Pepsico India Holdings Pvt.Ltd & vs State Of Gujarat & on 23 September, 2016

[Cites 49, Cited by 0]

Gujarat High Court

Pepsico India Holdings Pvt.Ltd & vs State Of Gujarat & on 23 September, 2016

Bench: A.J. Shastri

                R/SCR.A/3508/2012                                           CAV JUDGMENT




                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     SPECIAL CRIMINAL APPLICATION NO. 3508 of 2012


                                             With


                     SPECIAL CRIMINAL APPLICATION NO. 3509 of 2012


         FOR APPROVAL AND SIGNATURE:


         HONOURABLE MR.JUSTICE A.J. SHASTRI
         ================================================================

         1     Whether Reporters of Local Papers may be allowedNo
               to see the judgment ?

         2     To be referred to the Reporter or not ?                          No

         3     Whether their Lordships wish to see the fair copy ofNo
               the judgment ?

         4     Whether this case involves a substantial question ofNo
               law as to the interpretation of the Constitution of
               India or any order made thereunder ?

         ================================================================
                    PEPSICO INDIA HOLDINGS PVT.LTD & 1....Applicant(s)
                                        Versus
                         STATE OF GUJARAT & 1....Respondent(s)
         ================================================================
         Appearance:
         MR. SV RAJU SENIOR ADVOCATE WITH BHADRISH S RAJU, ADVOCATE
         for the Applicant(s) No. 1 - 2
         MRS VD NANAVATI, ADVOCATE for the Respondent(s) No. 2
         MR KP RAVAL ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
         No. 1
         ==========================================================

             CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

                                    Date : 23 /9 /2016



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HC-NIC                                  Page 1 of 45     Created On Sat Sep 24 02:42:12 IST 2016
                 R/SCR.A/3508/2012                                                 CAV JUDGMENT




                                           CAV JUDGMENT

1. The petitioners by way of present petitions have approached the Court for quashing the complaint being Criminal Case No. 52 of 2002 pending before the learned Chief Judicial Magistrate, Jamnagar as also the order dated 10.01.2003 whereby upon said complaint, process came to be issued.

2. The background of facts leading to filing of the petition are that original accused no. 1 in the complaint was engaged in the business of selling of clothes and to facilitate the customers, utilized sweetened carbonated water ( Leher - Miranda) 500 ml packed bottles. It was alleged in the complaint that original accused nos. 2 to 4 are the partners of original accused no. 1 whereas accused no. 5 is the seller of the impugned packed bottles of sweetened carbonated water (Leher Miranda) 500 ml. The respondent no. 2 had filed the complaint by alleging that the accused persons have utilized sweetened carbonated water ( LeherMiranda) 500 ml and by selling the said articles being not satisfied with the standard prescribed under the Prevention of Food Adulteration Act and Rules. On 05.09.2002 for the purpose of analysis under the provisions of Prevention of Food Adulteration Act, 1954 ( for short 'the Act') sent to the public analyst and on 30.09.2002, the public analyst reported that sample collected which is examined did not confirm to the standards of the Act and the Rules and on the basis of Page 2 of 45 HC-NIC Page 2 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT such report of public analyst, a complaint came to be filed against all the accused persons which complaint is questioned by way of present petition. So far as present petition is concerned, it is brought by the original accused no. 6 Pepsico Indian Holdings Pvt. Ltd. and accused no. 7 being the nominee of the company has questioned the legality of the complaint on the premise mentioned in the petition.

3. Before dealing with the case in detail, a fact is required to be noticed that this very complaint came to be brought before this Court in the form of Special Criminal Application No. 319 of 2003 for seeking quashing of the same and the Hon'ble Court vide order dated 02.12.2012 was pleased to allow the petition with exemplary cost quantified to Rs. 10000/. The said petition was brought by other co accused namely Digjam Retail Show Room Shoppers Paradise. The decision delivered by this Court is annexed to the petition compilation at page 52 as Annexure 'B'.

4. Now reverting back to the facts of the present case, it is contended by the petitioners that the allegations leveled in the complaint do not disclose any offence much less an offence punishable under Section 7(i) read with Section 16(1) (a)(i) of the Act of 1954. It is further contended in the petition that the complaint is not filed under Section 17 of the Act and there is no charge levelled specific against the petitioner company and its nominee. The learned Magistrate ought to Page 3 of 45 HC-NIC Page 3 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT have appreciated that there must be a separate charge against the petitioner company as required under Section 17 of the Act and therefore, on the basis of said complaint against the petitioner it tantamount to be an abuse of process of law. It was also contended that report of public analyst has failed to state that sample is adulterated. It was also contended that the complaint in question is inherently improbable on the basis of which, no prudent person can reach to the conclusion that there is sufficient ground for proceeding against the petitioners under Section 7(i) read with Section 16(1)(a)(i) of the Act. It was also contended that the petitioner company is a reputed company is not at all require for commission of crime and the complaint in question is filed with a manifestly malafide, based upon this and other contentions, the petition was brought before this Court seeking quashment of the complaint which was registered before the learned Magistrate as Criminal Case No. 52 of 2002. This Court on 14.12.2012 was pleased to admit the petition and accordingly granted an adinterim relief in terms of para 7 (b) and later on, the said interim relief is continued all through out and it has now come up for final disposal.

5. It appears from the record that on 22.04.2016, a mention was made by the learned counsel for the petitioner that there some cognate matter in form of Special Criminal Application No. 3509 of 2012 is pending and therefore, this petition is ordered to be heard along with the said cognate matter.

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6. Learned counsel for the petitioner has brought attention of the Court and conveyed that the facts are almost similar except the date and criminal case number and therefore, by treating the present Special Criminal Application No. 3508 of 2012 as a lead matter by a common judgement and order, both the petitions are to be dealt with and to be disposed of on the following line.

7. A bare perusal of number of complaints filed by respondent no. 2 indicates that basically the complaint is filed under Section 7(i) and by violating that, it is alleged that offence under Section 16(1)(a)(i) of the Act has been committed and based upon this complaint, the learned Magistrate has issued summons to the petitioners. As stated above, original accused no. 1 to 4 who were joined in the Criminal Case referred to above have approached this Court by way of Special Criminal Application No. 319 of 2003 as stated above wherein after hearing all the parties to the petition, this Hon'ble Court has specifically come to the conclusion that arraigning all the persons as accused who were infact the consumers of Mirinda bottle are unnecessarily dragged in the prosecution and therefore, by examining the complaint from that angle, the petition came to be disposed of and allowed. A reference is required to be made of the relevant paragraph of the said order hereunder:

"4. Heard Shri Khambolja, learned advocate appearing on behalf Page 5 of 45 HC-NIC Page 5 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT of the petitioners and Shri Satyam Chhaya, learned advocate appearing on behalf of the original complainant. This Court has also considered the documents on record as well as the impugned Complaints, which cannot be sustained for a moment so far as the petitioners are concerned. It is required to be noted that as such the petitioners were the consumer of Mirinda bottle and in fact they made the Complaint with respect to adulteration in the Mirinda bottle and in fact they were the complainant but still for whatsoever reason they are arraigned as an accused. By no stretch of imagination it can be said that the petitioners were the accused under the provisions of the Prevention of Food Adulteration Act. This Court fails to appreciate how the complainant and/or consumer who made the grievance with respect to adulteration can be arraigned as an accused. The learned advocate appearing on behalf of the original complainant is also not in a position to satisfy the Court how the petitioners can be arraigned as an accused for the offence under the provisions of the Prevention of Food Adulteration Act. It appears that arraigning the petitioners herein as accused, who were in fact the consumer of Mirinda bottle and even the complainant also demonstrates the non application of mind by the sanctioning authority and the original complainantconcerned Food Inspector of A.M.C. Even the learned Magistrate has also erred in taking cognizance of the offence/complaint against the petitioners and has mechanically issued the summons/process against the petitioners. Under the circumstances, this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned Complaints qua the applicants.

