CRL.REV.P./292/2009 of RAJ MANCHANDA Vs STATE GOVT. OF N.C.T.

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

ORDERo/o26.08.2011

1.The presentpetitionis directedagainstthejudgmentpassedby the Addl.Sessions Judge dated 20^'' February,2009 dismissingthe appeal against thejudgmentdated 13^'' July, 1998 passedby the learnedMetropolitanMagistratein PFA Case No. 105/1993 convicting andsentencingthe Petitionerforoffencespunishableunder Section7/16 ofPreventionofFood AdulterationAct(in short 'the Act') and directinghim to undergoRigorousImprisonmentfor 6 months and fme of Rs.2000/-.

2.Learned counsel for the Petitioner contends that there was labeldeclarationin the said restaurantfrom where the allegedsamplewas statedtohave beentakenbut they were not able to tellthe Courtthatwhatwas the labeldeclaration. Furtherthe Petitionerhad sincetheofthe case has very begimiingCrl.Rev.P.No.292/2009Page1of5

Signature Not Verified

takenthe standthatthe FoodInspectorin haste or otherwisehas misinterpretedthe refined the mustard oil as the refined groundnut oil. The Petitioner hadnever sold or offered to sell the stuff as refined groundnut oil and FoodInspectortook the sample from the containerwithoutknowingwithoutaskingwhat was the substance and on his own assumptionsreferred the substanceasrefined oil whereas in the restaurantwhat was used as groundnut beingcookingmediumwas refinedmustardoil and not groundnutoil. The billofthemustardoil so purchasedbythe restaurantwas also produced.3.Learned counsel for the Petitioner further contends due to compellingcircumstanceshe had to leave the country and visit his daughterresiding inAmerica somewhere in the 2005-2006.The circumstances of the yearPetitionerand hiswere:miserablein the otherand were daughter country theynot in financialpositionto come back to the country. Inthe meanwhile,thecounselfor the Petitionerdid not attendthe proceedingsand the decisionwaspassedin the said case againstthe Petitioner.The Petitionercame back in theyear 2009 and learntaboutthe presentjudgmentand orderofthe learnedTrialCourt. Thereafter,the Petitionerpersonallypersuedthe matter. It is prayedthat the Petitionerwould sufferinjusticemerelybecausehis counseldefaulted.Therefore,it is prayed that the unpugnedorder passed by the learnedAddl.SessionsJudge be set aside.Crl.Rev.P.No.292/20092of5

4.I have heard learned counselfor the Petitionerand perused the record.Briefly, the case of the Complainant is that on 8^^ February, 1993 FoodInspectorSunitiKumar Guptapurchasedasampleofrefmedgroundnutoil foranalysisfrom Raj Manchandaat M/s MaharajaRestaurant,13 JanpathBhawan,Janpath,New Delhi who was carryingthe businessofthe said restaurantandthe refinedgroundnutoil was found storedin kitchenfor use ofpreparationoffood articlesfor sale. Thewas takenfrom an containerno sample openbearinglabledeclaration. Afterbeingproperlyhomogenized. The samplewas dividedinto three equal parts and each part was put in separateclean and dry bottleand each ofit was packedseparately,fastenedand sealedas per the provisionsofPFA Act and Rules. Vendor'ssignatureswere obtainedon the LHA slip andthe of the bottles. It is that before the wrapper sample alleged startingefforts were made to the witnesses but none cameproceedings, join publicforward. All the documentswere got signed from the Respondentand otherwitnesses. The sample was taken under the supervision of local healthauthorities. One ofthe three sampleswas got depositedwiththe publicanalystwith seals intact. The other two counter-partsof the sample were depositedwith the local healthauthority. On analysisofthe sample,the PublicAnalystfound that the sample does not conform to the standards. The Petitionerexercisedhis rightunderSection13(2)ofthe PFA Act and requestedto get theCrl.Rev.P.No.292/20093of5secondcounterpartsampleto be analysedfrom the DirectorCFL. Thereafter,learnedMetropolitanMagistrateafter deducmgthe evidenceplacedon recordconvictedthe Petitioner. This order of the learnedMetropolitanMagistratewasappealed againstwhich was dismissedby the learnedAddl. Sessions Judge.Thesameis impugnedin the presentpetition.

5. At the outset,the presentcase is ofmisbrandingwhere the Food Inspectorhas taken mustardoil to be groundnutoil. The Petitionerbefore the learnedMetropolitanMagistratein his statementunder Section313 Cr. P.C. pleadedinnocenceclaimingthat the sample was not of groundnutoil but of refinedmustardoil. He further statedthat he was sittingat the cash counterand thewas done in his absenceand he never disclosedthat thewassampling sampleof refined groundnut oil.Learned MetropolitanMagistrate convicted theAppellantunder Section 16(1) read with Section7 of the Act. Againstthisorderthe Appellantpreferredthe appealin the year 1998 and had to leavethecountryin the year 2005 due to personalreasons. Thereafterhis counseldidnot enterbefore the learnedCourt and the said appearanceAppellate appealwas dismissedby theAppellateCourtinhis absence.6.Hon'bleSupremeCourtin Rafiq &Anr vs. Munshilal&Anr., AIR 1981S.C. 1400 held that where an appealfiled by the Appellantwas disposedofinabsence of his counsel, the party should not suffer for the misdemeanororCrl.Rev.P.No.292/2009^of5

inactionfor his counsel. In the presentcase, after the Petitioneileft to attendhisin Americathe counseldid notbeforethe learned daughter appearAppellateCourt and the said appeal was dismissed. Learned counselfor the Petitionerassures that the Petitionerwill be present before the trial court as and whendirected.

7.Thus, in view of the facts of the case and law laid by the Hon'bleSupreme Court, it would be in the interest of justice that an oppoilunityisgrantedto the Petitionerto pleadhis innocence. Therefore,the Appellateorderpassedby the learnedAddl. SessionsJudge on 20^'' February,2009 is set asideand the matter is remanded back to the learned Appellate Court.

8.Parties are directedto beforethePatialaHouse appear Judge-in-charge,on 5"" October,2011.

Petition is disposed of

AUGUST 26, 2011'dk'

'MUKTA GUPTA, J.

Crl.Rev.P.No.292/2009

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