Gujarat High Court
Nestle vs State on 22 October, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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CR.MA/10732/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10732 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
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 ?
=========================================================
NESTLE
INDIA LIMITED, THRO' R K RAJPUT, MANAGER (SALES) & 1 -
Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MS
MEGHA JANI for
Applicant(s) : 1 - 2.
MR JK SHAH, APP for Respondent(s) : 1,
MR
NALIN K THAKKER for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 22/10/2010
ORAL
JUDGMENT
Rule.
Learned APP Shri Shah waives service of rule on behalf of respondent No.1 and learned advocate Shri Nalin Thakker waives service of rule on behalf of respondent No.2.
Petitioners are the original accused. They seek quashing of complaint Annexure A bearing Criminal Case No.1948 of 2010 pending before the Chief Judicial Magistrate, Kutch-Bhuj. The complaint pertains to offence punishable under section 16 of the Prevention of Food Adulteration Act for breaches of the provisions contained in section 7(v) and other provisions of the said Act and the Rules made thereunder.
The petitioners have pressed the petition only on one ground that by virtue of afflux of time, the petitioners were denied their valuable right to challenge the Public Analyst's report and seek further report form the Central Laboratory in terms of the provisions contained in the Prevention of Food Adulteration Act.
To appreciate the rival contentions, certain dates may be noted. The sample of Maggie Tomato Ketchup for which the said case has been lodged was collected on 9th March 2006. The same was sent for Public Analyst's report which was given on 28th April 2006. The report was received by the Departmental Agency on 9th June 2006. In December 2006, the shelf life of the food item expired, but sanction for prosecution was granted on 21st July 2010 and actual complaint was filed on 22nd July 2010. It is the case of the petitioners that only thereafter the petitioners had access to the Public Analyst's Report. To challenge the findings thereof, the petitioners could request for a further report from the Central Laboratory in terms of sub-section (2) of section 13 of the Act. However, since by then the shelf life of the food item had expired nearly four years back, no meaningful purpose will be served in getting the second report. Thus the petitioners were denied a statutory right and valuable protection.
Reliance was placed on a decision of the Apex Court in the case of Gupta Chemicals (P) Ltd. v. State of Rajasthan (2010) 7 SCC 735 wherein the Apex Court held and observed that when valuable statutory right of the accused to get the sample of insecticide examined in Central Insecticide Laboratory was denied due to inaction and delay by Insecticide Inspector, the proceedings should have been quashed. It is pointed out that the said judgment was followed in a subsequent decision of the Apex Court in the case of Northern Mineral Ltd v. Union of India, (2010) 7 SCC 726 wherein also, the Apex Court held and observed that mere notification by the accused of intention to adduce evidence in contravention of the report is enough. The Apex Court also desired that the authorities entrusted with the implementation of the provisions of the Insecticide Act should act with promptitude and adhere to time schedule so that innocent persons are not prosecuted and real culprits not let off.
On the other hand, learned counsel Shri Nalin Thakker appearing for respondent No.2 contended that the petitioners never applied for sending sample for laboratory tests by the Central Laboratory as was required under sub-section (2) of section 13 of the Prevention of Food Adulteration Act. He, therefore, submitted that no case for quashing is made out. He relied on the following decisions.
In the case of State v. H.R.Momin, (2000) 1 GLR 572 wherein the learned Single Judge observed in para 6.1 as under:
"6.1.
Looking to the report of the Central Food Laboratory, it is clear that the Central Food Laboratory has not opined that it was not possible to analyse the sample on account of decomposition or any other reason but on the contrary, it has specifically opined that the sample was fit for analysis and after analysing the sample, it has opined that the sample is adulterated, and, therefore, the report submitted by the Central Food Laboratory is to be accepted. Though, there is delay in prosecution, the same has not adversely affected the accused, and, therefore, on the ground that there was delay, the accused is not entitled to get an order of acquittal."
In the present case however, facts are different.
In the case of Prabhu v. State of Rajasthan, 1994 AIR SCW 2649 wherein the Apex Court observed that the accused did not avail of the opportunity to make application to Court for sending the sample to the Laboratory for analysis as provided under section 13(2). In that view, the Apex Court observed that it cannot be stated that the accused suffered any prejudice on account of delay.
In the case of Babulal v. State of Gujarat, AIR 1971 SC 1277 wherein the Apex Court observed that the defence that the accused was deprived of his right under section 13(2) is not available when the accused has not filed an application during the trial and there is no evidence to show that no preservative was added to the sample.
In the case of Ramesh Chand v. State of Haryana, 2005 Cri.L.J. 1569, wherein the learned Single Judge of the Punjab and Haryana High Court observed that inspite of opportunity when accused did not file application under section 13(2), no prejudice can be stated to have been caused to the accused on account of supply of report prior to the institution of the complaint.
To my mind, the case of the petitioners is covered by the the first mentioned two judgments of the Apex Court in the cases of Gupta Chemicals (P) Ltd. (supra) and Northern Minerals Ltd (supra). As already noted, facts are not in dispute. Nearly after four years from the date of collection of sample, the complaint was lodged along with which report of the Laboratory was made available. Even if the petitioners wish to dispute the contents thereof and seek further report from the Central Laboratory in terms of sub-section (2) of section 13, the same would be a futile exercise since for a perishable item such as tomato ketchup after four years, there would be deterioration. It was only along with the complaint the analysis report was made available, before which the petitioners had no opportunity to raise any objection with respect to such findings. The first opportunity therefore arose when the complaint was lodged in July 2010 along the the report of the analysis.
Therefore, following the ratio laid down by the Apex Court in the cases of Gupta Chemicals (P) Ltd. (supra) and Northern Minerals Ltd (supra), Criminal Case No.1948 of 2010 pending before the Chief Judicial Magistrate, Kutch-Bhuj qua the present petitioners is quashed. Rule is made absolute accordingly.
(Akil Kureshi, J.) (vjn) Top