5. In view of the above, the present application succeeds and the impugned Complaints, being Criminal Case No. 155/2002 and 156/2002 pending in the Court of learned Metropolitan Magistrate, Ahmedabad filed by the Food Inspector, Ahmedabad Municipal Corporation are hereby quashed and set aside so far as the petitionersoriginal accused nos. 1 to 4 are concerned. However, the same shall be without prejudice to the rights and contentions of Page 6 of 45 HC-NIC Page 6 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT the Food Inspector, Ahmedabad Municipal Corporation and the prosecution against other accused persons, which shall be considered by the concerned Magistrate in accordance with law and on its on merits at the earliest.

6. With this, the present petition is allowed with exemplary cost, which is quantified at Rs. 10,000/, which shall be initially paid by Ahmedabad Municipal Corporation. However, it will be open for Ahmedabad Municipal Corporation to recover the same from the concerned Food Inspectororiginal complainant after following the due procedure as required. The aforesaid amount of Rs. 10,000/ shall be deposited with the Registry of this Court within a period of four weeks from today and on such deposit, Registry is directed to transmit the same to the Gujarat High Court Legal Services Committee. Rule is made absolute to the aforesaid extent."

8. Learned senior counsel appearing for the petitioner Shri S.V. Raju has contended that the complaint is nothing but a clear example of abuse of process of law and therefore, contended that in any circumstance, the Court should not encourage such an attempt. While contending, the learned counsel has drawn the attention to the notice dated 26.07.2002 attached to the petition wherein it has been stated in paragraph no. 4 of the said complaint that the Mirinda bottle 500ml was purchased vide order dated 26.06.2002 vide bill no. 8414. In the said notice, it was informed that bottle was found to be of inferior of quality and request for replacement was refused. It appears that notice came to be issued with a demand of Rs. 3 lacs by way of damage sustained failing which, appropriate legal action either civil or criminal proceedings would be initiated and by drawing attention to this notice, the learned Page 7 of 45 HC-NIC Page 7 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT counsel for the petitioner stated that this is nothing but an illmotive to excavate something from the petitioner which tantamounts to bea sheer abuse of process of law. The learned counsel has further drawn an attention of the Court to the reply which has been given refuting to the allegations and when the said reply was given by the petitioner on 31.07.2002, on 06.08.2002 Mr. Sureshbhai Chimanlal Shah, partner of accused no. 1 has written a letter to Ahmedabad Municipal Corporation by asserting that the petitioner had committed an offence punishable under the provisions of the Prevention of Food Adulteration Act. The background of this circumstance appears to have led respondent no.2 to file a complaint in a routine manner without observing the mandatory requirement of the statute and by contending this, the counsel for the petitioner requested the Court to quash the said complaint which is nothing but an abuse of process of law.

9. It has also been brought to the notice of Court that public analyst report is dated 30.09.2002 and based upon it, the complaint came to be filed. It was contended by the counsel for the petitioner that the best before use period of substance in question is three months and without visualizing this, straightaway complaint came to be filed by respondent no.2 in an irresponsible manner and therefore, filing of the complaint at the dictum of the somebody is nothing but the abuse of process of law.

10. The learned counsel for the petitioner further submitted that the Page 8 of 45 HC-NIC Page 8 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT date of expiry of impugned bottle is three months and therefore, valuable right of reexamination by the Central Food Laboratory has been lost on account of malafide action on the part of the respondent Food Inspector who caused delay. It was also contended that the sample which has been collected is also not as per the mandatory procedure prescribed under the Act and therefore, such fatal irregularity which has been committed would go to the route and therefore, the complaint deserves to be quashed. It was also contended by counsel for the petitioner that in absence of any laboratory being certified for analysis under Section 23(1A) (ee) and in absence of prescribed and valid method of analysis under Section 23(1A) (hh) of the Act on the date of alleged offence, the prosecution could not have been launched on the basis of public analyst report and keeping this in mind, the counsel submitted that sanction to prosecute being granted is also bad in law, suffers from vice of non application of mind and therefore, based upon it, the case in question deserves to be quashed. It was also contended by the counsel that sanctioning authority before granting sanction ought to have appreciated that the sample in question was under the control of original accused no. 1 to 4 for almost period of more than two months and it is only pursuant to their pressure, sanction to prosecute was granted without application of mind. It was also brought to the notice that analysis report on record does not indicate that the seized soft drink was injuries to health or causing prejudice to the purchaser and therefore, in absence of such report of said nature, Page 9 of 45 HC-NIC Page 9 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT the complaint could not have been entertained and therefore, issuance of process dated 10.01.2003 is also required to be quashed.

11. The learned senior counsel Mr. SV Raju for the petitioner has mainly further submitted that complaint could have been filed by the purchasers and Food Inspector has no right to file the complaint in such an irregular manner. It was also contended that there is a clear violation of a right available to the petitioner under Section 13(2) of the Act and that being so the complaint is required to be quashed in the interest of justice. It was also contended that complaint is filed on 13.12.2002 and the notice as referred to above indicates that bottle came to be purchased on 26.06.2002 and therefore, the complaint being generated after almost a period of more than six months, the same ought not to have been entertained and no summons could have been issued. The counsel submitted that even the first analysis appears to be after almost a period of three months essentially after the best before use period and therefore, every step after "best before use period " would be of no avail and complaint could not have been filed. This has clearly violated statutory provision contained under Section 13(2) of the Act conferred upon petitioners. The learned counsel has drawn attention of Rule 32 (I) as also Rule 32(f) and contended that the complaint is nothing but a sheer abuse of process of law. It was also contended that report of analyst merely indicates 'fungus' which on account of several reasons can be developed and report of analysis is not indicating any remote Page 10 of 45 HC-NIC Page 10 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT circumstance reaching to the said conclusion that any offence is committed and therefore, the counsel submitted that the complaint in question is nothing but clear abuse of process of law.

12. The learned counsel has further submitted that Food Inspectors are entrusted with the powers under Section 10 of the Act and has contended that the manner and method of collecting samples which is stipulated under Section 11 of the Act is also not observed and, therefore, the counsel submitted that the entire procedure which has been adopted leading to filing of the complaint is exfacie erroneous and impermissible and therefore, the complaint based upon it deserves to be quashed.

13. The learned counsel has drawn attention to various statutory provisions contained under the Act. Sections 10, 11, 12 and 20 and has contended that there is a complete departure from the mandatory procedure established by law by filing complaint against the petitioner in this particular manner and therefore, learned counsel submitted that this is nothing but sheer abuse of process of law and complaint in question is required to be quashed in the interest of justice.

