Orissa High Court
Ashok Kumar Khandelwal vs Paramananda Singh on 7 May, 2018
Equivalent citations: AIRONLINE 2018 ORI 449
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 2375 of 2009
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with 2(c) C.C. No.76 of 2005
pending on the file of S.D.J.M., Balasore.
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Ashok Kumar Khandelwal ....... Petitioner
-Versus-
Paramananda Singh
and another ....... Opposite parties
For Petitioner: - Mr. Sumit Lal
For Opp. Party No.1: - None
For Opp. Party No.2: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 07.05.2018
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S. K. SAHOO, J. In this application under section 482 of Cr.P.C., the
petitioner Ashok Kumar Khandelwal has prayed to quash the
criminal proceedings in 2(c) C.C. No.76 of 2005 pending in the
Court of learned S.D.J.M., Balasore in which on submission of the
prosecution report, cognizance of offences has been taken on
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11.07.2005 under section 16(1)(a)(i) read with section 2(i-a)(m)
and section 7(i)(iv) of the Prevention of Food Adulteration Act,
1954 (hereafter 'P.F.A. Act') and process has been issued against
him.
The prosecution case, as per the prosecution report
submitted by the opposite party no.1 Paramananda Singh, Food
Inspector, Balasore Municipality is that on 24.08.2004 at about
11.30 a.m. he along with Ramakrushna Singh, peon, office of the
Health Officer, Balasore Municipality visited a grocery shop
situated at Port Road, Balasore named and styled as M/s. Shiva
Durga Store. At the time of the visit of the complainant, the
petitioner was present in the grocery shop and was selling the
food articles such as edible oils, vanaspati, pulses, spices,
iodized salt, tea (dust), wheat products etc. to the consumers for
human consumption. After disclosing his identity to the
petitioner, the complainant checked the food licence bearing
no.127 of 2004 which was valid upto 31.12.2004. He examined
the food articles which were kept in the shop premises for sale
for human consumption and suspected that the vanaspati
(Dalda), iodized salt (Aashirvaad) and tea dust (Tata) to be
adulterated. The complainant called the persons who were in the
shop as well as the persons who were at the neighbouring shop
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to be witnesses but they refused to be witnesses and did not
disclose their identities. The complainant asked Ram Krushna
Singh who had accompanied him to be a witness and he agreed.
The complainant gave a notice to the petitioner in Form No.VI
and prepared the inspection report. He purchased 1 kg. 500
grams of vanaspati (Dalda), 600 grams of tea dust (Tata) and 3
kg. of iodized salt (Aashirvaad) from the petitioner on payment
of Rs.186/- and the petitioner granted a money receipt to the
complainant to that effect. In presence of the petitioner and the
witness, the complainant divided the sample of the food articles
purchased into three equal parts separately and each part of the
sample was labeled and then completely wrapped with thick
paper and the end of the paper was neatly folded in and affixed
by means of gum and again labeled on the outer cover. The
paper slips bearing the signature of the Local Health Authority
-cum- Chief District Medical Officer, Balasore were affixed to the
sample packets of vanaspati (Dalda), tea dust (Tata) and iodized
salt (Aashirvaad) from bottom to top of the sample packets after
sealing the packets properly as per the provisions of the
Prevention of Food Adulteration Rules, 1955 (hereafter 'P.F.A.
Rules'). The signatures of the petitioner were taken on the
wrapper of all the sample packets overlapping the paper slips.
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It is the further prosecution case as per the
prosecution report that on 25.08.2004 the complainant sent one
part of the sealed sample packet from each item with a copy of
memorandum in Form No.VII bearing the specimen impression
of the seal used to seal the sample in a sealed packet and a
separate sealed cover containing the copy of the memorandum
in Form No.VII with specimen signature of seal to the Public
Analyst to the Government of Orissa, State Public Health
Laboratory, Bhubaneswar by special messenger. The Public
Analyst, Bhubaneswar granted receipt to that effect. On
24.08.2004 the rest parts of the sealed sample packets with the
copy of memorandum were also deposited with the Local Health
Authority -cum- Chief District Medical Officer, Balasore. After
chemical examination, the sample of Vanaspati (Dalda) was
found to be adulterated vide Public Analyst report No. 486 of
2004 dated 29.09.2004 as its quality falls below the prescribed
standard vide result no.4 whereas the sample of tea dust (Tata)
and iodized salt were found to be up to standard.
