State of Gujarat & another Vs. Shaileshbhai Mansukhlal Shah & another

Appeal: Criminal Appeal No. 38 of 2001
With Criminal Appeal No. 39 of 2001
[From the Judgment & Order dated 07.10.1999 of the High Court of Gujarat at Ahmedabad in Special Criminal Application No. 803 of 1998]

Petitioner: State of Gujarat & another

Respondent: Shaileshbhai Mansukhlal Shah & another

Apeal: Criminal Appeal No. 38 of 2001
With Criminal Appeal No. 39 of 2001
[From the Judgment & Order dated 07.10.1999 of the High Court of Gujarat at Ahmedabad in Special Criminal Application No. 803 of 1998]

Judges: R.V. Raveendran & Lokeshwar Singh Panta, JJ.

Date of Judgment: May 30, 2007

Appearances :
Ms. Hemantika Wahi and Ms. Shivangi, Advocates for the Appellants

CRIMINAL LAWS
Prevention of Food Adulteration Act, 1954
Sections 7(i), (v) and 13(2) Prevention of Food Adulteration Rules, 1955, Rule 4(6) Food adulteration Initiation of criminal proceedings against respondents During the pendency respondent making an application for second analysis of the samples by the Central Food Laboratory Judicial Magistrate while allowing the said application directing the respondent to deposit the fee prescribed under the Rules – Respondents raising an objection contending that it was not required to deposit the fee for the second analysis Objection however rejected by the trial court as well as the revisional authority High Court however sustaining the objection of the respondents holding that there was no obligation on the accused to bear the cost or fee for the second analysis Validity. Allowing the appeal held that in view of the amended provisions of Section 13(2) and the requirements of Rule 4 (6) the applicant for second analysis of the samples is required to pay the prescribed fees. Decision of Kerala High Court in George Kutty v State of Kerala (1991) 1 PFAC 133 held erroneous. Decisions of MP High Court in Rajendra Kumar v. State of M.P. (1994) 2 PFAC 56 and Madras High Court in Mohd. Saif v. Local Health Authority, Melur Municipality (1996) 1 PFAC 20 held correct.

On a careful reading of section 13(2) as it exists now, and the old section 13(2), we are of the view that the old provision is of no assistance to interpret the new provision. If section 13(2) as it originally stood had been retained, by merely omitting the words on payment of prescribed fee, with a consequential change in Rule 4 by deleting clause (6) thereof, it might have been possible to take the view that no fee was payable by the applicant for second analysis. But that is not the position. Section 13(2) has undergone a complete change, by substitution in entirety, by section 13(2)(2A) to 2(E). Further, Rule 4(6) has continued in the statute book. Not only Rule 4(6) has continued, but it has been consciously amended in 1995 and again in 1998 increasing the fee. There is a clear provision in the Act for payment of fee, when section 4(2)(b) is read with Rule 4(6). Rule 4(6) cannot be ignored as obsolete, as has been done by the Kerala High Court, in the absence of clear irreconcilability with section 13(2) or any other provision of the Act. (Para 10)

When a statutory provision is substituted, the new provision has to be read and construed with reference to its wording and not with reference to the wording of the old provision. Old section 13(2) and new section 13(2) to (2F) are different. Old section 13(2) enabled the accused as also the complainant to make an application to the court for sending a second part of the sample to the Central Food Laboratory. Under the new section 13(2), a complainant does not have such right, but on the other hand, the right is given only to the person from whom the sample was taken as also his vendor, if any. Secondly, under the new section an obligation is cast on the Local (Health) Authority to inform the person from whom the sample has been taken (and his vendor, if any) that they can make an application to the court, within 10 days of receipt of the Public Analysts report, for getting a second part of the sample analysed by the Central Food Laboratory. Old section 13(2) did not contain such a provision. Lastly, the provision that the accused or the complainant may on payment of the prescribed fee, make an application in old section 13(2) meant that payment of the prescribed fee was a condition precedent for making an application to the court for second analysis. The omission of the words on payment of the prescribed fee in the new section 13(2), in context, only means that payment is no longer a condition precedent for making an application for second analysis. Under the new section 13(2), the applicant can make the payment, after the application is allowed by the court. The sample however will be sent by the court to the Central Food Laboratory only on deposit of the prescribed fee. The omission to refer to the fee in section 13(2) is obviously because it was provided in Rule 4(6) made in exercise of power conferred under section 4(2)(b). If the legislative intent was to exempt the applicant for second analysis from any payment, the section would have stated that such analysis was free. The decision of the Kerala High Court is clearly erroneous. The view of the High Courts of Madhya Pradesh and Madras that the applicant has to pay the fee for the second analysis, in view of Rule 4(6) providing for such fee and the absence of any provision exempting the applicant from paying the fee, is correct. (Para 11)

