Andhra HC (Pre-Telangana)
Handi Instant Foods vs State Of A.P. on 15 November, 2006
Equivalent citations: 2007CRILJ1112, 2007 CRI. L. J. 1112, (2007) 50 ALLINDCAS 879 (AP), 2007 (50) ALLINDCAS 879, 2007 (1) FAC 59, 2007 FAJ 30, (2007) 1 CRIMES 745, (2007) 1 FAC 59, 2007 (1) ANDHLT(CRI) 211 AP, 2007 (1) ALD(CRL) 316
JUDGMENT G. Yethirajulu, J.
1. This Criminal Petition has been filed under Section 482 of Cr.P.C. to quash the proceedings in C.C. No. 150 of 2003 on the file of the Judicial Magistrate of First Class, Piler, Chittoor District.
2. The Food Inspector inspected the shop of A 1 and purchased Gulab Jamun Mix sealed packets, which were kept for sale for human consumption. The samples were sent to Public: Analyst and the Analyst, after testing the sample, sent a report opinion that the same is adulterated. After obtaining consent of the Director of Food and Health, Hyderabad, the complaint was filed against the accused including the manufacturer of the Gulab Jamun Mix packets. A notice under Section 13(2) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act') has been issued to the vendor and the manufacturer. After launching of the prosecution, the manufacturer filed the present Criminal Petition to quash the proceedings under Section 482 of Cr.P.C. on the ground that there was abnormal delay in filing the complaint before the Magistrate after receipt of the Public Analyst Report and he was deprived of an opportunity to send the second sample to the Central Government Laboratory for analysis as provided under the Act.
3. The learned Counsel for the petitioner relied on a judgment of this Court in Handi Instant Foods, Chennai v. State of A.P. (Cri. P. No. 2502 of 2003, dated 29-3 2006), wherein the prosecution initiated against the manufacturer was quashed by a learned single Judge of this Court on the ground that there was delay in launching the prosecution. The learned single Judge relied on a judgment of the Supreme Court in Nebh Raj v. The State (Delhi Administration) AIR 1981 SC 611 : 1981 Cri LJ 3, wherein the prosecution was directed to be quashed on the ground that the second sample was sent to the Central Food Laboratory three years after it was taken.
4. After hearing the submissions of the learned Counsel for the petitioner, the learned Judge observed that though notice has been served on the petitioner under Section 13(2) of the Act providing him ample opportunity to get the same tested, no steps have been taken by him. Unless the accused shows some prejudice, the delay itself cannot be a ground to quash the proceedings. Since the learned single Judge in Cri. P. No. 2502 of 2003 came to a different conclusion, the learned single Judge requested that the matter may be placed before a Division Bench for authoritative pronouncement on this aspect, therefore, the criminal petition came up for hearing before this Court to answer the following reference:
Whether the prosecution under the Prevention of Food Adulteration Act can be quashed merely on the ground of delay in filing the complaint without there being any prejudice to the accused.
5. The learned Counsel for the petitioner submitted that under Section 13(2) of the Act, a right has been provided to the petitioner to receive a copy of the report and if he is not satisfied with the report, to submit an application to the Court to send the second sample to the Central Food laboratory for analysis. On account of the delay caused in launching the prosecution, a valuable right guaranteed under Section 13(2) of the Act has been denied causing prejudice to the petitioner, therefore, the prosecution cannot be maintained and it is liable to be quashed. He further submitted that in various judgments rendered by the learned single Judges of this Court, it was held that non-service of notice at the earliest possible time after receipt of the Analyst Report and inordinate delay in filing the prosecution resulted loosing certain ingredients of the food sample, therefore, the food sample is not fit to send it to the Central Food Laboratory. When once the food sample is not fit to send to the Central Food Laboratory or it could not before the expiry period of the sample, the accused is denied a right to get the sample tested that the food sample is not adulterated and in such a case, the Public Analyst Report will not carry any weight and he would have got the benefit of the Central Food Laboratory report and as he is deprived of requesting the Court to send the sample to the Central Food Laboratory due to inordinate delay caused in filing the complaint in the Court, so much prejudice is caused, therefore, he is entitled to get the prosecution quashed. The learned Counsel in support of his contentions relied on the following judgments of this Court and the Supreme Court:
a) In Handi Instant Foods, Chennai v. State of A.P. (Cri. P. No. 2502 of 2003, dated 29-3-2006), a learned single Judge of this Court observed as follows:
The article of food relates to Gulab Jamun. The observation of the Supreme Court in Nebh Raj v. The State (Delhi Administration) and Anr. (supra) is equally applicable to the instant case as sending the second sample of Gulab Jamun after a period of more than two years may not yield accurate result. Therefore, the launching of the prosecution at such a belated stage may achieve no purpose and it would be one of such cases where the offenders may escape punishment, but as observed by the Supreme Court, the delay of more than 2 years is not excusable.
