Gujarat High Court
Mukesh Laljibhai Thakkar & vs Food Inspector C/O Food And on 12 April, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
MUKESH LALJIBHAI THAKKARV/SFOOD INSPECTOR C/O FOOD AND DRUG CONTROL R/CR.MA/13615/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 13615 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE R.M.CHHAYA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ MUKESH LALJIBHAI THAKKAR & 6....Applicant(s) Versus FOOD INSPECTOR C/O FOOD AND DRUG CONTROL & 1....Respondent(s) ================================================================ Appearance: MR NALIN K THAKKER, ADVOCATE for the Applicant(s) No. 1 - 7 MS.MOXA THAKKAR, LEARNED APP for Respondent(s) No. 1 & 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 12/04/2013 ORAL JUDGMENT
By way of this application under Section 482 of the Code of Criminal Procedure, 1973 ( the Code for short), the applicants seek quashing of Criminal Case No.69 of 2005 pending in the Court of Judicial Magistrate First Class, Mandvi, Dist:Kutch as well as the order dated 15.03.2005, whereby process has been issued to the present applicants.
Respondent No.1 Food Inspector lodged above referred complaint in the Court of Judicial Magistrate First Class, Mandvi, Kutch alleging that on 24.02.2003, when he visited Lalji Shivji Company, situated at Junavas, Gadhshisha, Tal: Mandvi (Kutch), one Mukeshkumar Laljibhai Thakkar was present as vendor. Respondent No.1 collected the sample of Gaay Chhap Besan being sample No.10/03, manufactured by applicant No.7 herein. It is further alleged that the said sample was collected in accordance with Rule-12 of the Prevention of Food Adulteration Rules, 1955 and was sent for its analysis to the Public Analyst of Food & Drugs Laboratory, Vadodara after following due procedure under the provisions of Prevention of Food Adulteration Act ( the Act for short). It is further alleged in the complaint that the report of Public Analyst was received on 31.03.2003 and on perusal of the said report, it shows that the sample so collected was found to be adulterated containing foreign starch-vatana starch. It is stated that after collecting further details, it was found that the applicants as well as other accused persons have committed breach of provisions of the Act, more particularly Section 7(1) and 7(5) of the Act and therefore, respondent No.1-Food Inspector submitted a proposal seeking sanction to launch prosecution against the accused persons on 19.08.2004 and vide communication dated 15.12.2004, the Authority gave such a sanction and accordingly, the complaint came to be lodged on 10.03.2005 being Criminal Case No.69 of 2005 before the Judicial Magistrate First Class, Mandvi Dist:Kutch under the provisions of the Act.
3. As stated in the application, the present application relates to original accused Nos.1 to 6 and 14. The applicants have also placed on record, the order dated 08.04.2011 passed by this Court in Criminal Misc. Application No.5354 of 2005, which was preferred by the original accused Nos.8 to 14, however, the original accused no.14 did not press the petition. This Court (Coram:S.R.Brahmbhatt, J.) vide judgment dated 08.04.2011 quashed the complaint, so far as accused Nos.8 to 13 are concerned. The applicants have further submitted that original accused No.7, one of the Directors of original accused No.14-Manufacturing Firm, expired on 05.02.2005 and therefore, as such the complaint stood abated, as far as accused No.7 is concerned.
4. Mr.Nalin Thakkar, learned counsel for the applicants has taken this Court through the relevant dates as well as the Analysis Report dated 29.03.2003. He further submitted that the sample of Gaay Chhap Besan came to be collected by respondent No.1 on 24.02.2003 and the same was sent for its analysis to the Public Analyst, Vadodara and accordingly, the report dated 29.03.2003 was received by respondent No.1 vide letter dated 31.03.2003. Mr.Thakkar, further pointed out that the Food Inspector submitted an application dated 19.08.2004 to the Local Health Authority for granting permission to prosecute against the applicants and such permission came to be granted by the Competent Authority on 15.12.2004 and accordingly, the complaint came to be filed on 10.03.2005. Mr.Thakkar, further pointed out that as such the complaint came to be filed after 25 months from the date on which the sample came to be collected. He further submitted that the report of Public Analyst clearly mentions the Date, Month and Year of packing of sample, which is 06.01.2003. He, further relying upon the Public Analyst report; submitted that in the Analysis Report, it is clearly mentioned that Best before: within 4 months from the date of packing . He, further submitted that when the shelf-life of the sample (Gaay Chhap Besan) was 4 months from the date of packing and the complaint having been filed after 25 months, the applicants lost their valuable rights, which has been conferred upon the accused by provisions of Section 13(2) of the Act. He further submitted that the right given under the provisions of Section 13(2) of the Act is a valuable right, whereby the accused persons can get the sample so collected for analysis, tested by the Central Food Laboratory and that under sub section (3) thereof, the certificate of Director, Central Food Laboratory would supersede the report of the Public Analyst and report of the Central Food Laboratory is treated as conclusively evidence of its contains. He further submitted that the applicants-accused are prejudiced in their defence and in such a situation, trial would stand vitiated.
