Madras High Court
M. Chinnachamy And 3 Ors vs R. Satyanarayanan on 12 April, 2001
Equivalent citations: 2001CRILJ4443
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. Challenging the proceedings under Section 7(1), 16(1)(a)(i) read with Section 2(1a)(a) and (m) and Rule 55 of the Prevention of Food Adulteration Act, the petitioners A. 1 to A.4 have filed the above petition under Section 482, Cr.P.C., seeking to quash the proceedings in C.C.No. 25 of 2000 on the file of the learned Judicial Magistrate, Attur, Salem District.
2. The petitioners 1 and 2 are the partners of M/s. Live-O Company at Salem, which manufactures carbonated, soda and cool drinks. The third petitioner is the wholesale dealer of the said cool drinks. The fourth petitioner is the owner of the shop No.2 at Attur town bus stand.
3. On 28.8.1999, the respondent/Food Inspector inspected the shop belonging to the fourth petitioner and took sample of the Live-O cool drinks. After purchasing six bottles from his as sample, he prepared the mahazar attested by the witness and signed by the fourth petitioner. Thereafter, the Food Inspector/respondent herein requested the Local Health Authority to send the sample for analysis by the public analyst on the same day. Immediately, the sample was sent for the analysis.
4. On 22.9.1998 the public analyst analysed the sample and found that it was adulterated. Accordingly, the public analyst sent the report to the Local Health Authority. Thereafter; the Food Inspector obtained a written consent from the higher authority and filed a complaint against the petitioners for the offences referred to above.
5. The Food Inspector thereafter intimated about the opinion of the public analyst and sent summons to the fourth petitioner. On receipt of the Court summons, all the petitioners have filed this petition, challenging the validity of the prosecution launched by the respondent / Complainant.
6. The only ground urged is that the mandatory provisions under Section 13(2) of the Prevention of Food Adulteration Act had not been complied with in strict sense and as such, the proceedings are liable to be quashed.
7. The learned counsel for the petitioners would cite various judgments rendered by this Court, other Courts as well as the Supreme Court.
8. On this point, I have heard the learned counsel for the petitioners as well as the learned Government Advocate. I have summoned the trial court records also. On going through the records, it is evident that the sample was taken on 28.8.1998. The public analyst, who in turn received it on 31.8.1998. The public analyst analysed the same and gave opinion that the sample was adulterated, as the sample contained Benzoic acid (Class-II Preservative) to an extent of 180 PPM., which is higher than the prescribed limit viz., 120 PPM., which is higher than the prescribed limit viz., 120 PPM. for sweetened ready to serve beverages. The analyst's report was prepared on 22.9.1998 and the same had been sent on the same day to the Local Health Authority. In the said report, the public analyst referred as follows:-
"The procedure prescribed by Section 13(2) may be implemented immediately. Prosecution may be initialed and a copy of the report sent to the vendor with a direction that he may intimate the court concerned within 10 days of receipt of the report "whether he/she/they would like to have another portion of the sample to be analysed and certified by the Central Food Laboratory."
This letter with opinion was received by the Local Health Authority on 24.9.1998.
9. Thereafter, after nearly nine months, the Food Inspector obtained a written consent from the Joint Director of Public Health and Preventive Medicine (PFA) to launch prosecution against the petitioners on 24.6.1999 .
10. In the written consent, it is stated as follows:-
"The Food Inspector, Attur Municipality is instructed to launch prosecution within 7 working days from the date of receipt of this reference and inform the fact to this Directorate."
11. Thereafter, the complaint was filed. The complaint was instituted, as seen in the seal affixed on the original, on 20.1.2000. In the meantime, the Food Inspector took steps to inform the other accused viz., A.1 to A.3 about the fact of having taken sample from A.4. In other words, no intimation regarding the opinion of the public analyst was sent to any other accused.
12. As stated above, in the public analyst's report dated 22.9.1998, it was specifically instructed that prosecution must be initiated immediately against the petitioners by the complainant and copy of the report along with the intimation may be sent to the vendor and he may approach the Court concerned within 10 days to have another portion of the sample to be analysed by the Central Food Laboratory. Though this letter was dated 22.9.1998 and the same was received by the complainant's office on 24.9.1998, there were no steps taken to file the complaint immediately and to send the copy of the public analyst's report to the petitioners.
