Chattisgarh High Court
M/S Cargill India Private Limited vs State Of Chhattisgarh on 1 November, 2021
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 24.08.2021
Order Delivered on 01.11.2021
Cr.M.P. No. 958 of 2017
M/s Cargil India Private Limited. Having its registered office at Y-65,
Ground Floor, Huaz Khas, New Delhi -110016
&
Corporate office at 14th Floor, Building 9A DLF Cyber City, Phase-III,
Gurgaon-122002 (Haryana) Through its Authorized Representative Mr.
Anurag Jadeja, S/o Shri M.S. Jadeja, Qr. No.162, Janta Colony,
Gudhyari, Raipur (C.G.)
---- Petitioners
Versus
1. State of Chhattisgarh, Through the Secretary, Department of Food
& Civil Supplies D.K.S. Bhawan, Raipur, (Chhattisgarh)
2. R.S. Chourasia, Food Inspector, Food & Drug Administration,
District- Korba, (Chhattisgarh)
---- Respondents
Cr.M.P. No. 1267 of 2017
Hardeep Singh, S/o Sh. Ajit Singh, R/o 5, Dharam Marg, Chanakyapuri, New Delhi-110021
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, Department of Food & Civil Supplies, D.K.S. Bhawan (Raipur) Chhattisgarh.
2. R.S. Chourasia, Food Inspector, Food & Drug Administration, District Korba, (Chhattisgarh)
---- Respondents For Petitioners : Mr. Rajesh Batra, Advocate in Cr.M.P. No. 958 of 2017 and Mr.Abhishek Sinha, Senior Advocate assisted by Mr. D.L. Dewangan, Advocate in Cr.M.P. No. 1267 of 2017.
For Respondents/State : Mr. Devendra Pratap Singh, Dy. Advocate General.
2Hon'ble Shri Justice Narendra Kumar Vyas Order [CAV]
1. Since common question of law & facts are involved in both the petitions under Section, they are heard analogously and are being disposed of by this common order. [For the sake of convenience, Cr.M.P. No. 958 of 2017 is taken-up as lead case]
2. Petitioner - M/S Cargill India Private Limited(in CRMP No. 958 of 2017) has filed present petition under Section 482 of the Cr.P.C. challenging the bailable warrant issued by the Chief Judicial Magistrate, Korba on 27.11.2007 against accused No. 4 Hardeep Singh (petitioner in Cr.M.P. No. 1267/2017) and registration of complaint filed by respondent No. 2 - Food Inspector, Food & Drug Administration, District Korba (C.G.), (herein after complainant) for alleged violation of Section 7(i) of Prevention of Food Adulteration Act, 1954 (in short "The Act, 1954").
3. The brief facts, as projected by the petitioner, are that respondent No. 2/complaint filed a complaint before the Chief Judicial Magistrate, District Korba, (C.G.) for alleged violation of Section 7(i) of the Act, 1954, which is punishable under Section 16 (1)(a) of the Act, 1954 and the Prevention of Food Adulteration Rules, 1955 (in short "Rules, 1955). It has been contended in the complaint by respondent No. 2 that he had visited the premises of M/s. Ashish General Store, T.P. Nagar, Korba (C.G.) alongwith witnesses namely Shri Ram Pal Sidar and Shri Ravindra Kumar Agrawal, the owner of M/s. Ashish General Stores, T.P. Nagar, Korba (C.G.) on 29.11.2004 at about 12 pm and informed that he used to deal with the trading of edible oils (for short "Vendor") and thereby purchased three pouches of 1 liter each of Nature Fresh Acti-Lite Refined Soybean Oil (hereinafter referred as "Product"). The sampled article of "Product" was equally divided into three counterparts each having a 1ltr. pouch of the sampled Product. Each counterpart containing the sample was separately packed, fastened and sealed according to the Act, 1954 and Rules, 1955 made therein. The Vendor's signatures were obtained on the LHA 3 slip and the wrapper of the sample counterparts containing the sample. The notice was given to Vendor in Form VI; and the price of the sample was also paid to Vendor vide Vendor Receipt dated 29.11.2004 and Panchnama was also prepared on the spot itself. All the documents, which were prepared by respondent No. 2 - Food Inspector/complainant, were signed by the Vendor. On being demanded by the Food Inspector/complainant, the invoice was provided by the Vendor and Form VI was sent on 30.11.2004 to distributor M/s. V.K. Traders, Stadium Road, Korba.