Mr. Sumit Lal, learned counsel appearing for the
petitioner emphatically challenging the correctness of the
impugned order dated 11.07.2005 as well as the criminal
proceeding in 2(c) C.C. No.76 of 2005 contended that when the
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sample was collected on 24.08.2004 and it was sent to the public
analyst on 25.08.2004 and the Public Analyst report was made
ready on 29.09.2004, the inordinate delay in launching of the
prosecution on 11.07.2005 was not proper and justified. It is
further contended that after launching of the prosecution, the
petitioner received an intimation (Annexure-5) dated 07.07.2005
from the Local Health Authority -cum- Chief District Medical
Officer, Balasore under section 13(2) of P.F.A. Act wherein it is
indicated that if the petitioner so desires, he can make an
application before the learned S.D.J.M., Balasore within ten days
from the date of receipt of the intimation to get the food sample
analyzed by the Central Food Laboratory. It was further
intimated that sample of Tata tea (dust) and iodized salt
(Aashirvaad) were up to prescribed standard as per Public
Analyst report. Learned counsel for the petitioner drew the
attention of this Court to Annexure-1 which was the cover note
of the Dalda (Aashirvaad) and it reveals the inscription 'best
before six months from packing'. It is contended by Mr. Lal that
even if the date of collection of the sample i.e. 24.08.2004 is
taken to be the date of manufacturing then also the self-life of
stock of Dalda i.e. six months had already expired by the time
the petitioner got intimation under Annexure-5 and therefore, no
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fruitful purpose would have been served in making an application
before the concerned Court for sending the sample analyzed by
the Central Food Laboratory. It is further contended that due to
laches on the part of the prosecution in launching the
prosecution after an inordinate delay, a valuable right conferred
by the statute has been lost and the petitioner has been deprived
of challenging the report of the Public Analyst before Central
Food Laboratory and in such a scenario, the continuance of the
proceeding would be an abuse of process. The learned counsel
for the petitioner further drew the attention of this Court to the
public analyst report annexed as Annexure-3 wherein in Colum
No.4, it is mentioned that Baudouin test (expressed as read units
in a 2 cm. cell on Lovibond scale) is negative and the method of
test is 'DGHS' and the criteria for conformity used is not lighter
2.0 red units. Learned counsel for the petitioner contended that
so far as Vanaspati is concerned, clause A.19 (x) of Appendix B
to the P.F.A. Rules indicates that the 'Vanaspati' means any
refined edible vegetable oil or oils, subjected to a process of
hydrogenation in any form and it shall conform to the standards
that it shall contain raw or refined sesame (til) oil in sufficient
quantity so that when the vanaspati is mixed with refined
groundnut oil in the proportion of 20:80, the colour produced by
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the Baudouin test shall not be lighter than 2.0 red unit in a 1 cm.
cell on a lovibond scale. It is contended that even though the
statute provides that the measurement has to be taken in a 1
cm. cell on a Lovibond scale but in this case, the measurement
has been taken in a 2 cm. cell on a lovibond scale and therefore,
no sanctity can be attached to the report given by the Public
Analyst. It is further contended by Mr. Lal that the report of
Public Analyst under Annexure-3 indicates that DGHS method of
analysis was adopted for Baudouin test for obtaining result no.4.
It is contended that section 23 of P.F.A. Act provides that 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 the Act and
section 23(1A)(hh) of P.F.A. Act indicates that such rules may
provide for 'defining the methods of analysis'. It is contended
that until 25.03.2008, Central Government had not made any
rule defining the methods of analysis and in absence of any
prescribed method of analysis under section 23(1A)(hh) of P.F.A.
Act, the Public Analyst has resorted to methods which was
convenient to him and as such the result of the analysis cannot
be accepted as valid. It is contended that the Public Analyst,
Orissa under Annexure-3 has adopted Directorate General of
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Health Services (DGHS) method which is not the prescribed
method and therefore, on the basis of such report which is
invalid, no prosecution is maintainable. Learned counsel for the
petitioner while relying upon the case in Pepsico India
Holdings Private Limited -Vrs.- Food Inspector and
another reported in (2011) 1 Supreme Court Cases 176
contended that no methods of analysis having been defined
under section 23(1A)(hh) of the P.F.A. Act by the Central
Government, the report submitted by the Public Analyst by
following whatever method he thought to be appropriate is not
valid and correct and cannot be accepted at all even at this stage
and therefore, the criminal proceeding should be quashed.