14. Learned counsel for the petitioner has relied upon various decisions in case of [i] Pepsico India Holdings Private Limited versus Food Inspector and another reported in 2011(1) SCC 176, [ii] Page 11 of 45 HC-NIC Page 11 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT in case of Medicamen Biotech Limited and another versus Rubina Bose, Drug Inspector reported in 2008(7) SCC 196, [iii]in case of Gupta Chemicals Private Limited and others versus State of Rajasthan and another reported in 2010 (7) SCC 735, [iv] in case of Northern Mineral Limited versus Union of India and another reported in 2010 (7) SCC 726 and [v] in case of Saumindra Bhattacharya versus State of Bihar reported in 2010 (15) SCC 338 and two decisions of this Hon'ble Court delivered in Special Criminal Application No. 539 of 2011 dated 27.04.2012 as well as Criminal Misc. Application No. 10732 of 2010 dated 22.10.2010 and various other decisions to which, the Court would like to deal with later on at an appropriate stage and by citing these citations, the counsel for the petitioner submitted that complaint is nothing but a sheer abuse of process of law requires to be quashed in the interest of justice. No other submissions are made.

15. To oppose this petition, the learned advocate Mrs. VD Nanavaty appearing on behalf of the respondent No. 2 company has contended that the petition is brought at a much belated stage by the petitioner and therefore, no interference be made in exercise of inherent jurisdiction. The learned advocate has drawn attention to the averments contained in the petition memo and has conveyed that the contentions which have been raised now before the Court are not reflected in pleadings of the petition and therefore, in absence of any pleadings at the initial Page 12 of 45 HC-NIC Page 12 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT stage, while bringing the petition, it is not permissible for the counsel of the petitioner to further improve the case. The learned advocate further contended that there is an unexplained delay in approaching the Court by way of present petition. The sample was collected in the year 2002 and the petition is filed after almost a period of 10 years in 2012 with no explanation of delay and therefore, the learned advocate submitted not to interfere in exercise of jurisdiction.

16. It was also contended that sample which was collected was of glass bottle and the period of "best before use" is six months and therefore, there is no irregularity of any nature in either collecting the sample or sending the sample and the learned advocate has stated that the report of public analyst is to be treated as final and therefore, the prosecution cannot be throttled at initial stage itself. So far the specific contention of section 13(2) of the Act is concerned, she has submitted that the petitioners themselves have not availed said opportunity and therefore, now they cannot be allowed to agitate as they have waived their right contained under Section 13(2) of the Act.

17. The learned counsel by referring to the contents of affidavitin reply filed by respondent no.2 has stated that proper procedure has been complied with and the prosecution been filed after getting proper sanction from the authority. The counsel further submitted that there are disputed questions of facts which may not be made a subject matter of Page 13 of 45 HC-NIC Page 13 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT exercise of power under Section 482 of the Code of Criminal Procedure or Article 226 of the Constitution of India and therefore, counsel requested not to interfere with the petition and prosecution be allowed to proceed further with the case. The learned counsel has drawn attention of the Court to various decisions and stated that this is not the case in which, the inherent jurisdiction is allowed to exercised at the instance of the petitioners. The learned counsel has placed reliance on the decision in case of [I]Tulsiram versus State of Madhya Pradesh reported in AIR 1985 SC 299, [ii] Rajendra S/o Ram Ratan & Ors. Versus State of M.P. reported in AIR 1999 SC 1757, [iii] Adhiraj Amar Kanhaiyalal versus State of Maharashtra reported in 2010 (3) Crimes 841 ( Bom) 2010 (112) BomLR 3366, [iv] Ajay Modi versus State of Gujarat 2015 (0) AIJELHC 233693, [v] Pepsi Co. India Holdings Ltd. vs. State of Gujarat reported in 2015 (2) GLH 556, [vi] Hotel Savera Through ITS Partners vs. State of Gujarat 2015 (O) AIJELHC 233167 and several other decisions to which, this Court would like to deal with it at an appropriate stage, but to summarize, the contentions of the learned advocate in substance is that power under Section 482 of the Code of Criminal Procedure and jurisdiction under Article 226 of the Constitution of India may not be exercised in the background of this peculiar facts and circumstance and by referring to affidavitinreply has opposed the petition and requested the Court not to grant the relief and to dismiss the petition.

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18. Having heard learned counsel appearing on behalf of the respective parties and before dealing with the respective contentions of both the sides, few statutory provisions are worth to be taken note of. Under Section 9 of the Act, Food Inspector to be nominated by way of Notification and Sub section (1) of Section 10 of the Act prescribes powers of Food Inspector to take samples of any article of Food from any persons selling such article, any person who is in course of conveying or delivering or preparing to deliver such article to a purchaser or consignee; a consignee after delivery of any such article to him and to send such sample for analysis to the public analyst for the local area within which such sample has been taken. While entrusting the said power of collecting sample the Food Inspectors are authorized to enter and inspect any place where the article is either manufactured or sold for sale or stored for manufacture of other article for food under Sib Section 4 of Section 10 of the Act, the power of seizure and to keep in the safe custody is also entrusted and various other powers are also invested in Food Inspector to carry out the object for which the act is brought. Section 11 of the Act prescribed the procedure to be followed by the Food Inspector who takes the sample for food analysis and the specific procedure is prescribed.

19 Section 12 of the Act permits the purchase of any article of food other than the food inspector from having such article analyzed by the public analyst on payment of such fees as may be prescribed and from Page 15 of 45 HC-NIC Page 15 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT receiving from the public analyst a report of his analysis.

20. Section 13 of the Act is very relevant for the purpose of consideration of this Court. Section 13 is reproduced hereinafter.

13. Report of public analyst : 2[(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and 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.

21. Section 14 of the Act deals with an issue of warranty to be given by manufacturers, distributors and dealers and Section 16 of the Act is the provision whereby penalties have been prescribed for commission of offence the Act. Section 17 of the Act deals with the offence by the Page 16 of 45 HC-NIC Page 16 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT companies and Section 20 of the Act deals with cognizance and trial of offences which are initiated by the authority. A specific power is conferred upon the Court under Section 20(A) of the Act to implead manufacturer and other related persons and Section 23 of the Act invested the powers to frame the rules. The relevant clause of Section 23 of the Act are also worth to be taken note of is issue issue entangled in the proceedings about it and therefore, the same is reproduced hereinafter.

"23. Power of the Central Government to make rules: The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act. Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said rules.] xxxxxxxxxxx 1[(ee)defining the laboratories where samples of article of food or adulterants may be analysed by public analysts under this Act;] xxxxx xxxxxxx 1[(hh) defining the methods of analysis;] Part II is dealing with the functions of Central Food Laboratory in the Page 17 of 45 HC-NIC Page 17 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT Prevention of Food Adulteration Rules, 1955. Rule 4 ((0 of the said Rules reads as under:

(9) The manuals of method of analysis brought out by Ministry of Health and Family Welfare shall be adopted for analyzing the samples of food articles. However, in case the method for analyzing any parameter is not available in these manuals, the method of analysis prescribed in the AOAC/ISO/Person's/ JACOB/IUPAC/Food Chemicals Codex/BIS/Woodmen/Winton Winton/Joslyn shall be adopted. Further, in case of nonavailability of method of analysis in these manuals, the method prescribed in other standard published literature or publication shall be adopted.