4. Similarly, the Food Inspector/complainant sent Form VI to manufacturing company of product i.e. Cargill India Pvt. Ltd./petitioner No. 1 herein. It has further been contended that one counter-part of the sample in sealed condition along-with copy of memo in Form VII and another copy of memo in Form VII under sealed cover were sent separately to the Public Analyst, Raipur on 29.11.2004 and remaining two counterparts of the sample along with two copies of memo in Form VII in sealed packets were sent to be deposited in the Local (Health) Authority, District Korba.
5. It has been further contended that the Public Analyst received the sample on 30.11.2004 and analyzed the sample from 27.12.2004 till 31.12.2004. The Public Analyst found the sample not conforming to the standards of the Act as the Saponification Value of the sampled product was 187.84 which was below the prescribed limit. Public Analyst has given its report, which is extracted below :-
"The sample does not conform as per standards/provisions laid down under the prevention of Food Adulteration Rules, 1955, in respect of the above tests performed."
6. Thereafter, the sanction was granted by Sub-Controller, Food & Drug Administration, District Korba on 20.11.2007 for filing the present complaint against the accused persons including petitioner. After getting sanction from the Sub-Controller, Food & Drug Administration, District Korba, the complaint was filed on 27.10.2007 before the Judicial Magistrate First Class which was registered as Criminal Case No. 1497/2007 and subsequently 4 renumbered as 538/2013 for alleged violation of Section 7(i) of the Act, 1954, which is punishable under Section 16 (1)(a) of the Act, 1954 and the Rules, 1955. After filing of the complaint on 27.10.2007, respondent No. 2 in compliance of Section 13(ii) of the Act has issued notice to the petitioner after filing of complaint on 14.12.2007 advising the petitioner to file an application within 10 days before the concerning court for sending the sample for testing by Central Laboratory. The notice dated 14.12.2007 is extracted below :-
^^[kkn~; fujh{kd Jh vkj +,l + pkSjfl;k] eq[;ky; dksjck }kjk fnukad 29 +11 +2004 dks QeZ vk'kh"k tujy Lvksj Vh +ih +uxj dksjck ds izks +johUnz dqekj vxzoky ru; jkekorkj vxzoky ls fy;k x;k [kkn~; inkFkZ fjQkbUM lks;kchu vkby ¼uspj Qzsl½ uequk dzekad 27@04] tks yksd fo'ys"kd jkT; [kkn~; iz;ksx'kkyk N +x + jk;iqj ds izfrosnu dzekad SST/FTL/476/04D.N.449/SST fnukad 01 +01 +05 }kjk vifefJr ?kksf"kr fd;k x;k gS A ftlij vfHk;ktu Lohd`fr dzekad 02@07 fnukad 20 +11 +2007 ds rgr mijksDr izdj.k ekuuh; eq[; U;kf;d n.Mkf/kdkjh dksjck ftyk dksjck N +x + ds U;k;ky; esa izdj.k dzekad 1497@07 fnukad 28 +11 +07 dks is'k fd;k x;k gS A ftldh vfxze is'kh fnukad 28 +04 +08 fu;r gS A mijksDr uequs ds f}rh; Hkkx bl dk;kZy; esa lqjf{kr gS ;fn vki izFke tkap ls larq"V ugha gSa rks uksfVl izkIr djus ds 10 fnu ds vUnj uequs ds f}rh; Hkkx dh tkap dsUnzh; [kkn~; iz;ksx'kkyk esa vf/kfu;e dh /kkjk 13¼2½ ds vUrxZr djkus gsrq laca/khr U;k;ky; dks izkFkZuk i= ns ldrs gSa A**
7. Learned counsel appearing for the petitioner would submit that there is violation of Section 13(2) of the Act, 1954 as there is delay on the part of the respondent No.2 / complainant to send the sample for analysis to the Referral Laboratory after expiry of shelf life of the product because the date of packaging of sample is 24 September, 2004 and the sample of the product was taken by the Food Inspector/complainant on 29th November, 2004 whereas sample was analyzed by the Public Analyst between 27.12.2004 to 31.12.2004 and the complaint was filed against the petitioner on 27.11.2007. The complaint was filed after shelf life of the product i.e. six months from the date of packaging and no opportunity was given to the petitioner for analyzing by the Central Food Laboratory which is violation of Section 13(2) of the Act, 1954 affecting the right of the petitioner adversely as the product went outside it's shelf life/expiry date by two years and eight months in November, 2007, when the complaint was filed, therefore, the proceedings are liable to be quashed by this Court.5
