Allahabad High Court
Daljeet Singh vs State Of U.P. on 19 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:29937 Court No. - 30 Case :- APPLICATION U/S 482 No. - 1700 of 2016 Applicant :- Daljeet Singh Opposite Party :- State of U.P. Counsel for Applicant :- Ratnesh Chandra Counsel for Opposite Party :- Govt. Advocate Hon'ble Om Prakash Shukla,J.
(1) Rejoinder affidavit filed today on behalf of the applicant is taken on record.
(2) This application under Section 482 of Cr.P.C. has been filed by the applicant, Daljeet Singh, seeking the following reliefs:-
"i) quash the order dated 12/02/2016 passed by the Additional Chief Judicial Magistrate-Ist, Lucknow in case no. 3293 of 1999 under Section 7/16 of Prevention of Food Adulteration Act at Police Station Naka, Lucknow.
ii) Quash the entire proceedings of case no. 3293 of 1999 under Section 7/16 of Prevention of Food Adulteration Act Police Station Naka, Lucknow pending in the Court of Additional Chief Judicial Magistrate-Ist, Lucknow.
iii) pass any other suitable order in favour of the petitioner which this Hon'ble Court may deem fit and proper in the circumstances of the case.
iv) allow the present petition/application with costs in favour of the petitioner."
(3) The brief facts of the case are that on 02.06.1999, the Food Inspector, Nagar Nigam had collected a sample of 'Buffalo milk' i.e. 750 ml from the possession of the applicant while selling it in Dairy Mandi situated in Charbagh, Lucknow and accordingly he issued a notice of collecting sample to the applicant. The said sample was sent to the Food Analyst for testing. On receipt of the said sample, the Food Analyst, after analyzing the sample, gave a report on 11.07.1999 opining that milk fat present in the collected buffalo milk was 4.8% and milk solids not fat present in the collected buffalo milk was 9.1% and as such, there is deficiency of 20% fat in the said sample of buffalo as per the prescribed norms. Thereafter, on 26.07.1999, the department had filed a complaint case, bearing Case No. 3293 of 1999, with the allegation of selling below standard milk. Facts further reveal that, the applicant had filed an application dated 16.03.2000 under Section 13 (2) of the Prevention of Food Adulteration Act, seeking further analysis of the aforesaid samples by the Director, Central Food Laboratory, which was allowed by the trial Court on 22.11.2000.
(4) It is contended by the learned Counsel of the applicant that the aforesaid order of trial Court dated 22.11.2000 had attained finality. Further, in pursuance of the order dated 22.11.2000, the sample of milk was submitted by the Chief Medical Officer on 25.01.2001, however the same was sent to the Central Food Laboratory vide letter dated 11.07.2008 for test/analysis of the said sample of milk i.e. after about eight years. In any case, the Director, Central Food Laboratory, Mysore, vide report dated 22.07.2008, informed the trial Court that on opening of the registered parcel dated 11.07.2008, the sample bottle was found broken and contents therein were completely spilt out/decomposed, therefore, other part of the sample for carrying out analysis and reporting thereof was requested by the Central Food Laboratory. According to the applicant, pursuant to the aforesaid report dated 22.07.2008, other sample has not been sent by the trial Court till date to the Central Food Laboratory. In this backdrop, the applicant has preferred an application for discharge/dropping of proceedings dated 08.07.2009 on the grounds that the sample of the said milk was sent by the trial Court to the Central Food Laboratory for further analysis and the Director, Central Food Laboratory through his certificate/ report informed that the sample of the said milk had decomposed and was not fit for analysis and as such, according to the applicant, since the prosecution is responsible for delay, valuable rights conferred upon the applicant under Section 13 (2) of Prevention of Food Adulteration Act has been denied and therefore, serious prejudice has been caused to the applicant. It is the case of the applicant that although, there were cogent grounds for his discharge, however, the learned trial Court has dismissed the application for discharge of the applicant vide order dated 12.02.2016. It is this order dated 12.02.2016, which has been assailed by the applicant in the present application including the entire proceedings of Case No. 3293 of 1999.
