Gujarat High Court
Marico Ltd & vs State Of Gujarat & on 8 October, 2013
Author: Harsha Devani
Bench: Harsha Devani
MARICO LTDV/SSTATE OF GUJARAT R/CR.MA/584/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 584 of 2013 ================================================================ MARICO LTD & 1....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MS MEGHA JANI, ADVOCATE for the Applicant(s) No. 1 - 2 MR HIMANSHU PATEL, ADDL. PUBLIC PROSECUTOR for the Respondents ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 08/10/2013 ORAL ORDER
Rule.
Mr. Himanshu Patel, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondents.
Having regard to the facts of the case and with the consent of the learned counsel for the respective parties, the matter is taken up for final hearing today.
By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ), the applicants seek quashing of Criminal Case No.1132 of 2008 pending in the Court of the learned Chief Judicial Magistrate, at Vyara, District Tapi.
The facts of the case stated briefly are that the second respondent lodged the above referred complaint in the Court of the learned Judicial Magistrate First Class, Vyara alleging breach of the provisions of sections 2(ia)(a) and 2(ia)(m) read with section 7(1), (5) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ) and the rules framed thereunder, which constitute an offence punishable under section 16 of the said Act.
The allegations made in the complaint are to the effect that the second respondent inspected the premises of one Maheshkumar Ishwarlal Sharma on 09.05.2007 and collected a sample of oil bearing the label: Saffola Gold Blended Vegetable Oil one litre pouch (Agmark) Packed by Marico Limited, E-10, MIDC Area, Ajanta Road, Jalgaon (425003). Lot No. jc 398, Pkg 21/03/07. This blended edible veg. Oil contained an admixture of Ref. Rice brand oil 70% by wt & Ref. Kardi oil 30% by wt. contains permitted antioxidants & anti foaming agents vit E 250 PPM. Free from Argemone oil, best before 6 months from packaging, vegetarian symbol, serial No. WR/VO/09/06/C. MRP Rs.97.00 . The second respondent took a sample of the food item in question in accordance with the procedure laid down under the provisions of the Act and the rules framed thereunder and sent the same for analysis to the Public Analyst. The Public Analyst by a report dated 22.06.2007, stated that the sample of Saffola Gold Blended Vegetable Oil one litre pouch (Agmark) , does not conform to the standards and provisions of the Food Adulteration Rules, 1955 and the PFA Act, 1954. Thereafter, the second respondent sought necessary sanction and lodged the complaint on 25.06.2008.
Ms. Megha Jani, learned advocate for the applicants invited the attention of the Court to the complaint lodged by the second respondent, to submit that the packaging date of the sample of Saffola Gold Blended Vegetable Oil was 21.03.2007 and the Best before date of the sample was six months from the date of packaging. It was submitted that as is evident from the averments made in the complaint as well as the contents of the Public Analyst s Report, it is an undisputed position that the Best before date of the sample of food article was six months from 21.03.2007 and as such the shelf life of the food article expired on 20th September, 2007, whereas the complaint in question came to be lodged on 25.06.2008. The applicants came to know about the filing of the complaint after service of the notice dated 27.06.2008 issued under section 13(2) of the Act. It was submitted that by the time the applicants received the notice, the Best before date of the sample had elapsed and a period of nine months had elapsed from the expiry of the shelf life of the sample in question. Under the circumstances, the applicants have been deprived of their valuable right to get the sample of food article analyzed by the Central Food Laboratory under section 13(2) of the Act, which vitiates the entire proceedings. In support of her submissions, the learned counsel placed reliance on the decision of this Court in the case of Hindustan Unilever Ltd. v. State of Gujarat and another, 2012 (2) FAC 93, wherein the Court after considering various decisions of the Supreme Court in this regard, held that where the complaint had been lodged and consequently, the copy of the report of the Public Analyst had been supplied to the accused after the best before date stated in the label of the sample of food article had expired, the accused had been deprived of his valuable right under sub-section (2) of section 13 of the Act, of getting the sample analyzed by the Director, Central Food Laboratory and as such, the continuance of the criminal prosecution against the accused, would be futile and an abuse of the process of court. It was submitted that the present case would be squarely covered by the above decision and as such, the complaint is required to be quashed.
On the other hand, Mr. Himanshu Patel, learned Additional Public Prosecutor opposed the application by submitting that merely because the shelf life of the sample in question has expired, does not mean that the sample is not fit for use and as such, the contention that the applicants have been deprived of their valuable right under sub-section (2) of section 13 of the Act, is misconceived and does not merit acceptance.
From the facts noted hereinabove, it is apparent that even according to the complainant, the sample in question was taken from a Saffola Gold Blended Vegetable Oil one litre pouch bearing a label which indicated the date of packaging to be 21.03.2007, and the best before date was six months from the date of packaging. The report of the Public Analyst in this case is dated 22.06.2007, whereas the complaint in question came to be lodged much later on 25.06.2008. When the best before date of the food item in question was six months from the date of manufacture, namely, six months from 21.03.2007, the shelf life of the same would expire on or about 21.09.2007. Thus, when the report was already received on 22.06.2007, the second respondent ought to have acted promptly and ought to have lodged the complaint at the earliest instead of waiting for a period of one year to elapse before lodging the complaint. By doing so, the second respondent has deprived the applicants of valuable right under sub-section (2) of section 13 of the Act of getting the sample of food article analysed by the Central Food Laboratory, which vitiates the entire proceedings. One fails to understand as to why when it is a settled legal position that the sample is required to be re-tested before the shelf life expires, the second respondent has waited for a period of one year from the date of receipt of the report of the Public Analyst before lodging the complaint in question. Had the second respondent acted promptly, the applicants would not have been deprived of the benefit of sub-section (2) of section 13 of the Act and could have got the sample analysed by the Central Food Laboratory. However, on account of the failure on the part of the second respondent, the applicants have been deprived of such valuable right. It is settled legal position as held by the Supreme Court in the decisions which have been referred to by this court in the above decision in the case of Hindustan Unilever Ltd. v. State of Gujarat and another (supra) that if the complaint is lodged after the shelf life of the food article in question has expired, the accused are deprived of their valuable right under sub-section (2) of section 13 of the Act, which would vitiate the entire proceedings. In the facts of the present case even if the applicants, after the complaint was lodged and notice under section 13 of the Act was received by them, had sought to get the sample of the food article in question tested by the Central Food Laboratory, it would be an exercise in futility since the shelf life of the sample had since long expired. Therefore, the applicants having been deprived of their valuable right under sub-section (2) of section 13 of the Act, the entire proceedings stand vitiated and as such, the complaint in question is required to be quashed.
For the foregoing reasons, the application succeeds and is, accordingly, allowed. Criminal Case No.1132 of 2008 pending in the Court of the learned Chief Judicial Magistrate, at Vyara, District Tapi, is hereby quashed qua the applicants herein. Rule is made absolute accordingly.
(HARSHA DEVANI, J.) parmar* Page 6 of 6