Expiry of the "Best Before" date or the shelf life of the product
would only enable a manufacturer to disclaim liability regarding the
marketability and the specific qualities of the product. Expiry of the shelf
life would not automatically render the sample unfit for analysis.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 1821 of 2002
with
CRIMINAL MISC.APPLICATION NO. 1822 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
PEPSI CO. INDIA HOLDINGS LTD
THRO'ITS OFFICER VINAY MATHUR & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :11/12/2014
Citation: 2015GLH(2)556, (2015)2GLR1183
Since the challenge in both the captioned applications is to a selfsame
complaint, those were heard analogously and are being disposed of by this
common judgment and order.
1. The applicants (original accused) have filed these applications under
Section 482 of the Code of Criminal Procedure,1973 (for short “the Code”)
invoking inherent powers of this Court praying that the complaint being Food
Adulteration Case no.55/2000 pending in the Court of the Judicial Magistrate
First Class (Municipal), Surat, be quashed.
2. It appears from the materials on record that one A.S. Licencewala, a Food
Inspector serving with the Surat Municipal Corporation lodged a private
complaint in the Court of the JMFC (Municipal), Surat against 12 accused of the
offence punishable under Sections 7 and 16 of the Prevention of Food
Adulteration Act, 1954.
3. The accused no.1 in the complaint is the Wholesaler carryingon business
in the name of the Kamal Enterprise and the accused no.2 is the Sales Manager
of the accused no.1. The accused no.3 is a Cold Storage firm and the accused
nos.4 to 9 are the partners of the accused nos.1 and 3 firms. The accused no.10
is a company who manufactures the product of aerated water like Pepsi, 7UP,
Miranda, Slice etc. The accused no.11 is the nominee of the accused no.10
company.
4. It appears that on 29th November, 1997 the complainant visited the firm
of the accused no.1 and at that point of time the accused no.2 was present and
was selling the products manufactured by the accused no.10 like Pepsi, 7up,
Miranda etc. The complainant wanted to draw a sample for the purpose of
analysis and therefore, he called one person, namely, Rajubhai C. Thakkar as a
panch witness. The complainant collected six bottles of 500 ml. of printed
crown of Laher Pepsi and the same were sealed and packed and thereafter were
sent for analysis. The complainant received the report from the Public Analyst
dated 8/1/1998 certifying that the product was found to be adulterated. The
Public Analyst certified that the aerated water had excessive impurity in the
form of Floated Faculent Gelatin.
5. It appears that on receipt of the Public Analyst report the complainant
applied for sanction under section 20 of the Act for the purpose of filing
complaint against the accused persons. The Surat Municipal Corporation
accorded sanction dated 15th June, 2000 as prayed for by the complainant and
thereafter on 18th September, 2000 the complaint was lodged in the Court of
the JMFC (Municipal), Surat.
6. The learned JMFC vide order dated 18th September, 2000 took
cognizance upon the complaint and ordered issue of bailable warrant of
Rs.3,000/ against each of the accused of the offence punishable under Sec. 16
r/w sec. 7 of the Act, 1954.
7. The Misc. Criminal Application No.1821/2002 is filed by the original
accused nos.10 and 11 i.e. Pepsi Cola India Holdings Ltd., the manufacturer of
the aerated water and its nominee. Whereas the Misc. Criminal Application
No.1822/2002 is filed by original accused nos.1 to 9 i.e. the Wholesaler, Sales
Manager, Cold Storage as a partnership firm and the partners of the partnership
firm.
8. It also appears from the materials on record that the applicants of Misc.
Criminal Application No.1822/2002 had filed an application for
discharge/dropping of the proceedings before the learned Magistrate vide
application Exh.67, however, the said application was ordered to be rejected
vide order dated 21st April, 2001. Against the said order the accused Nos.1 to 9
had filed Criminal Revision Application No.56/2001 and the said revision
application was also ordered to be rejected vide order dated 28th January, 2002.
9. Submissions on behalf of the Petitioners :
9.1 Mr.Bhadrish Raju, the learned advocate appearing on behalf of the
applicants vehemently submitted that there has been a gross delay in filing the
complaint as the samples were drawn on 29th January, 1997 and the Public
Analyst report is dated 8th January, 1998, He submits that the complaint was
filed on 18th January, 2000 i.e. nearly almost after 3 years from the date of
drawing of the samples. He submits that on such ground alone the complaint
deserves to be quashed. Mr.Raju further submits that the product in question
was manufactured on 15th October, 1997 and the notice for reanalysis,
mandatorily required under Sec. 13(2) of the Act is dated 21st September, 2000.