(5) Shri Ratnesh Chandra, learned Counsel appearing for the applicant highlighted before this Court the provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'PFA Act') to submit that a valuable right has been conferred upon the accused that if he or they so desire, any of them can make an application to the Court to get another sample of the article of food analyzed by the Central Food Laboratory (hereinafter referred to as 'CFL'). He also highlighted that under sub-section (3) of Section 13 of the PFA Act, the certificate issued by the Director of the CFL in terms of sub-section (2B) supersedes the report of the Public Analyst under sub-section (1) of Section 13 of the PFA Act. According to the learned Counsel, the applicant was not provided the copy of the notice under Section 13 (2) at the relevant point of time, however, as soon as the same was made available to him, he moved an application dated 16.03.2000 for sending the other sample for a further analysis by the Director, CFL, which was allowed by the trial Court on 29.11.2000 observing that the application was presented within the specified time i.e. immediately after receipt of notice under Section 13 (2) of PFA Act and also copy of report of Public Analyst. Vide order dated 29.11.2000, the trial Court also directed for sending the other samples to the CFL. The CFL, vide its report dated 22.07.2008, requested from the Trial Court that as the sample bottle was found broken and its content completely spilt-out, therefore, requested for sending the other part of the sample to CFL for carrying out analysis and reporting thereof. However, the third sample could not have been sent as the trial Court found on 25.09.2008 after physically examining the third sample that the bottle is completely damaged and there is no product inside the said bottle..
(6) In this backdrop, submission of the learned Counsel for the applicant is that in terms of Section 13 (3) of the PFA Act, the valuable right of the applicant has been curtailed, therefore, in such circumstances, the report of Public Analyst has lost its sanctity and the applicant is entitled for the benefit as is provided under Section 13 (3) read with Section 13 (2) of the PFA Act. Learned Counsel, therefore, has submitted that when there is no report under Section 13 (3) of the PFA Act, no reliance can be placed so far as the report of Public Analyst is concerned, hence the applicant is liable to be discharged. It is thus submitted for and on behalf of the applicant that although, he placed all these relevant issues before the trial Court but without appreciating the same in correct perspective, the trial Court has rejected the prayer of the applicant for discharge on the ground that even though assuming that the CFL had found the said sample unfit for testing, on that basis alone, the offence under which the applicant has been charged cannot be considered false and baseless as prima facie there appears to be negligence on the part of the accused.
(7) Learned AGA, on the other hand, has submitted that as per provisions of Section 13 (2) of PFA Act, after the report of public analyst has been sent to the accused, within 10 days of receiving the report, the accused can submit an application in the Court to the effect that he is not satisfied with the report of public analysis and can apply to the trial Court to re-send the sample for analysis to the CFL. However, while presenting the application under Section 13 (2) of the PFA Act on 16.03.2000 on behalf of the accused, it was stated that he had no knowledge of the report of the public analyst and the allegations leveled against him are baseless, which is incorrect as the report of the Public Analyst is dated 11.7.1999 and the charge sheet was presented in this case, of which cognizance was taken on 29.07.1999. The accused appeared in the Court on 14.10.1999 and got his bail. Therefore, on the day of getting bail, it can be assumed that the applicant was very well aware that a case has been registered against him on the basis of the report of the public analyst. Thus, according to him, within 10 days after 14.10.1999, application under section 13 (2) PFA Act should be submitted to the accused. However, in the present case, since the application in question has been submitted by the accused only on 16.03.2000, which is definitely not submitted as per the provisions of the PFA Act but has been submitted with extreme delay. Therefore, the trial Court has rightly rejected the application for discharge.
(8) Having regard to the learned Counsel for the parties and going through the record, this Court finds that the PFA Act lays down an elaborate procedure after the report of the Public Analyst is delivered. Section 13 of the PFA Act which deals with the procedure is as under:-
13. Report of public analyst-(1) The pubic 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 submitting 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 person from whom the sample of the article of the food was taken and the person, if any, whose name, address and other particulars have been disclosed u/s 14-A, forward, in such manner as may be prescribed, a copy of the report 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.
(2-A) When an application is made to the Court under Sub-section (2), the Court shall require the Local (Health) Authority to forward the part or part of the sample kept by the said Authority and upon such requisition being made the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition.
