45#$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P.292/2009 & Crl. M.A. No. 5513/2011 RAJ MANCHANDA Petitioner Through: Mi*. R.N. Mittal,Sr. Advocatewith Mr. Ayush Gupta, Advocate versus STATE Respondents Through: Mr. MukeshGupta,APP for the State. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA ORDER o/o 26.08.2011 1. The presentpetitionis directedagainstthejudgmentpassedby the Addl. Sessions Judge dated 20^'' February,2009 dismissingthe appeal against the judgmentdated 13^'' July, 1998 passedby the learnedMetropolitanMagistrate in PFA Case No. 105/1993 convicting and sentencingthe Petitionerfor offencespunishableunder Section7/16 ofPreventionofFood Adulteration Act(in short 'the Act') and directinghim to undergoRigorousImprisonment for 6 months and a fme of Rs.2000/-. 2. Learned counsel for the Petitioner contends that there was a label declarationin the said restaurantfrom where the allegedsamplewas statedto have beentakenbut they were not able to tellthe Courtthatwhatwas the label declaration. Furtherthe Petitionerhad sincethe very begimiingofthe case has Crl.Rev.P.No.292/2009 Page1of5 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified takenthe standthatthe FoodInspectorin haste or otherwisehas misinterpreted the refined the mustard oil as the refined groundnut oil. The Petitioner had never sold or offered to sell the stuff as refined groundnut oil and Food Inspectortook the sample from the containerwithoutknowingwithoutasking what was the substance and on his own assumptionsreferred the substanceas refined groundnut oil whereas in the restaurantwhat was being used as a cookingmediumwas refinedmustardoil and not groundnutoil. The billofthe mustardoil so purchasedbythe restaurantwas also produced. 3. Learned counsel for the Petitioner further contends due to compelling circumstanceshe had to leave the country and visit his daughterresiding in America somewhere in the year 2005-2006. The circumstances of the Petitionerand his daughterwere:miserablein the other countryand they were not in a financialpositionto come back to the country. Inthe meanwhile,the counselfor the Petitionerdid not attendthe proceedingsand the decisionwas passedin the said case againstthe Petitioner.The Petitionercame back in the year 2009 and learntaboutthe presentjudgmentand orderofthe learnedTrial Court. Thereafter,the Petitionerpersonallypersuedthe matter. It is prayed that the Petitionerwould sufferinjusticemerelybecausehis counseldefaulted. Therefore,it is prayed that the unpugnedorder passed by the learnedAddl. SessionsJudge be set aside. Crl.Rev.P.No.292/2009 2of5 4. I have heard learned counselfor the Petitionerand perused the record. Briefly, the case of the Complainant is that on 8^^ February, 1993 Food InspectorSunitiKumar Guptapurchasedasampleofrefmedgroundnutoil for analysisfrom Raj Manchandaat M/s MaharajaRestaurant,13 JanpathBhawan, Janpath,New Delhi who was carryingthe businessofthe said restaurantand the refinedgroundnutoil was found storedin kitchenfor use ofpreparationof food articlesfor sale. The samplewas takenfrom an open containerbearingno labledeclaration. Afterbeingproperlyhomogenized. The samplewas divided into three equal parts and each part was put in a separateclean and dry bottle and each ofit was packedseparately,fastenedand sealedas per the provisions ofPFA Act and Rules. Vendor'ssignatureswere obtainedon the LHA slip and the wrapper of the sample bottles. It is alleged that before starting the proceedings,efforts were made to join the public witnesses but none came forward. All the documentswere got signed from the Respondentand other witnesses. The sample was taken under the supervision of local health authorities. One ofthe three sampleswas got depositedwiththe publicanalyst with seals intact. The other two counter-partsof the sample were deposited with the local healthauthority. On analysisofthe sample,the PublicAnalyst found that the sample does not conform to the standards. The Petitioner exercisedhis rightunderSection13(2)ofthe PFA Act and requestedto get the Crl.Rev.P.No.292/2009 3of5 secondcounterpartsampleto be analysedfrom the DirectorCFL. Thereafter, learnedMetropolitanMagistrateafter deducmgthe evidenceplacedon record convictedthe Petitioner. This order of the learnedMetropolitanMagistratewas appealed againstwhich was dismissedby the learnedAddl. Sessions Judge. Thesameis impugnedin the presentpetition. 5. At the outset,the presentcase is ofmisbrandingwhere the Food Inspector has taken mustardoil to be groundnutoil. The Petitionerbefore the learned MetropolitanMagistratein his statementunder Section313 Cr. P.C. pleaded innocenceclaimingthat the sample was not of groundnutoil but of refined mustardoil. He further statedthat he was sittingat the cash counterand the samplingwas done in his absenceand he never disclosedthat the samplewas of refined groundnut oil. Learned MetropolitanMagistrate convicted the Appellantunder Section 16(1) read with Section7 of the Act. Againstthis orderthe Appellantpreferredthe appealin the year 1998 and had to leavethe countryin the year 2005 due to personalreasons. Thereafterhis counseldid not enter appearancebefore the learnedAppellateCourt and the said appeal was dismissedby theAppellateCourtinhis absence. 6. Hon'bleSupremeCourtin Rafiq &Anr vs. Munshilal&Anr., AIR 1981 S.C. 1400 held that where an appealfiled by the Appellantwas disposedofin absence of his counsel, the party should not suffer for the misdemeanoror Crl.Rev.P.No.292/2009 ^of5 inactionfor his counsel. In the presentcase, after the Petitioneileft to attend his daughterin Americathe counseldid not appearbeforethe learnedAppellate Court and the said appeal was dismissed. Learned counselfor the Petitioner assures that the Petitionerwill be present before the trial court as and when directed. 7. Thus, in view of the facts of the case and law laid by the Hon'ble Supreme Court, it would be in the interest of justice that an oppoilunityis grantedto the Petitionerto pleadhis innocence. Therefore,the Appellateorder passedby the learnedAddl. SessionsJudge on 20^'' February,2009 is set aside and the matter is remanded back to the learned Appellate Court. 8. Parties are directedto appear beforethe Judge-in-charge,PatialaHouse on 5"" October,2011. Petition is disposed of 'MUKTA GUPTA, J. AUGUST 26, 2011 'dk' Crl.Rev.P.No.292/2009 Page 5 of5