8. It has been further contended by learned counsel for the petitioner that the prosecution was launched against the petitioner and other accused persons by respondent No. 2/complainant upon a completely wrong assumption that the sampled Product was adulterated, whereas the report of Public Analyst simply opined the Product does not conform the standards of saponification value provided in the Schedule. It is further contended that sampled product was found to be 187.84 saponification value against 189, the public analyst has nowhere opined or stated the sampled product to be adulterated. Still the offence of adulteration has been alleged which is nothing but illegality.
9. He would further submit that Section 2(ia) of the Act, 1954 defines the term "adulterated". Learned counsel for the petitioners would further refer to the provisions contained in Section 4(9) of the Rules, 1955 wherein the method of Analysis to be adopted for analyzing the food samples by the Central Food Laboratory has been provided. He would further submit that in absence of report, the accused will not be able to identify that what procedure/method has been adopted for analysing the samples, and that will be against the interest of the petitioner. It has further been contended that the Food Inspector/complainant has wrongly instituted the proceedings against the petitioner as neither in the complaint nor in the Public Analyst report, was the sampled Product is deemed as injurious to health.
10. He would further submit that issuance of warrant of arrest against accused No. 4 namely Hardeep Singh (herein petitioner in CRMP No.1267 of 2017) on 28.04.2008 who has been arrayed by the complainant in the complaint as Director of the Company is incorrect as Hardeep Singh was the employee of the company till 2007 and Hardeep Singh has no connection with the company.
He is residing at different address and at no stage summons were served upon him. It has been further contended that no summon was served upon the petitioner as the registered office of the Company has been shifted from DLF Gateway Towers, DLF City Phase III, Gurgaon, Haryana, 122002 with effect from 9th December, 2002 to 13 Adbul Fazal Road, New Delhi, 110001, with effect from 9th August, 2007 to 111, Rectangal-1, Saket District 6 Centre, New Delhi and with effect from 8 th July, 2016 to Y-65, Ground Floor, Hauz Khas, New Delhi - 110016 and corporate office of the company has been shifted from October, 2007 from 11th Floor, DLF Gateway Towers, DLF Cyber City, Phase III, Gurgaon, Haryana, 122002 to 14th Floor, Building No. 9A, DLF Cyber City, Guraon-122002, as such, there was no information about the present proceedings and the absence of the accused was not deliberate but because of non-service of proper summon. He would lastly submit that warrant of arrest issued against accused No. 4 - Hardeep Singh and proceedings against the Company for violation of Section 7(i) of the Act, 1954, which is punishable under Section 16 (1)(a) of the Act, 1954 and Rules, 1955 may kindly be quashed. He placed reliance upon the judgments of the Supreme Court & High Courts in the matters of Shiv Kumar alias Shiwalamal Narumal Chugwani v. State of Maharashtra1, Girishbhai Dahyabhai Shah v. C.C. Jani and another2, Ravindra Chopade v. State of Madhya Pradesh 3, Marico Ltd. & Ors. v. State of Delhi & Anr. 4, ITC Ltd. & others v. The State of Madhya Pradesh5, Rameshwar Dayal v. State of U.P.6, Municipal Corporation of Delhi v. Ghisa Ram 7, M/s Cargill India Private Limited v. State of Haryana and another 8, Ahmed Dababhai Advani v. State of Maharashtra 9, M/s. Gurulakshmi Food Products, Guntur vs. The State of A.P. 10, Sri Shravan Kumar Agarwal v. The State of A.P. 11, M. Durga Rao v. The State of A.P.12, D. Rama Moorthy v. Food Inspector, Perambra Circle, Vadakara & another13, M/s Hindustan Lever Limited & another v. The State of Chhattisgarh14 and Sandeep Tiwari v. State of Chhattisgarh15 in support of their submissions.