(2-B) On receipt of the part or 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.
(2-C) Where two parts of the sample have been sent to the Court and only one part of the sample has been sent by the Court to the Director of the Central Food Laboratory under Sub-section (2-B), the Court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has received by the Court:
Provided that where the part of the sample sent by the Court to the Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any retain by it to the Court and on receipt thereof, the Court shall proceed in the manner provided in Sub-section (2-B).
(2-D) Until the receipt of the Certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution.
(2-E) If, after considering the report, if any, of the food inspector or otherwise the Local (Health) Authority is of the opinion that the report delivered by the public analyst under Sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other pubic analyst for analysis and if the report of the result of the analysis of that part of sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of Sub-sections (2) (2-D) shall, as far as may be, apply.] (3) The certificate issued by the Director of the Central food Laboratory [under Sub-section (2-b)] shall supersede the report given by the public analyst under Sub-section (1).
(4) Where a certificate obtained from the Director of the Central Food Laboratory [under Sub-section (2-b)[ is produced in any proceeding under this Act, or under Sections 272 to 276 of the Indian Penal Code, 1860 (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.
(5) Any document purporting to be report signed by a public analyst, unless it has been superseded under Sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Indian Penal Code, 1860 (45 of 1860).
Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to Sub-section (1-A) of Section 16] shall be final and conclusive evidence of the facts stated therein.
Explanation-In this section and in Clause (f) of Sub-section (1) of Section 16, "Director of the Central Food Laboratory" shall include the officer for the time being in- charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section."
(9) A bare perusal of the aforesaid section would clearly reveal that according to sub-section (2-A) of the PFA Act, when an application is made to the Court under sub-section (2), the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition. Furthermore, once the said sample has been received by the Court, the Court shall ascertain that the mark and seal are intact and are not tampered with. According to Sub-section (2-B), it is the duty of the Court to dispatch the said sample to the Central Food Laboratory who shall send their report back to the Court within a period of one month. Thus, a duty is imposed upon the Court to send the sample to the Central Food Laboratory. The law does not expect the accused to deposit any amount of money for sending the sample to the Central Food Laboratory. In fact, the law imposes a legal duty on the Court to send the sample on its own without charging any money from the accused. It, further, imposes a duty on the Court not to proceed further in the trial until the report is received from the Central Food Laboratory. It is, indeed, trite to state that Section 13 of the Act bestows a right on the accused to get the sample of the alleged adulterated food analyzed independently from the Central Food Laboratory. The certificate of the CFL gains predominace over the report of the Public Analyst, as is apparent from Sub-section (3) of Section 13 of the Act, which says that the Certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the public analyst under sub-section (1). Since Section 13 bestows a right on the accused, the right cannot be made illusory.
(10) As to the significance of the procedure prescribed under section 13 of the PFA and the rights accrued in favour of the Accused, the Hon'ble Supreme Court in the matter of M/s Alkem Laboratories Ltd. v. State of Madhya Pradesh, (2022)1 SCC (Cri.) 174, laid down a very distinctive steps, which analysis the provisions of section 13, in the following manner:
"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)"
(11) In the present case, sample of buffalo milk was collected on 02.06.1999 and the same was sent for testing. The public analyst had submitted its report on 11.07.1999. The department had filed complaint on 26.07.1999. On 16.03.2000, applicant filed an application under Section 13 (2) of PFA Act for re-testing of the sample from CFL, on which the trial Court, vide order dated 22.11.2000, directed the Chief Medical Officer to transmit the conserved sample, in pursuance of which, the Chief Medical Officer had transmitted the conserved sample to the trial Court on 25.01.2001 and the same was forwarded to CFL, Mysore for analysing on 11.07.2008.
(12) Considering the aforesaid admitted facts, what this Court finds that the conserved Sample was lying before the prosecution between 25.01.2001 to 11.07.2008 i.e. about eight years, meaning thereby by causing inordinate delay in launching the prosecution against the petitioner , the petitioner was deprived of his valuable right under section 13 of the Act to get the sample analyzed from the Central Food Laboratory within the best use period of the milk in question as such a right accrues only after the prosecution is launched. Even if it is believed for the sake of argument, that a copy of the report of the public analyst was sent to the petitioner and he was issued notice in terms of section 13 (2) in that case also the right of getting the article analyzed by the Central Food Laboratory was rendered meaningless as analysis of the sample after the expiry of the period of its best use could not have served the purpose enshrined in this valuable right of the accused.
