Gujarat High Court
Pepsico India Holdings Pvt.Ltd. & vs State Of Gujarat & on 6 October, 2017
Author: Mohinder Pal
Bench: Mohinder Pal
R/SCR.A/3251/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 3251 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
==========================================================
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 or any order made thereunder ?
==========================================================
PEPSICO INDIA HOLDINGS PVT.LTD. & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR. BHADRISH S RAJU, ADVOCATE for the Applicant(s) No. 1 - 2
MR PRANAV V SHAH, ADVOCATE for the Respondent(s) No. 2
MS JIRGA JHAVERI APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 06/10/2017
ORAL JUDGMENT
Page 1 of 12
HC-NIC Page 1 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT
1. By this petition under Articles 226 and 227 of the Constitution of India, read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioners seek issuance of an appropriate writ or order or direction for quashing and setting aside, qua the petitioners, the Criminal Complaint under section 16 read with sections 7(1) and 7(5) also read with Sections 2(ia)(a) and 2 (ia)(m) of the Prevention of Food Adulteration Act, 1954 being Criminal Case No. 771 of 2007 pending before the Court of Chief Judicial Magistrate, Jamnagar, as well as the order dated 9.2.2007, ordering issuance of process against the petitioners.
2. Brief facts leading to filing of this case are that the respondent no. 2 - Food Inspector , Jamnagar filed a criminal complaint on 9.2.2007 under section 16 read with sections 7(1) and 7(5) also read with sections 2(ia)(a) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954, alleging inter alia, that on 3.8.2006 the respondent no. 2 purchased 6 bottles of soft drink (Pepsi) of 300 ml from petitioner no. 1. It is alleged by respondent no. 2 that two bottles out of the six bottles of soft drink (Pepsi) were purchased, sealed and sent to the Public Analyst, Vadodara by respondent no. 2 on 4.8.2006 and other four bottles were sealed and sent to the Commissioner, Local Health Authority, Page 2 of 12 HC-NIC Page 2 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT Jamnagar. Vide communication dated 5.9.2006, the report of Public Analyst was received by respondent no. 2 on 6.9.2006, whereby the public analyst has declared that the sample of Pepsi Sweetened Carbonated Water, which is manufactured by the petitioner no. 1 company, does not confirm to standards laid under Prevention of Food Adulteration Act, 1954 because of the presence of coliform count, yeast and mould count value exceeds the prescribed maximum limit which is in violation of sections 7(i) and 7(v) also read with sections 2(ia)(a) and 2(ia)
(m) of the Act, and therefore, respondent no. 2 has lodged the complaint for the offence punishable under section 16 of the Prevention of Food Adulteration Act, 1954.
3. It is submitted by learned counsel Mr. Bhadrish Raju for the petitioner that, the sample of Pepsi having the shelf life of six months from the date of manufacture which starts from 7.7.2006 and ends on 7.1.2007, was taken by the respondent no. 2 on 3.8.2006, the sample was analyzed by the public analyst between 15.8.2006 and 24.8.2006 and the report of analysis was prepared on 5.9.2006. The respondent no. 2 applied to Commissioner, Local Health Authority for sanction for filing impugned prosecution which was accorded on 20.1.2007, pursuant to which, the impugned prosecution was initiated on 9.2.2007. It is submitted that on 9.2.2007, that Page 3 of 12 HC-NIC Page 3 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT is the date on which the complaint was filed, the product in question was not within its shelf life, which ended on 7.1.2007. By virtue of notice under section 13(2) of PFA, the right to re-analyse the sample by Central Food Laboratory is conferred upon the petitioner, but as the sample was well beyond its shelf life, the quality of sample had deteriorated by the time notice was received, thereby vitiating petitioners' right. It is submitted that the challenge to the prosecution is primarily on the grounds that the right of the petitioner company under section 13(2) of the PFA to get the sample of the product re-analyzed by the Director, Central Food Laboratory stands vitiated which is solely attributable to the conduct of the respondent no. 2 by causing unexplained delay in filing the complaint. The issuance of notice under section 13(2) of PFA is valuable right which requires mandatory and strict compliance. The sample product with shelf life of 6 months expired on 7.1.2007 deprived petitioners of their right to re-analyse the sample. The impugned order, while recording the fact of delay in filing of complaint, does not deal with the consequences of such delay and thereby suffers with complete non-application of mind. It was submitted that on account of the delay in lodging the complaint and making the report of the Public Analyst available to the petitioners, the right of the petitioners under sub-section (2) of Page 4 of 12 HC-NIC Page 4 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT section 13 of the Act to get the sample of food article re-analyzed by the Central Food Laboratory, has been denied.