Mr.Thakkar, has relied upon the decision rendered by this Court in the case of Hindustan Unilever Limited -Formerly known as Hindustan Lev Vs. State of Gujarat & Anr., as well as decision rendered by this Court in the case of Nestle India Limited Vs. State of Gujarat in Criminal Misc. Application No.10732 of 2010 dated 22.10.2010 and submitted that this Court has relied upon the decision of the Hon'ble Apex Court as well as this Court and have allowed the petition on the ground that shelf-life of the food article in question having expired, the applicant therein was deprived of his valuable right under Section 13(2) of the Act and submitted the said decision squarely apply to the present case. Therefore, the complaint in question is required to be quashed and set aside.
Per contra, Ms.Moxa Thakkar, learned Assistant Public Prosecutor for respondent No.1-State relied upon the affidavit filed by respondent No.1-Food Inspector and submitted that respondent No.1 made all endeavour to lodge the present complaint, however, time was taken for collecting necessary details from other accused such as, from whom the article came to be purchased by the applicants, from whose premises the sample was drawn as well as the details of Directors of the Company, who manufactured the Gaay Chhap Besan i.e. applicant No.7 herein. She further submitted that the Public Analyst report was made within a period of best before use i.e. before the expiry date and therefore, it is not open for the applicants to contend that they have been deprived from the rights under Section 13(2) of the Act. She further submitted that in fact, after the complaint came to be filed, notice was issued to all the applicants under Section 13(2) of the Act for re-analysis the sample from the Central Food Laboratory on 16.03.2005, however, the applicants neither gave any reply nor they demanded re-analysis of the sample by the Central Food Laboratory. Ms.Thakkar, learned APP opposed this application submitting that the application deserves to be dismissed and it would be open for the applicants to raise all these contentions before the Trial Court.
7. Considering the submissions made by both the sides, it is an admitted position that as can be seen from the bare reading of the Analysis Report (at Annexure-C to the application), that the sample came to be collected on 24.02.2003. It also transpires from the Public Analyst report that the sample sent by respondent No.1 was received by the laboratory on 06.03.2003 for analysis. The report further indicates that the details as per Rule-32 of the Prevention of Food Adulteration Rules, 1955 indicates (a)Name of Food : Besan Gaay Chhap (b) Name of Ingredients: Grams Floor(c)Name and Address of Manufacturer:Shri Bhagwati Flour and foods Pvt. Ltd., near AMTS Bus Stand, Naroda, Ahmedabad (d) Net weight: 500 Gm. (e) Lot No.: 40 (f) Date and Month and Year of packing : 6/1/03 and (I) Best before:
within 4 months from the date of packing. Therefore, it reveals that the shelf-life of the sample of Gaay Chhap Besan was of 4 months from the date of packing i.e. from 06.01.2003, which admittedly expired on 05.05.2003. It is no doubt true that the said report indicates that the sample was adulterated and analysis report indicates that Vatana Starch was present, however, it is also an admitted fact that the complaint came to be lodged as stated by respondent No.1 in his affidavit after 25 months i.e. on 10.03.2005 and notice under Section 13(2) of the Act was given on 16.03.2005, which is admittedly after shelf-life of the sample of Gaay Chhap Besan .
Section 13(2) of the Act are as under:-
(2)On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
(2A) When an application is made to the court under sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition.
(2B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.
(2C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court:
Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B).
(2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution.
(2E) If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.
8. The bare reading of the aforesaid provision clearly indicates that the report of the Public Analyst would be available to the accused persons only after prosecution is instituted in the concerned Court. In the instance case, though the report of the Public Analyst was prepared on 29.03.2003 and the same was available to respondent No.1 by communication dated 31.03.2003, the complaint has been lodged almost after 25 months i.e on 10.03.2005. It is therefore, evident that the complaint has been lodged after shelf-life of the sample of article (Gaay Chhap Besan) had expired.
9. This Court (Coram:H.N.Devani, J.) in similar facts situation being the case of Hindustan Unilever Ltd. Through K.B.Nagarkar Vs. State of Gujarat & Anr., Criminal Misc. Application No.3776 of 2008 has observed thus:-
8. At this juncture reference may be made to the decision of the Supreme Court in State of Haryana vs. Unique Farmaid (P) Ltd (supra), wherein, in the context of the Insecticides Act, it had been contended that the shelf life of the sample was not relevant as the Act does not prescribe any expiry date. The court found no substance in the said contention. It was observed that if the expiry date is not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned.
9. In the facts of the present case, a perusal of the report of the Public Analyst reveals that there is reference to rule 32 of the Rules, below which various details have been specified, inter alia, referring to the batch number, date, month and year of manufacture/pkg, best before, etc. Rule 32 of the Rules provides for specifying various details on the label of every package of food, including: (a) the name, trade name and description of food contained in the package, (b) the names of the ingredients used in the product,
(c) name and complete address of manufacturer, (i) the month and year in capital letters up to which the product is best for consumption, in the following manner namely, BEST BEFORE MONTH AND YEAR OR BEST BEFORE MONTHS FROM PACKAGING OR BEST BEFORE MONTHS FROM MANUFACTURE OR BEST BEFORE UPTO MONTH AND YEAR (for the period up to and inclusive of 1st September 2001) OR BEST BEFORE WITHIN MONTHS FROM THE DATE OF PACKAGING/MANUFACTURE (for the period up to and inclusive of 1st September 2001) .