(13) The record further reveals that on receipt of the said conserved sample,the CFL, Mysore, vide its report dated 22.07.2008, has immediately reported to the Additional Chief Judicial Magistrate, Lucknow as under :-
"On opening of registered parcel No. 1179 dated 11.07.2008, the sample bottle was found broken and contents completely spilt out. Hence the Hon. Court is requested kindly to send the other part of the sample for carrying out analysis and reporting thereof. The specimen seal impression of the seal used by the Hon. Court in sealing the container and cover may also kindly be sent separately by registered post."
(14) On receipt of the aforesaid report dated 22.07.2008, the trial Court directed the Chief Medical Officer on 05.08.2008 to transmit the third conserved sample to the Court. In compliance of the same, the Chief Medical Officer had sent third conserved sample to the Court on 25.09.2008, however, the trial Court, on physical verification of the sample, found that plastic bottle was torn and there was no substance in it. In such circumstances, according to the Counsel for the State, the trial Court opined that there was no occasion to send the said sample for testing and as such torn plastic bottle was returned to the office of Chief Medical Officer.
(15) From the aforesaid facts, apparently, the trial Court is proceeding in the matter in contravention of the provisions of PFA Act merely on placing reliance upon the PFA Act, which lost its sanctity after allowing the application filed by the petitioner under Section 13 (2) of the PFA Act of which confers a valuable right in favour of the petitioner.
(16) In Municipal Corporation of Delhi v. Ghisa Ram : AIR 1967 SC 970, the Apex Court has held that where inordinate delay in instituting prosecution has resulted in denial of the right under Section 13(2) of PFA Act, 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. In Girishbhai Dahyabhai Shah v. C.C. Jani : (2009) 15 SCC 64, the Apex Court affirmed that a delay in sending a report of the Public Analyst to the accused, such that he is no longer in a position to apply for re-testing under Section 13(2) of the PFA Act, would entitle quashing of criminal proceedings under Section 482 of the Cr.P.C.
(17) Herein, it is an admitted position that second sample sent by the trial Court for testing in CFL was not in a condition for re-testing as reported by the CFL itself to the trial Court. Further, third sample were also not found to be sent for re-testing to CFL on account of the fact that there was no substance in the plastic bottle sent by the Chief Medical Officer. Thus, there was no compliance of Section 13 (2) of the PFA Act. In such facts and circumstances of the case and in view of Section 13 (3) of the PFA Act, this Court is of the opinion that there is a flaw in effective implementation of the provisions of PFA Act on the part of the department, particularly the local authority i.e. Chief Medical Officer who did not keep the samples in a safe custody in terms of the provisions of PFA Act.
(18) The impugned order passed by the trial Court shows that the finding of the trial Court is almost in a side tracking leaving the crux of the case and the trial Court has not answered to the failure of the local Health Authority to keep third sample in a safe custody for being analyzed by the Central Food Laboratory so as to give the applicant to counter check the report of the public analyst. The trial Court did not also see that there was no prima facie case against the applicant without the presence of authentic report and therefore, the order passed by the trial Court is liable to be interfered, particularly the fact that in this case also the action against the petitioner has been vitiated by inordinate delay in launching the prosecution and thereby depriving him of his valuable right under section 13 of the Act.. The view taken by this Court in this case gets support from a judgment of this Court in the case of Girishbhai Dahyabhai Shah v. C.C. Jani and Anr. (Supra) though rendered in a different factual matrix.
(19) For the foregoing discussion, impugned order passed by the trial Court in disallowing the claim of the applicant for discharge from the complaint filed against him in Case No. 3293 of 1999, is hereby set-aside and consequently the application filed by the applicant before the trial Court to discharge him from the complaint case No. 3293 of 1999 is allowed. The complaint and prosecution against the petitioner are quashed.
(20) The present application stands allowed.
(Om Prakash Shukla, J.) Order Date :- 19.5.2025 Ajit/-