Though the complainant-Food Inspector was arrayed
as the opposite party no.1 and notice was issued to the opposite
party no.1 but nobody appeared on behalf of the opposite party
no.1.
Mr. Prem Kumar Patnaik, learned Addl. Government
Advocate produced a letter dated 03.05.2018 of the Executive
Officer, Balasore Municipality wherein it is mentioned that the
Food Inspector of Balasore Municipality is under the control of
Health Officer, Balasore Municipality who is drawing and
disbursement officer and the immediate disciplinary authority
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and the Executive Officer, Balasore Municipality has no authority
to direct or to instruct the Food Inspector in connection to his job
assignment. It is further mentioned that soon after receiving the
letter from the Advocate General Office, the same was
communicated to the Health Officer on 30.04.2018 which has
also been received by the Health Officer on the same day and
Paramananda Singh, the then Food Inspector was also intimated
over phone.
Learned counsel for the State placed the matter on
behalf of the opposite parties and contended that failure of the
petitioner to exercise his option in making an application to the
Court to get the sample analyzed by the Central Food Laboratory
would disentitle him claiming prejudice of denial of right under
section 13(2) of P.F.A. Act. He further contended that there is no
illegality in the impugned order and the contentions raised by the
learned counsel for the petitioner can be dealt by the learned
trial Court at appropriate stage and this Court should not invoke
the inherent power to interfere with the same.
After going through the prosecution report and the
documents annexed to the 482 of Cr.P.C. application, there are
some undisputed facts which are as follows:-
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(i) The sample of the alleged adulterated
Vanaspati (Dalda) was collected by the Food
Inspector (complainant) on 24.08.2004;
(ii) One part of the sealed sample packet was sent
to the Public Analyst by the Food Inspector on
25.08.2004;
(iii) The Public Analyst prepared his report on
29.09.2004;
(iv) The Local Health Authority and Chief District
Medical Officer, Balasore gave his written consent
under section 20(1) of the P.F.A. Act on 07.07.2005
for prosecution of the petitioner;
(v) The prosecution was launched on 11.07.2005.
From the aforesaid chronology of events, it is clear
that even though the report of the Public Analyst was made
ready on 29.09.2004 and it was submitted along with other
necessary documents before the Local Health Authority and Chief
District Medical Officer, Balasore for according written consent
but the written consent to prosecute the petitioner was given
only on 07.07.2005 i.e. after a lapse of nine months. On a plain
reading of the written consent which has been annexed as
Annexure-4 and the documents submitted with prosecution
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report, no reason has been ascribed as to why there was such an
inordinate delay in giving the written consent.
Section 9B of the P.F.A. Rules, 1955 which deals with
Local Health Authority to send report to the person concerned,
inter alia, indicates that Local Health Authority shall within a
period of ten days after the institution of the prosecution,
forward a copy of the report of the result of the analysis in Form
No.III delivered to him under sub-Rule (3) of Rule 7, by
registered post or by hand, as may be appropriate, to the person
from whom the sample of the article was taken by the Food
Inspector and simultaneously also to the person, if any, whose
name, address and other particulars have been disclosed under
section 14A of the P.F.A. Act. After getting the copy of the
report, the person concerned 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
Local Health Authority analyzed by the Central Food Laboratory.
In this case when the Food Inspector was aware that
there would be expiry of the self-life period of the sample
collected within six months from the date of packaging,
immediate step should have been taken after receipt of the
public analyst report for launching the prosecution so that the
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petitioner gets his valuable right of giving his option getting the
sample analyzed by the Central Food Laboratory as prescribed
under section 13(2) of the P.F.A. Act. Since there was inordinate
delay in getting the written consent from the Appropriate
Authority, the prosecution was launched at a belated stage. 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 delay because accused is in no way
prejudiced on the merits of the case on account of such delay.