21.1 Rule 9 of the Rules deals with the duties of Food Inspector and Rule 9(A) of the Rules is again prescribing the schedule in which the sample to be sent for analysis. Part V of the Rules deals with sealing, fastening and despatch of samples wherein Rule 14 as prescribed the manner and method of sending sample for analysis. Rule 15 postulates the bottles or container to be labelled and addressed. Rule 16 of the Rules prescribes the manner of packing and sealing the samples. Rule 17 of the Rules prescribed the manner of despatching containers of samples. Rule 22 of the Rules deals with quantity of sample sent to be considered as sufficient. Rule 32 of the Rules 32 deals with a prepackeged food to carry a label. Rule 32(f) and Rule 32(g) reproduced as under:

(f) Date of manufacture or packing The date, month and year in which the commodity is manufactured, Page 18 of 45 HC-NIC Page 18 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT packed or prepacked, shall be given on the label:

Provided that the month and the year of manufacture, packing or prepacking shall be given if the "Best before Date" of the product is more than three months;

Provided further that in case any package contains commodity which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or prepacked shall be mentioned on the label.

(g) Use by date/recommended last consumption date/expiry date shall be given,

22. Now in the backdrop of aforesaid statutory provisions the contentions of both sides are to be dealt with hereunder. The learned counsels to support their contentions referred to above relied upon some of the decisions of which some relevant decisions are dealt with in background hereunder

23. The counsel for the petitioner has relied upon the decision in case of Shivkumar alias Shiwalamal Narumal Chugwani versus State of Maharashtra reported in 2010 (2) FAC 239 wherein the Bombay High Court in consideration of the effect of provision contained under Section 13(2) of the Act held that violation thereof would be fatal to the prosecution in that particular background of facts, the High Court of Bombay Nagpur Bench had quashed the complaint. The counsel further relied upon another decision in case of Girishbhai Dahyabhai Shah versus C.C. Jani and another reported in 2009 (15) SCC 64 wherein Page 19 of 45 HC-NIC Page 19 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT also the counsel has drawn the attention that the Hon'ble Apex Court has dealt with Section 13(2) of the Act and also the effect of Section 16(1)(a)(i) of the Act and has held that deprivation of the option of Section 13(2) of the Act would be prejudicial and lead to serious flow and in the background of that fact, the Hon'ble Apex Court has quashed the proceedings and the learned counsel has conveyed that this decision has been delivered in case from this very Court. Yet in another decision reported in 2012 (2) FAC 504 M/s Marico Ltd. Versus State & V.N. Gangrade and another wherein the Madhya Pradesh High Court vide its Indoor Bench has delivered the decision on the issue pertaining to violation of Section 13(2) of the Act and held that it causes a serious prejudice to the accused and thereby the complaint in respect to that case is quashed. The learned counsel for the petitioner further relied upon in another decision reported in 2012 (2) FAC 441 ITC Ltd & Others versus The State of Madhya Pradesh, wherein also in similar background, the complaint when came to be filed after long lapse of date of expiry of sample, the Court quashed the proceedings. Similarly, in another decision pointed out in case of Rameshwar Dayal versus State of U.P. reported in 1995 supplementary 4(SCC) 659, wherein the Hon'ble Apex Court while dealing with the provision of Section 13(2) of the Act has held that nonsupply of report of public analyst to the accused is resulting in serious prejudice to him and in that particular case even the conviction came to be set aside. The counsel further relied upon the decision in case of Saumindra Bhattacharya versus Page 20 of 45 HC-NIC Page 20 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT State of Bihar reported in 2010 (15) SCC 338 wherein also the Hon'ble Apex Court held that even assuming that some report of public analyst pun on record during pendency of complaint before this factor will not cure the definition of Section 20 of the Act and while coming to the conclusion the Apex Court has examined the vigour of Section 11 which postulates the procedure to be observed by the Food Inspector. Further in case of Northern Mineral Limited versus Union of India and another reported in 2010 (7) SCC 726 while dealing with the statutory right of the accused, to get sample tested and analyzed by the Central Insecticide Laboratory, the Hon'ble Apex Court has considered the shelflife of the produce/article and has held that shelflife of the article is very relevant. The Hon'ble Apex Court has found in that case that valuable right of the accused for his defence is defeated and has conveyed that continuance of criminal prosecution would be nothing but futile exercise which may tantamount to be an abuse of process of Court.

24. The counsel has also relied upon a further decision in case of Gupta Chemicals Private Limited and others versus State of Rajasthan and another reported in 2010 (7) SCC 735 wherein while dealing with the statutory right of the accused under Section 24 of the Insecticide Act 1968 to get the seized sample examining Central Insecticides Laboratory denial thereof or delay thereof was seriously taken into consideration and the Court held that under Section 482 of Page 21 of 45 HC-NIC Page 21 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT the Code of Criminal Procedure powers ought to have been exercised by the High Court. The same is the case that a decision delivered by the Apex Court in case of Medicamen Biotech Limited and another versus Rubina Bose, Drug Inspector reported in 2008 (7) SCC 196 wherein also relying upon the observations made, the counsel submitted that the proceedings on the case on hand are also stayed which can tantamount to be an abuse of process of Court. In another decision unreported decision delivered by this Court in Special Criminal Application No. 539 of 2011 dealing with the issue pertaining to shelf life of an article, the Court has considered the effect of Section 13(2) of the Act in consideration of an issue of shelflife of a product and thereby Court has quashed the criminal complaint and by citing of this decision, the learned counsel for the petitioner has requested the Court to quash the proceedings which are questioned in the present petition. It was also pointed out that in yet another case Pepsico India Holdings Private Limited versus Food Inspector and another reported in 2011 (1) SCC 176, the Hon'ble Apex Court in the background of case found that sample was not sent to Forensic Laboratory in the absence of valid method of analysis being prescribed in the Laboratory since no examination was found, the Court quashed the proceedings and therefore, by citing this decision and taken the Court to the background of the facts of this case, a request is made to allow the petition and quash the criminal proceedings lodged by the complainant. No other submissions are made.

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25. The learned counsel for the respondent has relied upon several decisions to withstand the contentions raised by the petitioner and stated not to exercise inherent jurisdiction contained under Section 482 of Code of Criminal Procedure as also extraordinary jurisdiction under Article 226 of the Constitution of India. The counsel submitted that this is not a case to exercise extraordinary jurisdiction.