4. Reliance was placed upon the decision of this court in the case of Nestle India Limited, through R. K. Rajput,Manager (Sales) v. State of Gujarat, 2010 JX (Guj) 603 wherein, the court by placing reliance upon the decisions of the Supreme Court in the case of Gupta Chemicals (P) Ltd. v. State of Rajasthan, (2010) 7 SCC 735, and in the case of Northern Mineral Ltd. v. Union of India, (2010) 7 SCC 726, had, in the facts of the said case, observed that 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 a perishable item such as tomato ketchup, would definitely deteriorate after four years. It was only along with the complaint that the analysis report was made available, before which the petitioners had no opportunity to raise any objection with respect to such findings. Following the above referred decisions of the Supreme Court, the court, therefore, quashed the complaint in question. The learned counsel submitted that in the light of the above referred Page 5 of 12 HC-NIC Page 5 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT decisions of the Supreme Court in the case of Gupta Chemicals (P) Ltd. v. State of Rajasthan (supra) and Northern Mineral Ltd. v. Union of India (supra), the complaint in question is required to be quashed.
5. Opposing the petition, Ms. Jirga Jhaveri, learned Additional Public Prosecutor invited attention to the averments made in the affidavit in-reply filed on behalf of the respondent to submit that it was on account of the default on the part of the petitioners that the respondent no. 2 could not obtain the necessary details for lodging the complaint in question and as such, the delay having occasioned on account of the default on the part of the petitioners, they cannot raise any grievance that they have been deprived of their valuable right to re-analyze the sample under section 13(2) of the Act. It was submitted that under the circumstances, the petition does not deserve to be entertained and is required to be rejected.
6. The facts are not in dispute inasmuch as, it is evident on a plain reading of the complaint itself, that the sample of food article came to be collected on 3.8.2006; the report of the Public Analyst was received on 6.9.2006 and the complaint came to be lodged on or about 9.2.2007, after a delay of about six months from the date Page 6 of 12 HC-NIC Page 6 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT of obtaining the sample in question. A perusal of the report of the Public Analyst shows that the shelf-life of the sample of food article was six months from the date of manufacture.
7. At this juncture reference may be made to the decision of the Supreme Court in State of Haryana Vs. Unique Farmaid (P) Ltd, (1999) 8 SCC 195, wherein, in the context of the Insecticides Act, it had been contended that the shelf life of the sample was not relevant as the Insecticides Act does not prescribe any expiry date. The court found no substance in the said contention. It was observed that if the expiry date is not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned.
8. The contention raised on behalf of the petitioners that as the complaint was filed after an unexplained delay, no request for reanalysis could be effectively made by the petitioners under section 13(2) of the Act, as the shelf life of the sample of the food article had already expired and, as such, no purpose would be served by requesting the court to send the matter for re-analysis of sample by the Central Food Laboratory. As held by the Supreme Court in State Page 7 of 12 HC-NIC Page 7 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT of Haryana v. Unique Farmaid (P) Ltd (supra), once the shelf life of the sample of food article has expired, no useful purpose would be served by informing the court of an intention to have the sample analysed by the Central Food Laboratory.
9. In the case of Municipal Corporation of Delhi v. Ghisa Ram, (1967) 2 SCR 116, wherein the article of food was curd and there was a delay in lodging the prosecution. When the sample was received by the Director, he reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible. The Supreme Court held that "the right under section 13(2) is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in Page 8 of 12 HC-NIC Page 8 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT the case of the facts contained therein".