1 2010 SCC OnLine Bom 844 2 (2009) 15 SCC 64 3 Misc. Criminal Case No.5366 of 2011, decided on 07.01.2013 4 2015 SCC OnLine Del 7162 5 M.Cr.C. No.9934/2011, decided on 29th March, 2012 6 1995 Supp (4) SCC 659 7 AIR 1967 SC 970 8 Cr.M.P. No. M-28799 of 2012 (O&M), dated 8.8.2013 9 1991 Supp (2) SCC 652 10 2010 SCC OnLine AP 45 11 2009 (2) FAC 366 12 Cr.R. No. 412 of 2006, decided on 11.03.2011 13 2012 SCC OnLine Ker 3703 14 2009 SCC OnLine Chh 163 15 Cr.M.P. No. 1050 of 2019, decided on 23.11.2020 7
11. This Court while admitting the petition on 01.08.2017 has stayed the further proceedings pending before the Court below and the same is continued till now.
12. The State has filed its reply, in which, they have contended that the Public Analyst, State Food Testing Laboratory received the sample on 30.11.2004 and the Deputy Director, Food & Drugs Administration, Korba vide its letter dated 14.12.2007 had sent a notice under Section 13(2) of the Act, 1954 to the Vendor Ravindra Kumar Agrawal, Vikas Agrawal, Prioprietor, Vikas Traders, Stadium Road, T.P. Nagar, Korba, M/s. Kargil India Private Limited, D.L.F. Gateway Towers, D.L.O.F. City Face 111, Gudgaon 122002, Haryana and Shri Hardeep Singh, Director and Nominee C.I.P.L., 11th Floor, D.L.F. Gateway Towers, D.L.F. City, Face III, Gudgaon, Pin Code 122002, Haryana vide registered post. Copy of the notice under Section 13(2) of the Act, 1954 is annexed with the return.
13. It is further contended that as per requirement of Section 13(2) of the Act, 1954, after the institution of prosecution, the Local (Health) Authority shall forward a copy of the report of the analysis to such person or person against whom the prosecution has been launched vide Annexure R-1, informing such person or persons that if it is so desired, such person or persons may make an application to the Court within a period of ten days from the date of receipt of copy of the report to get the sample of the article of food kept by the Local Health Authority, analyzed by the Central Food Laboratory and thus the contention of the petitioner is denied that in the present case no such notice/report was ever issued to the accused including the present petitioner. It has been further contended that mandatory requirement contained in Section 13(2) of the Act, 1954 has been complied with and the right of the petitioner to get the product re-analyzed has been redressed, as such, the petition is liable to be dismissed by this Court. It has further been contended that despite the above liberty granted to the petitioner as per Section 13(2) of the Act, 1954, the petitioner has failed to examine the product through Central Food Laboratory, Kolkata. Thus, there is no material available on record to show that the petitioner exercised his right to get the sample 8 tested, therefore, the question of delay in submitting the report is not of much significance.