26. The learned counsel for respondent has submitted the compilation while relying upon various decisions which are being narrated one by by herein is the first decision which has been relied upon by the counsel in case of Tulsiram versus State of M.P. reported in 1985 SCC 299, wherein while dealing with Sections 11 and 13 of the Prevention of Food Adulteration Act, the Hon'ble Apex Court has examined the effect of Rule 9(A) of the Prevention of Food Adulteration Rule 1955. The Hon'ble Apex Court examined the effect of a word "immediately" contained in Rule 9(A) and has held that this immediately word conveys the sense of continuity rather than urgency and non compliance with said Rule 9(A) is not fatal. It was observed by the Apex Court that what must be done is to forward the report to person from whom sample was taken at the earliest so as to exercise the statutory right under Section 32(2) and then the Court observed that non compliance with Rule 9(A) is not fatal. In another decision in case of Rajendra S/o Ram Ratan & Ors versus State of M.P reported in AIR Page 23 of 45 HC-NIC Page 23 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT 1999 SC 1757 again the said has come up for examination before the Hon'ble Apex Court wherein also similar view is taken and similar view is taken and the Hon'ble Court opined that word "immediately" conveys reasonable despatch and promptitude intending to convey sense of continuity rather than of urgency. The learned counsel yet in another case reported in case of Adhiraj Amar Kanhaiyalal versus State of Maharashtra 2010 (112) BomLR 3366 Nagpur Bench of the Bombay High Court has dealt with the issue related to Section 13(2) of the Act and has held that while considering the factor of sending statutory notice as contemplated by Section 13(2) of the Act the nature of product shall have to be taken into consideration and it cannot be assumed that any prejudice is caused to accused if the articles gets damage after the prescribed period. The said decision has also dealt with the word "best before" as defined under Rule 32(m) and has held that "best before" is that the period during which the product shall remain fully marketable and shall retain in specific qualities for which tacit or express claims have been made.

27. The learned counsel has further relied upon yet another decision of this Court in case of Ajay Modi versus State of Gujarat 2015 (0) AIJELHC 233693 wherein the Hon'ble Court has stated that complaint is not required to be quashed and set aside on the ground that because of delay in filing the complaint, the accused would suffer great prejudice as sample must have become decomposed and/or deteriorated and/or Page 24 of 45 HC-NIC Page 24 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT would have become incapable of being analyzed mere allegation of prejudice would not be sufficient to quash the complaint that too in exercise of powers u/s 482 of the CrPC and therefore, while dealing with the Sections 7, 13(2) as also the Hon'ble Court has refrained from quashing the criminal proceedings. The said decision having been bearing in mind the present proceedings the relevant paragraphs worth to be taken note of. Hence, reproduced hereinafter.

"[5.0] Heard learned advocates appearing on behalf of the respective parties at length.

At the outset it is required to be noted that the present application has been preferred by the applicant herein original accused to quash and set aside the impugned criminal proceedings / criminal complaint for the offence punishable under the PFA Act, in exercise of powers under Section 482 of the CrPC. The impugned criminal proceedings/criminal complaint are requested to be quashed and set aside mainly on the ground that there is an inordinate delay in filing the complaint and therefore, the valuable right of the accused to get the sample tested by the Central Laboratory conferred under Section 13(2) of the PFA Act has been taken away and/or the same has been violated and/or the grave prejudice shall be caused to the applicant as because of the delay and by the passage of time the sample must have been deteriorated and/or decomposed. The impugned complaint is also requested to be quashed and set aside on the ground of limitation i.e. on the ground that the impugned complaint has been lodged/filed after a period of three years. Therefore, the short question which is posed for consideration of this Court is whether on the aforesaid ground the impugned criminal complaint for the offences under the PFA Act is required to be quashed and set aside in exercise of powers under Section 482 of the CrPC?"

[5.1] Now, so far as the first ground on which the impugned complaint is requested to be quashed and set aside i.e. delay in filing the complaint and the prejudice that may be caused to the accused and/or taking away the right of the accused to get the sample tested through Central Laboratory as conferred under Section 13(2) of the PFA Act is Page 25 of 45 HC-NIC Page 25 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT concerned, the submissions seems to be attractive but has no substance. At the outset it is required to be noted that as such no application has been submitted by the accused and/or any request is made by the accused before the learned Magistrate to send the sample to the Central Laboratory. Therefore, as such the accused has not exercised the option which is conferred under Section 13(2) of the PFA Act of getting the sample examined through the Central Laboratory. Therefore, the contention on behalf of the applicant that a valuable right of the applicant to get the sample tested through Central Laboratory has been taken away cannot be accepted.

[5.2] Now, so far as the contention on behalf of the applicant that because of the delay in filing the complaint i.e. in the present case of 11 years, the valuable right of the applicant to get the sample tested through Central Laboratory as conferred under Section 13(2) of the PFA Act has been taken away and/or has been violated and/or a great prejudice would be caused to the applicant, as because of such delay the sample might have become decomposed and/or deteriorated is concerned, the aforesaid are only on presumption and assumption. Unless and until any request is made to send the sample to the Central Laboratory, by exercising the option as conferred under Section 13(2) of the PFA Act and unless and until the sample is sent to the Central Laboratory and thereafter, after analysis it is opined by the Central Laboratory that as such the sample has deteriorated and/or decomposed, on such presumption and assumption that it must have been deteriorated and/or decomposed, the criminal proceedings cannot be quashed in exercise of powers under Section 482 of the CrPC and that too for the offences under the PFA Act. In the case of Ajit Prasad Ramakishan Singh (Supra), the Honble Supreme Court considering its earlier judgment in the case of Sukhmal Gupta (Supra) has specifically observed and held that it was wrong for Courts to decide, without any data, that the sample would decompose and become incapable of analysis and that no useful purpose would be served in sending the sample for analysis to the Director, when there was no evidence that the sample had so deteriorated at the time of service of summons as to be incapable of being analysed. It is further observed that in absence of evidence, that the sample has so deteriorated as to be incapable of analysis, such a presumption would not be justified. Page 26 of 45 HC-NIC Page 26 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT [5.3] Identical question came to be considered by the Andhra Pradesh High Court in the case of M/s. Hyderabad Beverages Private Limited (Supra) and in paras 70 to 73, 75, 76 to 78, the Andhra Pradesh High Court has observed and held as under:

70. In Ajit Prasad Ramakishan Singh (1972 Cri LJ 1026), the Supreme Court, following its earlier judgment in Sukhmal Gupta, held that it was wrong for Courts to decide, without any data, that the sample would decompose and become incapable of analysis and that no useful purpose would be served in sending the sample for analysis to the Director, when there was no evidence that the sample had so deteriorated at the time of service of summons as to be incapable of being analysed. In the absence of evidence, that the sample has so deteriorated as to be incapable of analysis, such a presumption would not be justified.

71. An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food laboratory and not for this Court, in proceedings under Section 482, Cr.P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused.

72. As held by the Apex Court in Ajit Prasad Ramkishan Singh (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal (1984 Cri LJ

15) and T. V. Usman and this Court in G. S. Prasad (2003 Cri LJ (NOC) 231) and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.

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73. As held in T. V. Usman (AIR 1994 SC 1818), there is no time limit prescribed for launching prosecution. It is relevant to note that a time limit is prescribed, under Section 9A of the P.F.A. Act, for sending the second sample for analysis to the Public Analyst, a time limit of 10 days was prescribed under Rule 9(j), prior to its omission with effect from 411977, for supplying a copy of the report of the public analyst, Rule 22 provides that the quantity of food to be sent for analysis must be as prescribed in the table to the rule and Rule 7(3) requires the Public Analyst to submit his report within 45 days. All these statutory provisions were held in Tulsiram (1984 Cri LJ 1731), Dalchand v. Municipal Corporation, Bhopal AIR 1983 SC 303 :

(1983 Cri LJ 448), State of Kerala v. Alassery Mohammed, (1978) 2 SCC 386 : (1978 Cri LJ 925) and T. V. Usman (AIR 1974 SC 1818), to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein time limit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without any thing more, is fatal to the prosecution.

75. Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused.

76. In Dalchand (1983 Cri LJ 448), the Supreme Court held thus :

".......It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be Page 28 of 45 HC-NIC Page 28 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........." (Emphasis supplied)

77. Since the eventual test is one of prejudice, which is to be established, on the facts and circumstances of each case, by way of evidence adduced before the learned Magistrate, it is not for this Court, under Section 482, Cr.P.C. to infer or presume that even in case of delay, say of a few days, beyond the shelf life of the product, and in the absence of reasonable explanation for the delay in furnishing a copy of the report of the Public Analyst, the accused is prejudiced and his right, under Section 13(2) of the P.F.A. Act and Section 16(2) of the Seeds Act, is violated.

78. In exercise of its jurisdiction under Section 482, Cr.P.C. this Court does not take upon itself the task of examining the evidence or to record an independent finding that the delay in furnishing a copy of the public analyst's report has resulted in prejudice to the accused. Whether the delay is insignificant or inordinate, whether the delay is attributable to lapses of the prosecution in making available a copy of the public analyst's report, whether on account of the delay in making the report available, the right of the accused under Section 13(2) of the P.F.A. Act or Section 16(2) of the Seeds Act has been rendered illusory as the sample sent to the Central Laboratory is found unfit for analysis due to decomposition by passage of time or for any other reason attributed to lapses on the part of the prosecution, whether inordinate delay in sending the sample for analysis has, by passage of time, rendered the sample "adulterated" are all matters to be examined by the learned Magistrate, in the facts and circumstances of each case, on the basis of the evidence adduced. Delay, by itself and without anything more, cannot form the basis for the High Court, in exercise of its jurisdiction under Section 482, Cr.P.C. to quash the criminal proceedings."

[5.4] Identical question came to be considered by the learned Single Judge in the recent decision in the case of Pepsi Co. India Holdings Page 29 of 45 HC-NIC Page 29 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT Ltd. thro its Officer Vinay Mathur & Anr. (Supra) and after considering the aforesaid decision of the Andhra Pradesh High Court and after considering other decisions of the Honble Supreme Court as well as other High Courts on the issue, the learned Single Judge refused to quash and set aside the complaint for the offences punishable under the PFA Act which was requested to be quashed and set aside on the ground of delay in filing the complaint and which was requested to be quashed and set aside on the grounds on which the impugned criminal complaint is requested to be quashed and set aside.

[5.5] There cannot be any presumption that the sample must have been deteriorated and/or decomposed and/or would have become incapable of being analyzed. Whether delay, in furnishing the copy of the report of Public Analyst and/or delay in filing the complaint, has resulted in prejudice to the accused and whether the prosecution has furnished a satisfactory explanation for the delay, are all matter of evidence to be examined by the trial Court and not for this Court in proceedings under section 482 of the CrPC. As per the catena of decisions of the Honble Supreme Court as well as this Court, the power under Section 482 of the CrPC are to be exercised sparingly with circumspection and in rarest of rare cases. Such a power is not to be exercised to stifle legitimate prosecution. It is required to be noted that in the present case as such the Public Analyst, Food and Drugs, Vadodara had infact found the percentage of iodine in the sample/salt much less than the prescribed limit under the PFA Act. Therefore, the impugned complaint is not required to be quashed at this stage in exercise of powers under Section 482 of the CrPC solely on assumption and presumption that the sample might/must have been deteriorated and/or decomposed and/or incapable of being analyzed now.

[5.6] Similarly, the impugned complaint is not required to be quashed and set aside on the ground that because of the delay in filing the complaint, the accused would suffer great prejudice as the sample must have become decomposed and/or deteriorated and/or would have become incapable of being analyzed. The prejudice is not required to be pleaded only but actual prejudice if any caused is to be demonstrated and established. As observed hereinabove, mere allegation of prejudice would not be sufficient to quash the complaint that too in exercise of powers under Section 482 of the CrPC. Page 30 of 45 HC-NIC Page 30 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT

28. The learned counsel for the respondent has relied upon one another more decision delivered by this Court in case of Pepsi Co. India Holdings Ltd. and Ors. Versus State of Gujarat and Ors. reported in 2015 (2) GLH 556, the Court had dealt with the issue related to "best before" use. The Court in the said decision has at length examined various aspects and issues raised almost similar which are raised here on case on hand and has considered and observed that mere delay in furnishing the report of public analyst by itself be not a ground that the accused has caused prejudice. Simply because the sample has not been sent to Central Laboratory. The Court has considered the various authorities while dealing with the relevant statutory provision coupled with the Rules pertaining to it and has not entertained the petition and since the observations are worth to be taken into consideration. The same are being reproduced hereinafter.

"22. In cases where the delay on the part of the prosecution had resulted in the sample, sent for analysis to the Central Food Laboratory, being rendered unfit for analysis, it would undoubtedly cause prejudice to the accused and would amount to denial of his valuable right under Section 13(2) of the Act. There could also be other cases where the delay on the part of the prosecution could be found to have caused prejudice. Whether or not delay in furnishing of the copy of the report of the public analyst has caused prejudice to the accused are matters, which can only be decided, on the basis of the evidence, by the trial Court, and not by this Court, in exercise of its inherent powers under Section 482 of the Code or writ jurisdiction under Article 226 of the Constitution.

23 In the present case, the Central Food Laboratory found the sample fit for analysis and after certifying the sample fit for analysis, it found the sample adulterated. Once there is a certificate of the Central Food Laboratory Page 31 of 45 HC-NIC Page 31 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT certifying that the sample was fit for analysis then the burden would shift on the accused to establish by leading cogent evidence that the sample had become unfit and the report of the Central Food Laboratory would have no evidentiary value. Whether a sample has, on expiry of its, "Best Before date or its shelf life, become unfit for analysis on account of its being decomposed, is a matter of evidence and not a matter of inference in the proceedings under Section 482 of the Cr.P.C. It is only when a sample is sent for analysis, can the Central Laboratory on examination certify whether or not the sample has been decomposed rendering it unfit for analysis.

24.. In Charanji Lal v. State of Punjab (1984) 1 SCC 329 : (1984 Cri LJ 15), the Supreme Court held thus : (Para 15 of Cri LJ) "...........Decomposition is not something which always takes place suddenly or immediately. It is a process which in some cases may be slow and in some cases quick. Decomposition cannot be noticed or ascertained by the Court when it inspects the part of the sample under subsection (2 B) of Section 13 to ascertain whether the mark and seal or fastening are intact and the signature or thumb impression, as the case may be, not tampered with, before despatching that part to the Central Food Laboratory. Even with the mark and seal intact, and the signature or thumb impression, as the case may be, not tampered with, the sample might have already decomposed or decomposing might have already commenced. Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.............. (Emphasis supplied)"