We, therefore, allow this appeal and set-aside the impugned judgement of the High Court and restore the order of the Revisional Court, affirming the order of the learned Magistrate directing the respondents to remit the fee for the second analysis under section 13(2) of the Act. (Para 12)

1. Mohd. Saif v. Local Health Authority, Melur Municipality [1996 (1) PFAC 20] (Para 4) (held Correct)

2. Rajendra Kumar v. State of M.P. [1994 (2) PFAC 56] (Para 4) (held Correct)

3. George Kutty v. State of Kerala [1991(1) PFAC 133] (Para 3) (erroneours)

RAVEENDRAN, J.
1. This appeal by special leave is by the State of Gujarat against the judgment dated 7.10.1999 passed by the Gujarat High Court in Special Criminal Application No. 803 of 1998.
2. The Food Inspector, Rajkot launched a prosecution against the respondents in respect of offences under Sections 7(i) and (v) of the Prevention of Food Adulteration Act, 1954 (Act for short) punishable under Section 16 of the said Act. During the pendency of the said proceedings, the first respondent made an application under Section 13(2) of the Act to get a second analysis of sample of the article of food kept with the Local (Health) Authority, by the Central Food Laboratory. The learned Judicial Magistrate allowed the said application on 8.5.1996 and directed the respondents to deposit the fee prescribed under Rule 4(6) of the Prevention of Food Adulteration Rules, 1955 (Rules for short) for issue of Certificate by the Central Food Laboratory. The respondents neither deposited the said amount nor challenged the said direction for deposit of the fee. Nearly one year later, the respondents raised an objection that having regard to the provisions of the Act and the Rules, they were not required to deposit any fee for the second analysis. The learned Additional Chief Judicial Magistrate, Gondal, rejected the said objection by order dated 18.9.1997. The Sessions Court, in revision, affirmed that order.
3. The revisional order was challenged by the respondents before the Gujarat High Court in Special Criminal Application No. 803 of 1998. The High Court, by its order dated 7.10.1999, allowed the application, set aside the orders of the learned Magistrate and Additional Sessions Judge and held that it is the obligation of the State or Local Authority to subject the sample to analysis under section 13(2) and there was no obligation on the accused to bear or pay the fee for the second analysis. It followed the decision of a learned Single Judge of the Kerala High Court in George Kutty v. State of Kerala1, and held that the right to have a second analysis was a privilege subject to payment of fee under the old section 13(2) of the Act, and that stood converted to an unconditional legal right of the accused under the new section 13(2), substituted by Act 34 of 1976. As a consequence, the learned Magistrate was directed to take appropriate steps in the matter, without requiring any payment by the accused.
4. The said order of the High Court is challenged by the State in this appeal. It is contended that the amendment to section 13(2) in the year 1976 did not affect the liability of the accused to pay the fee prescribed under Rule 4(6). It is submitted that the decision of the Kerala High Court in George Kutty (supra) relied on by the High Court, was not followed by the other High Courts. Reliance is placed on the decision of the Madhya Pradesh the High Court by order dated 9.5.2000 in Crl. Revision No. 21/2000.
2. Following the decision rendered by us today in Crl. Appeal No. 38/2001, this appeal is allowed and the order of the High Court and the learned Magistrate directing the complainant to pay the fee are set aside, and it is declared that the accused-respondent is liable to pay the fee for the second analysis under section 13(2) of the Act.
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