14. It has also been contended that as per the report of Public Analyst, State Food Testing Laboratory, Raipur dated 1.1.2005, sample was not conforming to the standards of the Act, 1954 and the same is adulterated. It has further been contended that petitioner has preferred the present petition without arraying the other accused persons as party respondents, therefore, instant petition is liable to be dismissed on the ground of non-joinder of necessary parties. It has further been contended that the petition is also liable to be dismissed on the ground of delay and latches as the instant criminal complaint has been filed in the year 2007 and despite issuance of the bailable warrant against the present petitioner/Company, they did not turn-up and after lapse of an inordinate delay of about 10 years, the instant petition has been filed. It has been further contended that Food Inspector/Complainant has enquired the name of nominee of the Company from the Deputy Director, Food and Drugs Administration, who intimated the name of Shri Hardeep Singh as Director and nominee of the Petitioner-Company, therefore, whether the petitioner was nominee on the date of commission of offence or another person was nominee of changed address is question of fact and at the stage of petition under Section 482 of CrPC, it is not possible to enquire about the aforesaid disputed facts because it is factual matrix, which can be adjudicated before the trial Court only. It has been further contended in the return that the power under Section 482 of Cr.P.C. for quashing of the criminal complaint pending before the Court of Judicial Magistrate, First Class, Korba is exceptional in nature and should be used sparingly. In support of his submission, the State counsel placed reliance upon the judgment of the Supreme Court in the matter of Zandu Pharmaceutical Woks Ltd. v. Md. Sharaful Hasque reported in 2005 (1) SCC 122.
15. I have heard learned counsel appearing for the parties and perused the material available on record carefully.
16. The point required to be determined by this Court is whether noncompliance of Section 13(2) of the Act, 1954 to get the 9 "Product" tested by the Central Laboratory, would entitle quashing of proceedings against the petitioner for offence of distribution of adulterated food as per Section 7(1) of the Act, 1954 ?
17. Before adverting to the factual matrix of the case, it would be appropriate to refer to the relevant provisions of the Act, 1954. It is explained in the Statement of Objects and Reasons of the Act, 1954 prior to its enactement, there were numerous State legislations on the subject of prevention of adulteration of food- stuffs but these lacked uniformity. Hence the need for a Central legislation was felt which could inter alia, provide for a uniform procedure and the constitution of 'a Central Food Laboratory to which food samples can be referred to for final opinion in disputed cases.'
18. Section 8 of the Act, 1954 provides for the appointment of Public Analysis by the Central or the State Government as the case may be, for the purpose of carrying out analysis and testing of food samples in a given local area. Section 9 provides for the appointment of Food Inspectors for the purpose of inter alia, carrying out inspection of establishments where food articles are manufactured or sold, and seizing food articles which require analysis. Section 14A mandates vendors of food articles to disclose the name and other particulars of the person from whom the food article was purchased, if the Food Inspector so requires.
19. Section 11 stipulates the procedure to be followed by Food Inspectors while taking food samples for analysis. It is important to note that the first step of the procedure is to immediately notify on the spot, not only the vendor but also the person whose particulars are disclosed under Section 14A (which would include a distributor/marketer such as the petitioner), that a sample is being sent for analysis. The sample is then divided into three parts-while the first part is sent to the Public Analyst, the other two parts are deposited with the Local Health Authority as a contingency in case the first part is lost or damaged.
20. Section 13 of the Act, 1954 prescribes the subsequent procedure to be followed after the Public Analyst prepares their report which are extracted below:
10"(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 sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the same of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
(2B) On receipt of the part of parts of the sample from the Local (Health) Authority under sub-section 2(A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-
section (1) of Section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and dispatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.
(3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2B) shall supersede the report given by the public analyst under sub-section(1)."
21. Therefore, the purpose of Section 13 of the Act, 1954 is to give a second opportunity to accused persons, against whom the prosecution is initiated under the 1954 Act based on the Public Analyst's report, to get the relevant food sample tested against by the Central Laboratory. Since the Central Laboratory's report will have precedence over that of the Public Analyst, this is a valuable opportunity for accused persons to claim exoneration from criminal proceedings on account of noncompliance of the same.
22. Thus, from bare perusal of Section 13 of the Act, 1954 under the 11 scheme of the Act, the accused has to be given prior notice, as provided under Section 11, that samples of a food article manufactured and/or sold by them have been sent for analysis, before the Public Analyst prepares their report. The 1954 Act does not envisage a situation such as in the present case where the sample is sent for analysis, and the Public Analyst's report is also prepared, but the marketer is informed several years later that prosecution is sought to be instituted against them. During such period, the food article being perishable in nature would most probably be incapable of being sent for retesting to the Central Laboratory which will infringe the right of the petitioner/accused.