25. In T. V. Usman v. Food Inspector, Tellicherry Municipality AIR 1994 SC 1818 samples of six packets of pan supari were sent for analysis to the Public Analyst, who opined that the sample contained Sacharin, an artificial sweetener, and was thus adulterated. Both the vendor and the manufacturer were acquitted by the Magistrate, on the ground that Rule 7(3) was violated inasmuch as the Local (Health) Authority had received the Form III report beyond 45 days. The learned Magistrate also held that Rule 9(a) was not properly complied with. On appeal the Kerala High Court, while confirming the acquittal of the manufacturer, convicted the vendor. The Kerala High Court held that Rule 7(3) was not mandatory and noncompliance thereof needed to be considered only if prejudice was established. Following the judgment of the Supreme Court in Tulsiram (1984 Cri LJ 1731), the Kerala High Court held that Rule 9(a) was also not mandatory, but was directory. On appeal, the Supreme Court held thus : (At Pp. 182122, para 14 of AIR) "In Rule 7(3) no doubt the expression "shall" is used but it must be borne in mind that the Rule deals with stages prior to launching the prosecution and it is also clear that by the date of receipt of the report of the Public Analyst the case is not yet instituted in the Court and it is only on the basis of this report of the Public Analyst that the concerned authority has to take a decision whether to institute a prosecution or not.There is no Page 32 of 45 HC-NIC Page 32 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT time limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time limit prescribed under the Rules. He must in all cases try to comply with the time limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and on that basis to hold that even prosecution cannot be launched. May be, in a given case, if there is inordinate delay, the Court may not attach any value to the report but merely because the time limit is prescribed, it cannot be said that even a slight delay would render the report void or inadmissible in law. In this context it must be noted that Rule 7(3) is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, subsec. (2) of S. 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must be shown that the delay has led to the denial of right conferred under Section 13 (2) and that depends on the facts of each case and violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out."

(Emphasis supplied)."

26. I may quote a very exhaustive decision rendered by the learned Single Judge of the Andhra Pradesh High Court on the subject in the case of M/s Hyderabad Beverages Private Limited etc. Vs. State of A.P. 2006 Criminal Law Journal 3988.

70. In Ajit Prasad Ramakishan Singh (1972 Cri LJ 1026), the Supreme Court, following its earlier judgment in Sukhmal Gupta, held that it was wrong for Courts to decide, without any data, that the sample would decompose and become incapable of analysis and that no useful purpose would be served in sending the sample for analysis to the Director, when there was no evidence that the sample had so deteriorated at the time of service of summons as to be incapable of being analysed. In the absence of evidence, that the sample has so deteriorated as to be incapable of analysis, such a presumption would not be justified. Page 33 of 45 HC-NIC Page 33 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT

71. An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food laboratory and not for this Court, in proceedings under Section 482, Cr.P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused.

72. As held by the Apex Court in Ajit Prasad Ramkishan Singh (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal (1984 Cri LJ 15) and T. V. Usman and this Court in G. S. Prasad (2003 Cri LJ (NOC) 231) and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.

73 As held in T. V. Usman (AIR 1994 SC 1818), there is no time limit prescribed for launching prosecution. It is relevant to note that a time limit is prescribed, under Section 9A of the P.F.A. Act, for sending the second sample for analysis to the Public Analyst, a time limit of 10 days was prescribed under Rule 9(j), prior to its omission with effect from 41 1977, for supplying a copy of the report of the public analyst, Rule 22 provides that the quantity of food to be sent for analysis must be as prescribed in the table to the rule and Rule 7(3) requires the Public Analyst to submit his report within 45 days. All these statutory provisions were held in Tulsiram (1984 Cri LJ 1731), Dalchand v. Municipal Corporation, Bhopal AIR 1983 SC 303 : (1983 Cri LJ 448), State of Kerala v. Alassery Mohammed, (1978) 2 SCC 386 : (1978 Cri LJ 925) and T. V. Usman (AIR 1974 SC 1818), to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without any thing more, is fatal to the prosecution.

74. On what basis can Courts presume that expiry of the "best before"

date or expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis? The shelf life of products vary from one to the other. While in certain cases the shelf life may be as small as one week, in certain others the shelf life could be as long as a few years. Similarly, the delay in making available a copy of the report of the public analyst may also vary. The delay could range from a period of a few days, after the expiry of the shelf life or the "Best Before"

date, to even a few years. Can the same yardstick be applied in all cases to Page 34 of 45 HC-NIC Page 34 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT hold that the delay in making available a copy of the public analyst report, beyond the shelf life of the product, has caused prejudice to the accused and denied him his valuable right under Section 13(2)? Even in cases where the report of the public analyst is made available within time, the accused may not exercise his right to have the sample sent for analysis to the Central Laboratory. In such cases, the report of the public analyst is required to be accepted. Can a different yardstick be applied to cases, where despite a copy of the report of the public analyst being furnished immediately after the shelf life of the product has expired and the accused does not exercise his right to have the sample sent for analysis to the Central Laboratory, to hold that delay by itself has caused prejudice to the accused? Answers, thereto, have necessarily to be in the negative.

76. In Dalchand (1983 Cri LJ 448), the Supreme Court held thus : ".......It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit.The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........." (Emphasis supplied)

78. In exercise of its jurisdiction under Section 482, Cr.P.C. this Court does not take upon itself the task of examining the evidence or to record an independent finding that the delay in furnishing a copy of the public analyst's report has resulted in prejudice to the accused. Whether the delay is insignificant or inordinate, whether the delay is attributable to lapses of the prosecution in making available a copy of the public analyst's report, whether on account of the delay in making the report available, the right of the accused under Section 13(2) of the P.F.A. Act or Section 16(2) of Page 35 of 45 HC-NIC Page 35 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT the Seeds Act has been rendered illusory as the sample sent to the Central Laboratory is found unfit for analysis due to decomposition by passage of time or for any other reason attributed to lapses on the part of the prosecution, whether inordinate delay in sending the sample for analysis has, by passage of time, rendered the sample "adulterated" are all matters to be examined by the learned Magistrate, in the facts and circumstances of each case, on the basis of the evidence adduced. Delay, by itself and without anything more, cannot form the basis for the High Court, in exercise of its jurisdiction under Section 482, Cr.P.C. to quash the criminal proceedings."

29. Almost similar view is also reiterated by this Court in yet in another decision in case of Hotel Savera versus State of Gujarat - 2015 ()) AIJE:LHC233167, wherein also it has been held that expiry of shelflife of an article would not automatically render the sample unfit for analysis and therefore, merely because the expiry date of the sample has gone by itself, it cannot be said that any prejudice is caused to the accused. Rule 32 has also been relied upon by the Court. There are several decisions which have been relied upon by the counsel for the respondent reported in case of State of Haryana versus Bhajanlal & others 1992 (suppl) (1) SCC 335, on the issue of exercise of extraordinary jurisdiction and has contended that reliability of allegations are not to eb examined in exercise of extraordinary jurisdiction in nature. It was also further relied upon by a decision reported in case of State of Haryana versus Brij Lal Mittal and others - AIR 1998 SC 2327 as well as the decision delivered by Delhi High Court in case of Neerja Bhargava versus State of NCT Delhi on the issue of exercise of extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure delivered on 28.09.2015. and then contended not to exercise Page 36 of 45 HC-NIC Page 36 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT the extraordinary jurisdiction in favour of the petitioner. The learned counsel has strongly contended that this is not a fit case to exercise extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure.

30. Having heard learned counsel appearing on behalf of the respective parties and having gone through the record in detail, few facts are emerging from the record.

[a] The original complaint is filed in the year 2002 and all through out the petitioners have remained silent on their statutory rights which are now being insisted upon, the present petition has been filed on 12.12.2012 for seeking quashment of the complaint which is immediately after the disposal of the earlier petition at the instance of another accused persons dated 02.12.2012 and all through out it appears that the petitioners have evaded the main case in trial court.

