1 S.B.CRIMINAL MISC. PETITION No.470/2000 Vardhman Kala vs. State of Rajasthan 26.11.2008 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr.Vimal Kumar Jain, for petitioner. Mr. B.K. Sharma, PP for State. *** 1. This criminal misc. petition has been filed by the accused petitioner challenging the order dated 4th April, 2000 passed by the learned Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Sambhar Lake, whereby he rejected the legal objections raised by the petitioner in the criminal case (No.210/99) pending in that court for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954(hereinafter referred to as 'the Act' for short). 2. Brief facts of the case are that on 13th June, 1997, the Food Inspector had inspected the firm Navneet Iodized Salt, Sambhar Lake and purchased some salt as sample for the purpose of investigation in regard to adulteration. After completion of the procedure, in respect of taking sample, sealing, sending to the Analyst, etc. etc., the necessary sanction was granted by the Chief Medical Health Officer, Jaipur in favour of the Food Inspector for lodging of the criminal case. 3. Consequently, a complaint was filed in the court of Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, 2 Jaipur District, Jaipur by the Food Inspector on 15th July, 1998. The learned trial court took cognizance for the offence under Section 7(3) of the Food Adulteration Act and Rule 50(1) of the Prevention of Food Adulteration Rules. Thereafter, the petitioner was summoned by bailable warrant. 4. Subsequently, the case was transferred, on 26th June, 1999 to the Court of learned Civil Judge (Senior Division) and ACJM, Sambhar Lake. On 15th July, 1998 when Shri B.S. Hada, Food Inspector had filed the complaint, he also filed an application for exemption his presence in the ensuing proceedings. However, the learned trial court rejected the application for exempting the presence of the Food Inspector on that every day i.e. 15th July, 1998 (Annex.3). The complainant had not appeared before the learned trial court since the filing of the complaint, despite of the fact that this application for exemption was already rejected by the learned trial court. In such view, the petitioner had, on 3rd March, 2000, raised an objection that the complainant is not appearing before the learned trial court and the complaint deserves to be rejected on account of his non-appearance. The learned trial court heard the parties on the said same, and by his impugned order dated 4th April, 2000 rejected the same raised by the petitioner (Annex.4). 5. The learned counsel for the petitioner has primarily raised the objection, against the order impugned, on the ground that the complainant had not appeared since the filing of the 3 complaint and it was the learned public prosecutor who had been conducting the case on his behalf. Further he has submitted that under the provisions of Section 20 of the Act, it is only the person authorized who can institute a complaint and conduct the same. In support of his submission he has placed reliance on the judgment of Rampal vs. State of Rajasthan reported in 1999 Cr.L.R.(Raj.) 567. 6. On the other hand, the learned public prosecutor has submitted that the order impugned does not suffer from any infirmity and it is an order passed in accordance with relevant law. He has also submitted that so far as the provisions of Section 20 of the Act is concerned, it relates only to institution of the complaint by an authorized person. According to him after a complaint has been filed by a person authorized, then the case can be conducted on his behalf by the public prosecutor of that court. 7. I have given my thoughtful consideration to the rival submissions made by the parties. 8. The question about institution of a complaint by an authorized person and conducting of the trial in the offences under the Prevention of Food Adulteration Act had come before the High Court in number of cases. In the case of Dhaliya Vs. State of Rajasthan, S.B. Criminal Revisino No.159 of 1978 decided on 29th November, 1982 it had been held that the conduct of the trial in offence under the Prevention of Food 4 Adulteration Act should be done by the person authorized. In that case, a complaint was filed by the Municipal Board, Pali through a Food Inspector but the complaint was presented by the Assistant Public Prosecutor and the case was also conducted him. Therefore, an objection was raised that the Assistant Public Prosecutor was not competent to conduct the case, inasmuch as, it was not a State case and the Assistant Public Prosecutor was not a person who had the authority to conduct the same on behalf of the Municipal Board, Pali or on behalf of the Food Inspector, Municipal Area, Pali. The aforesaid objection was upheld by the High Court and it was held that Assistant Public Prosecutor had no authority to present the complaint on behalf of the Municipal Board, Pali or the Food Inspector, nor to conduct the case on their behalf and that the said infirmity could not be cured as it went to the root of the matter and the trial stood vitiated. 9. Similar view was taken by the High Court in the case of State of Rajasthan vs. Nagji Ram reported in 1983 Cr.L.R. (Raj.) 666. In the said case, it was held that the ordersheet of the court concerned shows that the case was conducted by the Assistant Public Prosecutor on behalf of the complainant. There was nothing on record to show that the Assistant Public Prosecutor had the authority to conduct the case on behalf of Shri .Prakash Chand, the Food Inspector. Therefore, it was held that as the trial was also conduced by unauthorized person and 5 the aforesaid infirmity goes to the root of the matter, the trial stands vitiated. 10. Again in the case of State vs. Jai Narayan reported in 1984 RCC 260, a similar question arose and it was held that the conducting of the case by Assistant Public Prosecutor was illegal and accordingly the conviction of the accused was set aside on the ground that the said trial was not in accordance to law. 11. In the case of Dal Chand vs. The State of Rajasthan reported in 1984 RCC 310, the High Court had reiterated the aforesaid view and held that the prosecution of the complaint by the Assistant Public Prosecutor is invalid and on this ground alone, the conviction was set aside. 12. Another Coordinate bench of the High Court had held a similar view in the case of Amolak Chand vs. State decided on 9th January, 1986. In that case, the proceedings were also conducted by the learned A.P.P. in the Court of C.J.M. Accepting the objections raised, the learned court acquitted the accused of all the charges on this ground alone. 13. In the last, the High Court in the case of Rampal vs. State of Rajasthan reported in 1999 Cr.L.R. (Raj.) 567 had followed the aforesaid views taken by its coordinate benches. In that case it was noted that the prosecution was conducted by the Additional Public Prosecutor and it was so revealed from the record of the case. It was also observed that no authorization was given to the Additional Public Prosecutor, Nagar Parishad, for 6 conducting the case. Therefore, the Court held that there was non-compliance of Section 20 of the Act and as the case was conducted by unauthorized person, the conviction awarded by the learned courts below was not sustainable in law. 14. For the aforesaid reasons I am of the considered view that the legal objections raised by the petitioner before the trial court are sustainable in law. The learned court below had erred in rejecting the said objections raised by the accused petitioner and in passing the impugned order dated 4th April, 2000. 15. Consequently, this misc. petition is allowed and the order dated 4th April, 2000 passed by the learned Civil Judge (S.D.) and Additional Chief Judicial Magistrate, Sambhar Lake is hereby quashed and set aside. Hence, the application filed by the accused petitioner before the learned trial court deserves to be allowed. (Raghuvendra S. Rathore)J. Sanjay Item No.