23. It is settled by Hon'ble Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970, that where inordinate delay in instituting prosecution has resulted in denial of the right under Section 13(2), it is deemed to have caused serious prejudice to the accused such that their conviction on the basis of the Public Analyst's report cannot be upheld. The Hon'ble Supreme Court in para 9 has held as under:-
"9. In the present case, the sample was taken on the 20th September, 1961. Ordinarily, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. It, however, appears that delay took place even in obtaining the report of the Public Analyst, because the Public Analyst actually analysed the sample on 3rd October, 1961 and sent his report on 23rd October, 1961. It may be presumed that some delay in the analysis by the Public Analyst and in his sending his report to the prose- cution is bound to occur. Such delay could always be envisaged by the prosecution, and consequently, the elementary precaution of adding a preservative to the sample which- was given to the respondent should necessarily have been taken by the Food Inspector. If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January, 1962. The report of the Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable -the respondent to exercise his right under s. 13(2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching 12 the prosecution when they filed the complaint on 23rd May, 1962, and no explanation is forthcoming why the complaint in Court was filed about seven months after' the report of the Public Analyst had been issued by him This, is, therefore, clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. In such a case, we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecution."
24. In Girishbhai Dahyabhai Shah v. C.C. Jani reported in (2009) 15 SCC 64, Hon'ble Supreme Court affirmed that delay in sending a report of the Public Analyst to the accused, such that he is no longer in a position to apply for retesting under Section 13(2) of the 1954 Act, would entitle quashing of criminal proceedings under Section 482 of the Cr.P.C. The Hon'ble Supreme Court in para 7, 8 and 9 of the said judgment has held as under:-
"7. Section 13(1) and (2) of the Prevention of Food Adulteration Act, 1954, reads as follows:
"Section 13.Report of Public analyst. - (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 sub-section(1) to the effect that the article of food is adulterated, the Local(Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory."
8. It will be apparent from the above, that only on receipt of the report of the Public Analyst under sub-Section(1) to the effect that the article of food is adulterated, can a prosecution be launched and a copy of the report could be 13 supplied to the accused. Sub-Section(2) also indicates that on receipt of the report the accused could, if he so desired, make an application to the court within a period of 10 days form the date of the receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
9. In other words, in the instant case, the appellant was prevented from applying for analysis of the second sample before 17th July, 1989, by which time the second sample of curd had deteriorated and was not capable of being analysed as was found in the case of Ghisa Ram (supra) referred to above."
25. Thus, it is prima facie established that the sample of curd was not conformed to the standard laid down in the item A.11.02.04 of the Rules (1955) read with the Standard of Cow Milk for Gujarat laid down in the table below item No. A.11.01.11 of the Rules (1955) and the sample was found adulterated. All the other contentions raised by the learned counsel for the applicant about delay in filing complaint, sending sample to the analyst, delay by the court of 46 days, sanction granted by the competent authority as without application of mind can be raised before the learned Magistrate and all the contentions are in realm of defence which require evidence to be led and appreciated by the concerned Court. The contention of the learned counsel for the applicant that the Court of learned Magistrate was not functional for about 6-7 years and the applicant was ignorant about the criminal proceedings pending before that Court cannot be a ground for exercising powers under Section 482 of the Code of Criminal Procedure."
26. Hon'ble Supreme Court in the matter of M/s Alkem Laboratories Ltd. v. State of Madhya Pradesh16 has held as under:-
"Applying the abovementioned test to the present case, it has to be seen whether first, the Appellant was entitled to apply for testing of the Jelly by the Central Laboratory under Section 13(2); second, whether the denial of the right was the Respondents' fault and third, whether such denial is prejudicial to the Appellant's case. With respect to the first point, the Respondents have relied upon the Public Analyst's Report which states that the Jelly contains 'sugar/sucrose', so as to institute a complaint for misbranding under Section 2(ix)(g) of the 1954 Act. This is because the label on the packaging claims that the Jelly is 16 S.L.P. (Cr.) No. 3995 of 2018 decided on 29.11.2019 14 'sugarless'. Hence, the Public Analyst's finding on whether 'sugar' as an ingredient is present in the Jelly sample is crucial to proving the offence of 'misbranding' against the Appellant. Thus, the Appellant ought to have had the opportunity to make an application under Section 13(2) for a second opinion from the Central Laboratory on the contents of the Jelly sample."