[b] It is also appearing from para 5 of the said decision that there is a specific direction given in the said order dated 02.12.2012 to proceed further with the case at the earliest on merits by the concerned learned Magistrate in accordance with law.

[c] It is also emerged from the record that some of the issues Page 37 of 45 HC-NIC Page 37 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT which are raised of prejudice coupled with technical defence are appearing to be part of defence which can be gone into by the concerned court at an appropriate stage.

[d] It is also appeared from the record that the complaint has been filed after getting specific sanction to prosecute from the competent authority and filed along with public analyst report dated 30.09.2002.

[e] it is also appearing from the record that the complaint in question has not been stayed in so far as present petitioners are concerned and therefore, it appears that all through out during passage of time the petitioners have evaded the concerned Court to proceed further with the trial.

[f] It is also emerging from the record that public analyst report has reflected a fungus growth and this report was very much attached to the complaint and therefore on account of that circumstance that fungus growth was visible is a matter of trial to be examined in the context of provisions of the Act.

[g] It is also emerging from the record that the notice has been given not by the petitioner dated 06.08.2002 but it has been given by the partner of Digjam Retail Show Room Shoppers Paradise, C.G. Road, Ahmedabad and therefore, all through out the Page 38 of 45 HC-NIC Page 38 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT petitioners have shielded themselves from being prosecuted and have waited for an opportunity to thwart the case against them which has been visualized by filing the petition after disposal of the earlier petition. This conduct is also worth to be taken note of while exercising inherent jurisdiction.

31. Prima facie it appears that ample opportunity was available to the petitioners through out the entire period to agitate the issue which is now being agitated about violation of statutory provisions contained under Section 13(2) of the Act. All these issues could have been agitated at relevant point of time. The conduct of the petitioners as stated above is just to drag on the prosecution and therefore, considering this overall set of circumstance and in view of decision delivered by various Courts, this Court is of the opinion that this is not a fit case to exercise extraordinary inherent jurisdiction at this stage of the proceedings. The delay which has been tried to be projected is on the contrary at the instance of the petitioners and therefore, this aspect is allowed to be agitated by the petitioners at an appropriate stage of the trial of the case. The Court is of the opinion that the observations and the proposition of law propounded by the aforesaid decision reported in 2015 by coordinate bench of this Court, there appears to be no special circumstance from deviating and therefore, no reason to interfere with the complaint in question.

Page 39 of 45 HC-NIC Page 39 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT 32 In view of the above position coupled with the law laid down on the issue more particularly by Coordinate bench of this Court, Court is of the opinion not to exercise extraordinary jurisdiction in favour of the petitioners. It is found that there are several disputed questions of facts which are required to be gone into an appropriate stage and in exercise of inherent jurisdiction, the court is not suppose to undertake a mini trial or make any roving inquiry and therefore, extraordinary jurisdiction is not permitting this Court to exercise in the background of these peculiar facts of case. The defence has been projected by the petitioners can well be examined during the course of trial and therefore, in opinion of the Court, this is not a fit case to exercise extraordinary jurisdiction.

33. While coming to this conclusion, some of the decisions have been considered by the Court and the relevant extract of the proposition contained in these decisions are narrated very briefly hereinafter. 33.1 In case of Taramani Parakh versus State of Madhya Pradesh and others reported in 2015 (11) SCC 260, wherein paragraphs 10 reproduced as under:

"10. The law relating to quashing is well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case the court does not go into reliability or otherwise of the version or the counterversion. In matrimonial cases, the courts have to be cautious when omnibus allegations are Page 40 of 45 HC-NIC Page 40 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT made particularly against relatives who are not generally concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue."

33.2 In case of HMT Watches Limited versus M.A. Abida and another reported in 2015 (11) SCC 776, paragraphs 11, 12 and 13 reproduced as under:

"11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd., this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure:

( SCC pp. 68587, paras 17 & 22) "17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well known legal principles involved in the matter.

22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of Page 41 of 45 HC-NIC Page 41 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice, but, the proceedings which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable."

12. In Rallis India ltd. v. Poduru Vidya Bhushan, this Court expressed its views on this point as under: ( SCC p. 93, para 12) "12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm."

13. In view of the law laid down by this Court as above, in the present case, the High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial Court. 33.3 In case of N. Soundaram versus P.L. Pounraj And another reported in 2014 (1) SCC 616, paragraph 13 reproduced as under:

"13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly Page 42 of 45 HC-NIC Page 42 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [ See State of Haryana v. Bhajan Lal]. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [ See MCD V. Ram Kishan Rohtagi.]. An investigation should not be shut out at the threshold if the allegations have some substance. [ See Vinod Raghuvanshi V. Ajay Arora].

33.4 In Case of Teeja Devi Alias Triza Devi versus State of Rajasthan and others reported in 2014 (15) SCC 221, paragraphs 4, 5 and 9 reproduced as under:

"4. In view of the nature of proposed order this Court has purposely avoided to go into the factual details and controversy between the parties. This would prevent prejudice to the appellant as well as to the accused persons in future because after hearing the parties we are of the firm view that the order of the High Court is not in accordance with law and in the facts of the case no interference should have been made with the investigation by the police by quashing the FIR.

5. It has been rightly submitted by the learned counsel for the appellant that ordinarily power under Section 482 CrPC should not be used to quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognizable offence in accordance with the provisions of CrPC. As per law settled by a catena of judgements, if the allegations made in the FIR prima facie disclose a cognizable offence, interference with Page 43 of 45 HC-NIC Page 43 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT the investigation is not proper and it can be done only in the rarest of rare cases where the court is satisfied that the prosecution is malicious and vexatious.

9. We have no hesitation in holding that in the facts of the case, the High Court was not justified in interfering with the police investigation and quashing the FIR. This is not at all a rare case. Without a thorough investigation,it is not possible or proper to hold whether the allegations made by the complainant are true or not. Hence the investigation should have been allowed to continue so that on filing of the report under Section 173 CrPC the affected party could pursue its remedy against the report in accordance with law. Keeping in view the fact that the criminal case was at the stage of investigation by the police the High Court was not justified inholding that the investigation of the impugned FIR is totally unwarranted and that the same would amount to gross abuse of the process of the court. "

34. From the above discussion and analysis of the background of fact, the exercise of extraordinary inherent jurisdiction is not possible to be exercised. Hence, both these petitions are dismissed hereby and interim reliefs which have been granted stand vacated. It is expected that in view of the earlier direction issued by this Court in cognate petition filed at the instance of other accused persons who were discharged the main case which is pending before the learned Trial Court be expeditiously dealt with and it is needless to say that trial Court will examine all the defence of petitioners in accordance with law, after granting appropriate opportunity.

35. With these observations both petitions are disposed of. Rule is discharged.

Page 44 of 45 HC-NIC Page 44 of 45 Created On Sat Sep 24 02:42:12 IST 2016 R/SCR.A/3508/2012 CAV JUDGMENT (A.J. SHASTRI, J.) niru* Page 45 of 45 HC-NIC Page 45 of 45 Created On Sat Sep 24 02:42:12 IST 2016

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