Accordingly, the Criminal petition is allowed and the proceedings in C.C. No. 124 of 2003 are quashed.
b) In R. Asokan v. State of A.P. (Cri. P. No. 2765 of 2003, dated 7-6-2006), a learned single Judge of this Court held as follows:
The Food Inspector lifted the sample of gingelly oil kept in a container. A label was affixed to the container of the oil that it was packed on December, 2000 and best before 30-4-2001. The samples sent to the Analyst were analyzed by him by his report dated 13-3-2001. The said report of the Public Analyst was received by the Food Inspector on 17-3-2001. However, he filed the complaint on 11-11-2002 i.e., nearly-after 20 months after receiving the report. This delay cannot be accounted for nor could be properly explained. This, in my view, has the effect of the accused losing his valuable right for requesting the Court to send the second sample to the Central Food Laboratory, even if Section 13(2) notice has been promptly served on upon the accused. On this ground alone, the petition deserves to be allowed. Accordingly, the proceedings in C.C. No. 130 of 2003 are quashed.
c) In M.T.R. Foods Limited v. State of A.P. (Cri. P. No. 2201 of 2006, dated 19-6-2006), a learned single Judge of this Court observed as follows:
There is a delay of one year three months from serving 13(2) notice on the petitioner to the date of taking the sample by the Food Inspector. There is no explanation from the Food Inspector as to why he took so much time in filing the complaint knowing fully well that the life of the food article has been over by the time of filing the complaint. The indifference on the part of the Food Inspector would clearly indicate that he is not serious in prosecuting the culprits and he was filing the complaints leisurely to show the statistics that he was functioning as Food Inspector. Not only in this case, in many cases Food Inspectors are purposefully causing delay in filing the complaints and unless necessary action is launched against such erring officials, the Act cannot be implemented effectively.
In view of the orders of this Court in Cri. P. No. 2502 of 2003, dated 9-3-2006, the prosecution in S.T.C. No. 268 of 2003 is quashed.
d) In Mahaan Dairies Limited v. State of A.P. represented by the Food Inspector, Srikakulam (Criminal Petition No. 2191 of 2006, dated 12-7-2006), a learned single Judge of this Court held as follows:
had the sample been sent to the analyst report within time, the petitioner would have got a different opinion, thereby it was denied the opportunity of availing the statutory right provided under Section 13(2) of the Act. Therefore, the prosecution is, accordingly, quashed against A-3-manufacturer of the Mahan Ready Mix Instant Milk Powder.
6. The learned Counsel for the petitioner submitted that a learned single Judge rendered the judgment in Mahaan Dairies Limited's case by following judgment of the Supreme Court in Nebh Raj's (1981 Cri LJ 3) (supra), therefore, he submitted that on account of delay in preferring the complaint under the Act and when there is denial of an opportunity under Section 13(2) of the Act, the prosecution has to be quashed, even if there is no prejudice caused to the petitioner.
7. In Nebh Raj's case (supra), the Supreme Court while considering the Section 13(2) of the Act held that though the sample was prima facie adulterated conviction was liable to be set aside as possibility of increase in free fatty and acid content due to oxidation in storage on account of the sample analyzed by the Central Food Laboratory three years after taking the sample.
8. In the case, covered by the above decision, a sample of Dal Biji was collected from the shop of the appellant. It was sent to the Public Analyst and the Analyst reported in October 27, 1970 that the sample was adulterated because of the presence of unpermitted coal tar dye. Thereafter, there was a stalemate for about two years. A complaint was ultimately filed against the appellant on November 13, 1972. On April 17, 1973 the appellant moved the trial Court to send the other sample for analysis to the Director, Central Food Laboratory. It was, accordingly, sent and received by the Director, Central Food Laboratory, Calcutta on May 2, 1973. After analysis, the Director, Central Food Laboratory sent his report on October 26, 1973. According to the report, the sample was adulterated as the vanaspati used in the samples of Dal Biji contained 42.2% of "free fatty acid as oleic acid" as against the permissible limit of 0.25%. The report also disclosed that "added coal tar dyes" were absent. The appellant contended that the free fatty acid content of vanaspati has increased due to natural causes, therefore, the burden is on him to prove the said fact. The Supreme Court further observed that the burden is sufficiently discharged by the very passage of so long a time as three years from the date of taking the sample to the date of the analysis by the Director, Central Food Laboratory. That oxidation due to exposure to air had to the effect of increasing the free fatty acid content of edible fats and oil cannot be disputed. The Supreme Court further observed that the time gap was not such as to justify an inference that the free fatty acid content of the gingelly oil had increased during storage, but held that the time gap is so wide that the free fatty acid content of the sample might have increased storage. Therefore, the appeal was allowed by setting aside the conviction and sentence passed on the appellant by giving the benefit of doubt.
