registered as Criminal Case No. 890/2013. The summons were sent to the respondent and other co-accused person. Vide order dated 24/10/2018, the charges were framed against the respondent for commission of offence punishable under Sections 23, 26(1), 26(2)(i)ii)(v), 27(3)(c)(e) and 31(2) of the Food Safety Rules, 2011 alongwith Sections 2,3, 4 read with sections 51, 52(1), 58 and 59 of the Food Safety and Standards Act, 2006. The prosecution examined Raju Solanki as PW/1, Nitesh as PW/2 and Dheerendra Singh Yadav as PW/3. The respondent denied the charges and pleaded that he has falsely been implicated in the present crime. After appreciating the evidence came on record, vide judgment dated 04/07/2019, learned Magistrate has acquitted the respondent for the alleged offence on the ground that there was delay in filing the complaint as well as the manufacturer of XXX power Gutkha has not been prosecuted. Being aggrieved with the aforesaid judgment of acquittal, the applicant/State has preferred the present application for grant of leave to appeal before this Court.

Section 77 of the Food Safety and Standards Act, 2006 provides the time limit for prosecutions and according to which no court shall take cognizance of an offence under this Act after the expiry of the period of one year from the date of commission of an offence but as per the proviso, the Commissioner of Food Safety may, for reasons to be recorded in writing, approve the prosecution within an extended period of upto three years.

In the present case, vide annexure (P/28), the Commission of Food Safety granted permission of prosecution on 25/04/2013; whereas the sample was taken on 02/04/2012 i.e. the permission was granted after one year and thereafter, the complaint was filed on 15/06/2013. As per Section 77 of the Food Safety and Standards Act, 2006, no court can take cognizance of an offence after expiry of one year but the Commissioner of Food Safety may, for the reasons to be recorded in writing, approve prosecution within an extended period of up to three years. However, as per Ex. (P/19), only permission was granted for prosecution under Section 77 of the FSS Act, 2006 but nothing is mentioned about the extension of period of beyond one year. The Commissioner is required to assigned a reason for prosecution from one year up to three years. In cross-examination PW/1 has admitted that he received the Ex. (P/29) from the office of the Prescribed Authority alongwith letter dated 10/05/2013 and except Ex.(P/29), there is no letter for extending the period of prosecution and he has further admitted that he has filed the prosecution beyond a period of one year. The court itself is not competent to extend the period of prosecution beyond one year and this power lies on the Commissioner of Food Safety. It is admitted position that after one year the period for prosecution has not been extended as per proviso Section 77 of the Food Safety and Standards Act, 2006. Hence, the trial Court has not committed any error in acquitting the respondent for the aforesaid offence. Accordingly, no case for grant of leave to file an appeal against the impugned judgment of acquittal is made out, therefore, the present application filed under Section 378(3) of the Cr.P.C. is hereby dismissed being devoid of any merits.