9.1 Thus, there is a statutory requirement for mentioning the best before date on the label of the package of food article. Under the circumstances, when the statute itself provides that the article of food should bear the date before which it is best for use, the same would bear some significance, namely, that the article would lose its original characteristic due to lapse of time. In State of Haryana v. Unique Farmaid (P) Ltd. (supra), the Supreme Court in the facts of the said case, wherein by the time the matter reached the court, the shelf life of the sample had already expired, observed that no purpose would have been served informing the court of such an intention to have the sample tested from the Central Insecticides Laboratory and held that the report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case, the accused had been deprived of that right, thus, prejudicing them in their defence.
10. In the case of Municipal Corporation of Delhi v. Ghisa Ram, (1967) 2 SCR 116, wherein the article of food was curd and there was a delay in lodging the prosecution, when the sample was received by the Director, he reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible. The Supreme Court held that the right under section 13(2) is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein .
11. In the aforesaid case, the sample in question was a sample of loose curd which does not bear any label indicating the date of manufacture or best before date. However, in a case like the present one where the article of food bears a Use before date , the same bears some significance, hence, in such a case after the said date it would not be necessary to obtain a certificate of the Central Food Laboratory as to whether or not the food article is capable of analysis. The fact that the shelf life of the food article has expired would be indicative of the fact that the same is no longer capable of analysis.
12. It may be noted that in Girishbhai Dahyabhai Shah Vs. C.C. Jani, (2009) 15 SCC 64, the Supreme Court was dealing with a case where the appellant therein, in a petition under section 482 of the Code, had contended that in respect of the sample of curd collected by the Food Inspector on 8th April, 1988, the report of the Public Analyst having been served on him only on 17th July, 1989, he was not in a position to apply for the examination of the second sample to which he was entitled in terms of section 13(2) of the Act, prior to the said date. It was also the case of the said appellant that since the report had been served on him only on the aforesaid date, by which time the sample of curd had deteriorated, any further examination of such sample had become meaningless, thereby depriving him of the valuable right conferred on him by section 13(2) of the Act. The court held that it is only on receipt of the report of the public analyst under sub-section (1) of section 13 of the Act to the effect that the article of food is adulterated, can a prosecution be launched and a copy of the report could be supplied to the accused. Sub-section (2) of section 13 of the Act also indicates that on receipt of the report, the accused could, if he so desired, make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. The court was of the view that in other words, the appellant therein was prevented from applying for analysis of the second sample before 17th July, 1989, by which time the sample of curd had deteriorated and was not capable of being analysed as was found in the case of Ghisa Ram. Thus, even in a case where the sample had not been sent for analysis to the Director, Central Food Laboratory, the Supreme Court considering the fact that by the time the report of the Public Analyst had been supplied to the accused the sample of curd had deteriorated had held that the accused had been deprived of his valuable right under section 13(2) of the Act.
13. This court in an unreported decision in the case of Nestle India Limited v. State of Gujarat rendered on 22nd October, 2010 in Criminal Miscellaneous Application No.10732 of 2010 was dealing with a case wherein nearly four years from the date of collection of sample, the complaint was lodged along with which the report of the Laboratory was made available. The court held that even if the petitioners wish to dispute the contents thereof and seek further report from the Central Food Laboratory in terms of sub-section (2) of section 13, the same would be a futile exercise since in a perishable item such as tomato ketchup after four years, there would be deterioration. Following the decisions of the Supreme Court in Gupta Chemicals Private Limited & Anr. vs. State of Rajasthan & Anr., (2010) 7 SCC 735 and Northern Mineral Limited vs. Union of India & Anr., (2010) 7 SCC 726, the court quashed the proceedings. This decision would be squarely applicable to the facts of the present case.
10. In view of the aforesaid discussion, ratio laid down by this Court in the aforesaid judgment as well as ratio laid down by the Hon ble Apex Court in the cases referred to in the aforesaid Judgment would squarely apply in the instance case also.
11. It transpires from the record of the application that the complaint came to be lodged after shelf-life of the food article (Gaay Chhap Besan), which prescribes that Best Before: 4 months from the date of its packing, which is 06.01.2003. The applicants were given copy of the report after the expiry of shelf-life of the said food article and therefore, the applicants have been deprived of their valuable rights under Section13(2) of the Act of getting sample analyzed by Director, Central Food Laboratory, hence any further continuation of criminal proceedings against the applicants would amount to abuse of process of Court and law and the same would render the trial futile.
12. Accordingly, this Court is of the opinion that it is a fit case for exercise of powers under Section 482 of the Code to prevent the abuse of the process of Court and law and secure the ends of justice. The application, therefore, succeeds and is hereby allowed. Criminal Case No.69 of 2005 pending in the Court of Judicial Magistrate First Class, Mandvi, Dist: Kutch, is hereby quashed and set aside. Rule is made absolute with no order as to costs.
(R.M.CHHAYA, J.) Suchit Page 14 of 14