9. Koleti Sadashiv v. State of A.P. 2004 (2) Food Adulteration Cases 255 (AP); S.S. Sujala v. State of A.P. represented by the Food Inspector, Krishnagar, Kurnool District 2002 (2) FAC 83 (AP); M. Chinnachamy v. R. Satyanarayanan 2002 (1) FAC 1 : 2001 Cri LJ 4443 (Mad); Gujarat Narmada Valley Fertilizers Company Limited v. State of Haryana 2002 (1) FAC 151 (P & H) and Shyam Babu v. State of U.P. 1988 (2) FAC 262 (Allah.) were also relied by the learned Counsel for the petitioner in support of his contention that the prosecution is liable to be quashed on account of delay in filing the complaint before the Court.
10. The learned Additional Public Prosecutor submitted that there was a subsequent decision of the Supreme Court giving a different view. Therefore, the prosecution is not liable to be quashed on the ground of delay in filing the complaint before the Court or serving a notice under Section 13(2) of the Act on the accused. In T.V. Usman v. Food Inspector, Tellicherry Municipality the Supreme Court held that Rule 7(3) of the Food Adulteration Rules requiring a copy of the report of result of the analysis to be provided to Local Health Authority within a period of 45 days is directory, but not mandatory. The Supreme Court further observed as follows (Para 14):
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 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 cannot be launched. May be, in agiven 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 cannot be said that even a slight delay would render the report void or inadmissible in law. In this context it must 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 analyzed 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 in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must 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 cannot be a ground for the prosecution case being thrown out.
11. From the above decision, it is clear that Section 13(2) 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 a copy of the report of the Public Analyst to get the samples of food analyzed in the Central Food Laboratory and in case the sample is found by the 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. That 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 in spite of the delay because the accused is in no way prejudice on the merits of the case in respect of such delay.
12. In Gangaiahnaidu Rama Krishna v. State of A.P. 2005 (2) ALD (Cri) 889 (AP), a learned single Judge of this Court held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason.
13. The Prevention of Food Adulteration Act, 1954 was enacted by the Parliament to prevent the adulteration of food. Pure, fresh and healthy food is essential for the health of the people. Adulteration of food stuffs was so rampant, widespread and persistent and as there was need to take a drastic remedy in the form of a legislation, which is the need of the hour, to check this kind of anti-social evil, this Act was enacted to correct and remedy the widespread evil of food adulteration to ensure the sale of wholesome food to the people. It is well settled that wherever possible, without unreasonable stressing and straining in all such statutes should be construed in a manner, which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circulation. As per the various judgments of the Supreme Court, the provisions of the Act are required to be observed in the strict adherence to safeguard the interest of the consumers of the article of food. Stringent laws will have no meaning if the offenders get away on some or the other technicalities.
14. Whenever there is a report of the Analyst that the food article is adulterated, by the date of filing of the complaint, there was prima facie material to show that the accused committed the offence. In order to prove his innocence, it is for the accused to make an application to send the second sample to the Central Laboratory for analysis by exercising his right provided under Section 13(2) of the Act and if the Central Food Laboratory differs with a view of the Public Analyst, the accused can be given the benefit of doubt. If there is a report from the Central Food Laboratory after sending the second sample for analysis that the food sample is not fit for analysis due to lapse of time, the accused is entitled for quashing the proceedings. But, without sending the sample to the Public Analyst either on the ground that there was time gap from the date of collecting the sample and filing the complaint or that the date fixed for using the food article has expired or that the period fixed for "best before" use has been crossed, the accused is not entitled for quashing the proceedings without showing that prejudice has been caused on account of delay caused in filing the complaint and serving the copy of the report of Public Analyst on the accused under Section 13(2) of the Act.
15. For the foregoing reasons, we hold that when a complaint is filed under the Prevention of Food Adulteration Act against the accused for adulteration of food article, the prosecution is not liable to be quashed against him on the ground that he was denied a right under Section 13(2) of the Act for sending the second sample to the Central Food Laboratory for analysis on account of delay caused in filing the complaint and furnishing the Analyst Report to the accused without there being any prejudice caused to him is shown.
16. The Reference is, accordingly, answered.