With respect to the second point, we are of the view that Respondent No. 2 erred in not making query to the Retailer, at the first instance, about the marketer of the Jelly, as she was empowered to do under Section 14A of the 1954 Act. If she had done so, the Appellant could have been notified in 2008 itself that the Jelly is being taken for analysis. Even if this lapse is condoned, once the Retailer had intimated the Respondents that the Appellant was the marketer of the Jelly, they ought to have made more efforts in notifying the Appellant of the alleged irregularity found in the Jelly sample, as per Section 13(2). We do not find merit in the Respondents' submission that the delay in informing the Appellant was because the Appellant was deliberately avoiding service of notice. Even if the address produced by the Retailer was of the Appellant's Indore Branch, the label on the packaging of the Jelly clearly indicated that the official address for communication would be "Alkem House, Senapati Bapat Marg, Lower Parel, Mumbai 400013". Hence even if no response was being received from the Indore branch, the Respondents could have attempted to send the details of the Public Analyst's Report to the Appellant's Mumbai address. Thus it is clear that the Appellant lost their chance to get the Jelly sample retested under Section 13(2) on account of the Respondents' negligence.
Finally, with regard to the third point, it is true that non compliance with Section 13(2) would not be fatal in every case, if it is found that the sample is still fit for analysis (T. V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry, (1994) 1 SCC (754). However the Respondents have not disputed that the shelf life of the Jelly sample would have, in all probability, expired at this stage. Hence we find that this is a fit case for quashing of proceedings against the Appellant on account of denial of their valuable right under Section 13(2).
27. This Court in the matter of Sandeep Tiwari v. State of Chhattisgarh17 has held in paragraph 30 as under :-
"30. Finally, reverting the facts of the present case in light of the aforesaid principles of law laid down by Their Lordships of the Supreme Court, it is quite vivid that the valuable right of the petitioner under Section 13(2) of the Act of 1954 to get the second sample analysed by the Central Food Laboratory is lost as the product in question 17 Cr.M.P. No. 1050 of 2019, decided on 2311.2020 15 'Bru Instant Cofee Chicory Misture' was manufactured in March, 2008 and it was best before 18 months from the date of packaging and thereafter the product in question had lost its shelf life as it was to be used before September, 2009, and the complaint was filed before the jurisdictional criminal court on 27/04/2010, as such, the petitioner has been deprived of his valuable and indefeasible right to get the second sample of the product reanalyzed from the Central Food Laboratory under Section 13(2) of the Act of 1954 as the report from the Director of the Central Food Laboratory supersedes the report of the Public analyst by virtue of Section 13(3) of the Act of 1954 and consequently, the petitioner has suffered great prejudice in defending himself in the prosecution launched against him, as such, the entire prosecution against the petitioner deserves to be quashed on this short ground alone."
28. The Various High Courts have reiterated the same view that it is necessary on the part of the prosecution to afford an opportunity to the accused for sending the sample under Section 13 (2) of the PFA Act, 1954 to the Central Food Laboratory during the shelf life of the product in question, if no such opportunity is granted to the accused, the petitioner has suffered great prejudice in defending himself in the prosecution launched against him and on this count alone, the entire prosecution launched against the petitioner deserves to be quashed.
29. Coming back to the facts of the present case in light of the aforesaid principles of law laid down by Their Lordships of the Hon'ble Supreme Court, this Court has to examine whether there is violation of Section 13(2) of the Act, 1954 or not. It is quite clear that petitioner has been charged for commission of offence punishable under Section 7(i) of the PFA Act, 1954, which is punishable under Section 16 (1)(a) of the Act, 1954 and the Rules, 1955 with the allegation that petitioner-Company has manufactured adulterated Soyabin Oil and distributed the same through its stockiest. The Section 2(ia) of the Act, 1954 defined the term "adulterated", which is extracted below :-
"[ia] "adulterated"- an article of food shall be deemed to be adulterated -
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;16
(b) if the article contains any other substance which affects,or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;
(e)if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f)if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or its otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h)if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health'
(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]
(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;
(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health:]
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:-
Provided that, where the quantity or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause."