He submits that the product was three years old when the accused persons were
asked to exercise their right of getting the sample reanalyzed through the
Central Foods Laboratory. He submits that the reanalysis of the sample after a
period of three years would be nothing but an exercise in futility.
9.2 Mr. Raju's main bone of contention is that the right of the accused
conferred under Section 13(2) of the Act to get the sample of the product “Laher
Pepsi” reanalysed through the Central Food Laboratory was frustrated on
account of gross delay on the part of the complainant in filing of the complaint.
9.3 Mr.Raju submits that the date of manufacture was well within the
knowledge of the respondent no.2 and was duly noted by him in FormVI that is
issued to the Vendor at the time of the sampling of the product. The respondent
no.2 in the said FormVI had noted the label in detail, but the “Best Before” had
not been noted where as the sampled product was Best Before 6 months from
the date of manufacture.
9.4 He submits that the products such as the Sweetened Carbonated Water
are best before 6 months from the date of manufacture only. In the present case
since the date of manufacture of product is 15th October, 1997 it could be said
to be Best Before only till 15th April, 1998.
9.5 Mr.Raju also submitted that the report of the Central Food Laboratory
noted Yeast and Mould Count/Ml.725 as against 2. The report of the Public
Analyst is silent so far as the contents noted by the Central Food Laboratory is
concerned.
9.6 Mr.Raju has placed strong reliance on a decision of the Supreme
Court in the case of Girishbhai Dahyabhai Shah Vs. C.C.Jani & another reported
in (2009) 15 SCC 64. He has also placed reliance on the decision of the
Supreme Court in the case of Northern Minerals Ltd., Vs. Union of India &
another – (2010) 7 SCC 726. The decision of the Supreme Court in the case of
Northern Minerals (Supra.) is relating to the provisions of the Insecticides Act,
1968.
10. Submissions on behalf of the complainant :
10.1 Mr. Vishwas Shah, the learned advocate appearing on behalf of the
complainant, has vehemently opposed this application submitting that the delay
in granting of sanction was due to the fact that at the relevant time i.e. from
June, 1998, the power to accord sanction was delegated to the Medical Health
Officer, Surat Municipal Corporation, however, the Medical Health Officer was
suspended from his service in the month of September, 1998 and thereafter, the
power was not delegated to any other officer during that period. Later on the
power to accord sanction under the Act was delegated to the Deputy
Commissioner, Health & Hospital, Surat Municipal Corporation, in the month of
February, 2000. After the delegation of the power, the sanction was accorded in
the present case and accordingly the complaint was lodged on 18th September,
2000.
10.2 Mr.Shah submits that the delay, if any, is no ground for quashing the
complaint, more particularly when the Central Food Laboratory has certified the
sample as fit for analysis and certified that the sample was adulterated.
10.3 Mr. Shah submits that once the Central Food Laboratory found the
sample fit for analysis and was found to be adulterated, the principal argument
canvassed on behalf of the accused regarding prejudice should fail. Mr.Shah
submits that Sec. 20A of the Act can be pressed into service only when the
offence under the Act is alleged to have been committed by any person not
being a manufacturer, distributor or dealer of any food. In such circumstances,
if a person who is the manufacturer, distributor or dealer of food, commits the
offence under the Act then it could not be said that having regard to the
embargo under Sec. 20A of the Act, they cannot be impleaded as accused.
10.4 Mr. Shah in support of his submissions has placed reliance on the
following decisions :
i) Gangaihnaidu Ramakrishna & Ors. Vs. State of A.P. Represented by Food
Inspector DivisionII –MANU/AP/1110/2005.
ii) Hyderabad Beverages Pvt. Ltd., etc. Vs. State of A.P.
2006 Cri. Law Journal 3988
11. Having heard the learned counsel appearing for the parties and having
gone through the materials on record, the only question that falls for my
consideration is whether the complaint should be quashed.
12. Before adverting to the rival submissions canvassed on either sides, I
deem it necessary to look the into few relevant provisions of law.
"14. Section 2(ia) of the Prevention of Food Adulteration Act, 1954 defines
'adulterated' to mean :
"(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;
(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 insectinfested
or is 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, 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 quality 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 subclause.
Explanation Where two or more articles of primary food are mixed
together and the resultant article of food
(a) is stored, sold or distributed under a name which denotes the
ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be
deemed to be adulterated within the meaning of this clause."