10. In the aforesaid case, the sample in question was a sample of loose curd which does not bear any label indicating the date of manufacture or best before date. However, in a case like the present one where the food article bears a "Use before date", the same bears some significance. Hence, in such a case, where the sample of product is out of "use before date", then it would not be necessary to obtain a certificate of the Central Food Laboratory as to whether or not the sample of food article is capable of analysis. The fact that the shelf life of the sample of the food article has expired would be indicative of the fact that the same is no longer capable of analysis.
11. In Gupta Chemicals Private Limited v. State of Rajasthan (supra), the Supreme Court held that due to sheer inaction on the part of the Inspector, it had not been possible for the appellants therein to have the sample of insecticide examined by the Central Insecticides Laboratory and in the meantime, the shelf life of the sample of insecticide seized, had expired and for that reason no further steps could be taken for its examination and was, accordingly, of the view that continuing the criminal prosecution against the appellant therein would be a futile Page 9 of 12 HC-NIC Page 9 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT exercise and abuse of the process of court. In Northern Mineral Limited v. Union of India (supra), the Supreme Court observed that the statute mandates disclosure of expiry date of the insecticide. The form prescribed for submission of the report of the Insecticide Analyst contains columns for the dates of the manufacture and expiry. Insecticides are substances specified in the Schedule to the Insecticides Act and from perusal thereof it is evident that many of the substances with the passage of time lose their identity if exposed or come into contact with other substance. Therefore, there is no escape from the conclusion that the shelf life of a sample of insecticide shall have its bearing when it is tested or analysed in the laboratory. In the said case, the shelf life of the sample of insecticide had expired even prior to the filing of the complaint. The court, accordingly, held that by sheer inaction, the shelf life of the sample of insecticide had expired and for that reason, no step was possible to be taken for its test and analysis by the Central Insecticides Laboratory. It was held that a valuable right of the appellant therein having been defeated, allowing the criminal prosecution against the appellant to continue shall be futile and abuse of the process of the court.
12. Besides, as observed by the Supreme Court in Page 10 of 12 HC-NIC Page 10 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT the above referred decisions, many of the substances with passage of time may lose their identity, if exposed or come into contact with other substances and, as such, there is no escape from the conclusion that shelf life of a sample of insecticide shall have its bearing when it is tested or analysed in the laboratory. In the case of chemicals and drugs, it would be the efficacy of the chemical or drug that would deteriorate, upon expiry of the shelf life, whereas in case of articles of food, they, by their very nature, are perishable and, as such, susceptible to growth of various microorganisms and insects. Under the circumstances, the decision of the Supreme Court in the case of chemicals and drugs would apply with more vigour to food articles. Sending a sample of a food article for analysis after the expiry of the best before period, therefore, would be an exercise in futility.
13. In the light of the aforesaid discussion, the court is of the view that the complaint having been lodged and consequently, the copy of the report of the Public Analyst having been supplied to the petitioners after the expiry of the "Best before" date stated in the label of the sample of the food article, in other words, after the expiry of the shelf life of the sample of the food article, the petitioners have been deprived of its valuable right under sub-section (2) of Page 11 of 12 HC-NIC Page 11 of 12 Created On Fri Oct 06 23:20:31 IST 2017 R/SCR.A/3251/2011 JUDGMENT Section 13 of the Act of getting the sample of food article re-analysed by the Director, Central Food Laboratory and, as such, the continuance of the criminal prosecution against the petitioners, will be futile and an abuse of the process of court.
14. In the light of the aforesaid discussion, the petition succeeds and is, accordingly, allowed. Criminal Case No.775 of 2007 pending in the court of the learned Chief Judicial Magistrate, Jamnagar as well as the Order dated 9.2.2007, ordering issuance of process, are hereby quashed and set aside, qua the present petitioners. Rule is made absolute accordingly.
(MOHINDER PAL, J.) mandora Page 12 of 12 HC-NIC Page 12 of 12 Created On Fri Oct 06 23:20:31 IST 2017