13. On the other hand, a written consent was obtained on 24.6.1999 after nearly about nine months. Even in the written consent given on 24.6.1999, the complainant was specifically instructed to launch prosecution within 7 working days from the date of the receipt of the report. This instruction also has not been complied with by the complainant.
14. Ultimately the complaint was instituted only on 20.1.2000. The records would show that the case was taken on file on 7.2.2000 and according to the petitioners, as mentioned in the petition, the fourth petitioner received summons along with the opinion of the public analyst only on 10.2.2000.
15. From what is stated above, two things are clear:
Despite the instruction of the public analyst, there is no launching of prosecution immediately by the complainant. There is no reason as to why the complainant took nine months time to obtain written consent from the authority concerned.
Even though by the order dated 24.6.1999, the higher authority directed the complainant to launch prosecution within 7 working days, the complainant thought it fit to file the complaint only on 20.1.2000 after about six months.
16. Thus, it is clear that the valuable right conferred on the accused persons to have the other portion of the sample analysed by the Central Food Laboratory is lost.
17. Moreover, Section 13(2) would provide that on receipt of the report of the result of public analyst, the Local Health Authority shall, after the institution of prosecution, forward the copy of the report of the public analyst tossed the vendor and other persons concerned and to inform such persons that they may make an application to the Court within a period of 10 days from the date of receipt of the copy of the report to get the other portion of the sample of article analysed by the Central Food Laboratory.
18. Similarly, Rule 9-A would envisage that the Local Health Authority shall after the institution of prosecution, within a period of 10 days, forward a copy of the public analyst's report to the persons concerned.
19. Thus, a reading of Sections 13(2) and 9A of the Act would make it clear that within 10 days from the institution of the proceedings, the complainant's office shall send the copy of the report of the public analyst to the accused persons to enable them to approach the Court to have the second portion of the sample analysed by the Central Food Laboratory.
20. In this case, though the public analyst's report was received by the complainant's office on 24.9.1998 and written consent was obtained on 24.6.1999, the complaint was launched only on 20.1.2000. In the same way, even though thee complaint was instituted on 20.1.2000, intimation was sent to the fourth petitioner only on 10.2.2000.
21. As seen in the several provisions contained in the Act, there are specific period prescribed for each stage. The reason behind is that the sample must be analysed either by the public analyst sent by the Local Health Authority or by the Central Food Laboratory sent by the Court at the instance of the accused in a quickest possible time.
22. When a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner, so that the right conferred on the accused will not be denied to him. The right is a valuable one, because the certificate of the Central Food Laboratory supersedes the report of the public analyst. In a case, where there is a denial of the right on account of the deliberate conduct of the prosecution i.e. delay in prosecution, as a result of which the sample is highly decomposed and could not be analysed, the vendor, in his trial, will be so seriously prejudiced.
23. The above principles have been laid down by the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram, 1967 Crl.LJ. 939 and State by Food Inspector v. Arumugam, 1990 L.W. (Crl.) 18. On a similar ground, the proceedings have been quashed by the Allahabad High Court in S.P. Agarwal v. State of U.P. 1998 Crl. L.J. 643 and the Punjab and Haryana High Court in R.P. Patel v. State of Punjab, 1998 Crl.L.J. 703.
24. In view of the long delay in launching the prosecution in the present case, which resulted in the prejudice to the accused, who have lost the right of having the sample analysed, especially when the sample happens to be the beverage viz., cool drink, the proceedings in the present case are liable to be quashed. Even though, initially I though of remanding the matter, directing the trial Court, on the application filed by the petitioners, to send the other bottle for second analysis, in view of the long lapse of time, no purpose will be achieved, since the life time of the beverage in question would be only six months or so.
25. Under those circumstances, allowing the abovesaid proceedings would be tantamount to abuse of process of law and as such, the above proceedings are liable to be quashed and accordingly quashed. The petition is allowed. Consequently, connected Crl.M.P.s. are closed.