15. Under Section 7, no person shall himself, or by any person on his
behalf, manufacture for sale, or store, sell or distribute any adulterated
food. Section 8 empowers the Central and State Governments to appoint
Public Analysts. Section 11 prescribes the procedure to be followed by Food
Inspectors while taking samples of food for analysis. Section 13 relates to
the report of the Public Analyst. Under subsection (1) thereof, 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. Under subsection (2), on receipt of the
report of the result of the analysis under subsection (1), to the effect that
the article of food is adulterated, the Local (Health) Authority shall, after
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 10 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.
Under subsection (2A), when an application is made to the Court under
subsection (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 such requisition. Under subsection (2B), on receipt of the part
or parts of the sample from the Local (Health) Authority, the Court shall
after ascertaining that the mark and seal are intact and not tampered
with, dispatch the part 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. Under subsection (2D), until 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 before it in relation to the prosecution. Section 13(3) provides
that the certificate issued by the Director of the Central Food Laboratory,
under subsection (2B), shall supersede the report given by the public
analyst under subsection (1). Under Section 14, no manufacturer or
distributor of, or dealer in any article of food shall sell such article to any
vendor, unless he also gives a warranty in writing in the prescribed form
about the nature and quality of such article to the vendor. Proviso
thereunder prescribes that a bill, cash memorandum or invoice in respect
of the sale of any article of food given by a manufacturer or distributor of,
or dealer in, such article to the vendor thereof shall be deemed to be a
warranty. Section 14A requires every vendor of an article of food, if so
required, to disclose to the food inspector the name, address and other
particulars of the person from whom he purchased the article of food.
16. Rule 2(d) of the Prevention of Food Adulteration Rules, 1955
(hereinafter referred to as the "Rules"), defines 'Form' to mean a Form set
forth in Appendix A to the Rules. Rule 4 relates to analysis of food samples
and reads thus :
"Analysis of food samples :
(1)(a) Samples of food for analysis under subsection (2) of Section 13 of
the Act shall be sent either through a messenger or by registered post in a
sealed packet, enclosed together with a memorandum in Form I in an
outer cover addressed to the Director.
(b) Samples of food for analysis under subsection (2) of Section 6 of the
Act or under clause (a) of Rule 3 shall be sent either through a messenger
or by registered post in a sealed packet enclosed together with a
memorandum in Form 1A in an outer cover addressed to the Director.
(2) The container as well as the outer covering of the packet shall be
marked with a distinguishing number.
(3) A copy of the memorandum and a specimen impression of the seal
used to seal the container and the cover shall be sent separately by
registered post to the Director.
(4) On receipt of a package containing a sample for analysis the Director
or an officer authorized by him, shall compare the seals on the container
and the outer cover with specimen impression received separately and shall
note the condition of the seals thereon.
(5) After test or analysis, the certificate thereof shall be supplied forthwith
to the sender in Form II.
(6) The fees payable in respect of such a certificate shall be "Rs. 1000" per
sample of food analysed.
(7) Certificates issued under these rules by the Laboratory shall be signed
by the Director.
(8) The fee payable in respect of analysis of samples of imported food
analysed in any designated laboratory shall be Rs. 3000 per sample
payable by the importer."
17. Rule 5 provides that the standards of quality of the various articles of
food specified in AppendixB to the Rules are as defined in that appendix.
Rule 6 prescribes the qualification of a Public Analyst and Rule 7, which
prescribes the duties of a Public Analyst, reads thus :
"Duties of public analyst :
(1) On receipt of a package containing a sample for analysis from a Food
Inspector or any other person the public analyst or an officer authorised by
him shall compare the seals on the container and the outer cover with
specimen impression received separately and shall note the condition of the
seals thereon. Provided that in case sample container received by the public
analyst is found to be in broken condition or unfit for analysis he shall
within a period of seven days from the date of receipt of such sample
inform the Local (Health) Authority about the same and send requisition
to him for sending second part of the sample.
(2) The public analyst shall cause to be analysed such samples of articles
of food as may be sent to him by Food Inspector or by any other person
under the Act.
(3) The public analyst shall, within a period of (forty days) from the date
of receipt of any sample for analysis, (send by registered post or by hand)
to the Local (Health) Authority a report of the result of such analysis in
Form III : Provided that where any such sample does not conform to the
provisions of the Act or these rules, the public analyst shall (send by
registered post or by hand) four copies of such report to the said
Authority : Provided further that the public analyst shall forward a copy of
such report also to the person who purchased an article of food and
forwarded the same to him for analysis under Section 12 of the Act.