Whether delay has led to the denial of valuable right conferred
under section 13(2) of the P.F.A. Act depends on the facts of
each case. Even if intimation was given to the petitioner
indicating his valuable right, Mr. Lal is right in his submission
that at that stage, no fruitful result could have come out by
giving the option to get the food sample analyzed by the Central
Food Laboratory as by that time the self-life period of the sample
had expired. The complainant seems to have ignored the time
limit which has been prescribed on the self-life of Dalda
Vanaspati. There is every possibility of change of nature of the
sample collected after the self-life period and submission of
sample for re-analysis by the petitioner would have been a futile
exercise. Therefore, I am of the view that the authorities have
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acted in a callous manner frustrating the valuable right of the
petitioner.
Mr. Lal is also right that the Baudouin test which has
been conducted by the Public Analyst in 2 cm. cell on a Lovibond
scale is also not permissible in view of clause A.19 (x) of
Appendix B to the P.F.A. Rules.
In case of Pepsico India (supra), the Hon'ble
Supreme Court framed, inter alia, one issue for consideration
which is as follows:-
"In the absence of any prescribed and validated
method of analysis under section 23(1A)(hh) of
P.F.A. Act, could a prosecution have been launched
against the appellants based on a report submitted
by the Public Analyst using the method of the
Directorate General of Health Services (DGHS)?"
The Hon'ble Court answered the issue as follows:-
"41. The High Court summarised its view into
several grounds of challenge. Grounds 1 and 2
relate to the non-framing of Rules under Section
23(1A)(ee) and (hh) of the 1954 Act.....
42. As far as Grounds 1 and 2 are concerned,
the High Court was not convinced with the
submission made on behalf of the Appellants
that in the absence of any prescribed and
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validated method of analysis under Section
23(1A)(ee) and (hh) of the 1954 Act, the report
of the Public Analyst, who had used the DGHS
method, could not be relied upon, especially
when even the Laboratories, where the test for
detection of insecticides and pesticides in an
article of food could be undertaken, had not
been specified.
43. The observation of the Division Bench of the
High Court that if the submissions made on
behalf of the Appellants herein were to be
accepted, the mechanism of the Act and the
Rules framed thereunder would come to a
grinding halt, is not acceptable to us, since the
same could lead to a pick-and-choose method to
suit the prosecution.....
44. The High Court also misconstrued the
provisions of Section 23(1A)(ee) and (hh) in
holding that the same were basically enabling
provisions and were not mandatory and could, in
any event, be solved by the Central Government
by framing the Rules thereunder, by which
specified tests to be held in designated
Laboratories could be spelt out. Consequently,
the High Court also erred in holding that the
non-formulation of Rules under the aforesaid
provisions of the 1954 Act could not be said to
be fatal for the prosecution.
xx xx xx xx xx
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47. Both the questions regarding the failure of
the Central Government to frame Rules to define
the Laboratories, where samples of food could
be analysed by the Public Analyst, or to define
the validated methods of analysis and the
liability of the Directors, who are the Appellants
before us, are of great importance for the
purpose of bringing home a charge against the
accused for violation of the provisions of Rule 65
of the 1955 Rules and Section 2(i-a)(h) of the
1954 Act and for holding that the Sweetened
Carbonated Water manufactured by the
Appellants was adulterated in terms of the said
Rules.......The High Court does not appear to
have considered the implications of the failure of
the Central Government to frame Rules for the
aforesaid purpose....."
In view of the law laid down by the Hon'ble Supreme
Court in case of Pepsico India (supra), I am in agreement with
the contention raised by Mr. Lal that no methods of analysis
having been defined under section 23(1A)(hh) of the P.F.A. Act
by the Central Government, the report submitted by the Public
Analyst by following DGHS method of analysis was not proper
and valid in the eye of law.
In view of the foregoing discussions, I am of the
humble view that the case is of an exceptional character and the
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continuance of the criminal proceeding against the petitioner
would result in causing grave prejudice to the petitioner and it
would amount to abuse of process. Therefore invoking my
inherent power under section 482 of Cr.P.C., I quash the
impugned order dated 11.07.2005 passed by the learned
S.D.J.M., Balasore in 2(c) C.C. No.76 of 2005 in taking
cognizance of offence under section 16(1)(a)(i) read with section
2(i-a)(m) and section 7(i)(iv) of the P.F.A. Act and issuance of
process against the petitioner.
Accordingly, the CRLMC application is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 7th May 2018/Sukanta