30. The date of packaging of the product is 24 th September, 2004 and the sample of the product was taken by the Food Inspector/complainant on 29th November, 2004 and sample was analyzed by the Public Analyst between 27.12.2004 to 31.12.2004 17 whereas the shelf life of Product was best before six months from its packing. The product in question went outside its shelf life/expiry date by two years and eight months in November, 2007, when the complaint was filed, thereafter, the prosecution vide its letter dated 14.12.2007 has informed the petitioner and other accused that they may make an application to the Court within a period of ten days from the date of receipt of copy of the report to get the sample of the product kept by the Local Health Authority analyzed by the Central Food Laboratory. Thus, the notice asking for analysis of product by Central Food Laboratory has been issued after the shelf life of the product which is clear case of violation of Section 13(2) of the Act, 1954 as well as law laid downy by the Hon'ble Supreme Court and various High Courts. Therefore, the prosecution for noncompliance of Section 13(2) of the Act, 1954 is liable to be quashed.
31. The submission of learned counsel for the State that compliance of the provisions contained in Section 13(2) of the Act, 1954 is not mandatory in every case is applicable to the present facts of the case as shelf life of the product is expired much prior to filing of the complaint. If the product has shelf life when the notice was issued then the submission may be considered. Hon'ble Supreme Court in the matter of T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry, reported in (1994) 1 SCC 754 after analyzing the provisions contained in Section 13(2) of the PFA Act, 1954 and the Prevention of Food Adulteration Rules, 1955 has held that Rule 7(3) (as amended in 1977) is only directory and not mandatory when the product has shelf life but shelf life is over then compliance is mandatory. The Hon'ble Supreme Court has held in para 11 as under :-
"11.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 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 18 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 can not 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 can not be said that even a slight delay would render the report void or inadmissible in law. In this context it mast 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, Sub-section (2) of Section 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 inspite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it mast 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 Sub-rule 3 of Rule 7 by itself can not be a ground for the prosecution case being thrown out."
32. The Hon'ble Supreme Court in Criminal Appeal No. 1312/2021 in case of Narayana Prasad Sahu Vs. The State of Madhya Pradesh decided on 29.10.2021 has held as under:-
"Under Sub-Section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from who the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub-Section (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can 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 analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the article of food was taken. Apart from the right of the accused to contend that the report is not correct, he has right to exercise 19 an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the accused, his right under sub-Section (2) of Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated. Consequently, his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in the case of Vijendra (Supra) held that mere dispatch of the report ot the accused is not a sufficient compliance with the requirement of Sub-Section (2) of Section 13 and the report must be served on the accused."
33. From the return filed by the State, it is quite clear that respondents are not disputing that the shelf life of the product has already been expired on the date of filing of the complaint, therefore, it is a fit case for quashing of the proceedings against the petitioner on account of denial of his valuable right to get the second sample of the product analysed from the Central Food Laboratory under Section 13(2) of the Act, 1954.
34. In view of the aforesaid legal analysis, I have no hesitation to hold that the prosecution case against the petitioners namely M/s Cargil India Pvt. Ltd. and Hardeep Singh deserves to be quashed in exercise of jurisdiction conferred under Section 482 of Cr.P.C. Consequently, the criminal Case No. 383 / 2014 (Chhattisgarh Government through R.S. Chourasia, Food Inspector v. Ravindra Kumar Agrawal and others) pending before the Judicial Magistrate, First Class, District Korba (C.G.) so far as it relates to M/s Cargil India Pvt. Ltd. And accused No. 4 Hardeep Singh is hereby quashed.
35. Accordingly, both the petitions filed under Section 482 of Cr.P.C.
are allowed to the extent sketched hereinabove.d/-
Sd/-
(Narendra Kumar Vyas) Judge Amita 20