Note : In case of sample received under the proviso of Rule 7(1) or Rule 9
A, the period of forty days shall be counted from the date of receipt of the
second part of the sample."
18. Rule 9A relates to sending of samples by Local (Health) Authority,
and reads thus :
"9A. Sending of sample by Local (Health) Authority :
(a) Local (Health) Authority shall within a period of seven days of receipt
of requisition for second part of the sample from public analyst under the
proviso of Rule 7(1), send such sample to the public analyst.
(b) Local (Health) Authority, while sending second part of the sample
under the provision of subsection (2E) of Section 13 of the Act, shall do
so within a period of 20 days from the date of receipt of the report from
the first public analyst ."
Rule 12 provides that the notice of intention to take sample for analysis
should be given in Form VI. Rule 12A relates to warranty and thereunder
every manufacturer, distributor or dealer selling an article of food to a
vendor shall give either separately or in the bill, cash memo or a label a
warranty in Form VIA. Rule 14 prescribes the manner of sending the
sample for analysis. Rule 22 relates to the quantity of the sample.
13. As noted above Appendix A contains the forms. Form II is the certificate
of analysis by the Central Food Laboratory, under Rule 4(5) and reads as under :
Form II
(See Rule 4(5))
(Certificate of analysis by the Central Food Laboratory)
Certificate No.....................
Certified that the sample bearing number.......................... purporting to
be a sample of...................... was received on............................. with
Memorandum No. .................. dated............................
from............................. (name of the Court)........................ for analysis.
The condition of seals on the container and the outer covering on receipt
was as follows :
.....................................................................
I......................... (name of the Director)........................... found the
sample to be........................ (category of the food sample).......................
falling under Item No................................... of *Appendix B of Prevention
of Food Adulteration Rules.
1955/*proprietary food. The sample was in a condition fit for analysis
and has been analysed on......................... (Give date of starting and
completion of analysis) ................... and the result of its analysis is given
below/*was not in a condition fit for analysis for Reasons :
Analysis Report :
(i) Sample Description :
(ii) Physical Appearance :
(iii) Label :
Sr. No.Quality Name of Method Result Prescribed Standards as
per :
Characteristics of test used (a) Item A of Appendix 'B'
(b) As per label declaration for proprietary foods
(c) As per provisions of the Act and Rules, for both above.
1.
2.
3.
4.
5.
6.
Opinion**
(Signature)
Place : Director
Date : Central Food Laboratory (Seal)
20. It is necessary to note that Form II was substituted by G.S.R. No. 530
(E) dated 2972002 with effect from 2912003. Under Form II the
Central Food Laboratory is, among others, required to certify as to
whether the sample was in a condition fit for analysis or was not fit for
analysis. Where a sample is not in a condition fit for analysis, the reasons
therefore are also required to be stated in the certificate.
14. Since the learned counsel appearing for the accused has also placed
reliance on the provisions of the Insecticides Act, 1968, I may look into few of
the relevant provisions of the Act. Sec.24(3) and (4) of the Act reads as
follows :
"Sec.24. Report of Insecticide Analyst
3. Any document purporting to be a report signed by an Insecticide Analyst
shall be evidence of facts stated therein, and such evidence shall be
conclusive unless the person from whom the sample was taken has within
twentyeight days of the receipt of a copy of the report notified in writing
the Insecticide Inspector or the Court before which any proceeding in
respect of the sample are pending that he intends to adduce evidence in
contravention of the report.
4. Unless the sample has already been tested or analyzed in the Central
Insecticides Laboratory, where a person has under subsection (3) notified
his intention of adducing evidence in contravention of the insecticide
analysts report the Court may, of its own motion or its discretion at the
request either of the complainant or of the accused, cause the sample of the
insecticide produced before the Magistrate under subsection (6) of Sec. 22
to be sent for test or analysis to the laboratory, which shall make the test
or analysis and report in writing signed by, or under the authority of, the
Director of Central Insecticides Laboratory the result thereof, and such
report shall be conclusive evidence of the facts stated therein."
15. I may now look into the two reports, one of the Public Analyst and the
other of the Central Food Laboratory.
FORM II
(Certificate of test or analysis by the Central Food Laboratory, Calcutta)
Certificate No. G.141/2000(Pt.
Certified that the sample (s), bearing number 3/MDH & LHA/SMC/J1_8
(as on label) purporting to be a sample of Laher Pepsi received on 4.12.00 with
Memorandum No. 424/2000 dated 24.11.2000 from Shri P. H. Gohil,
Judicial Magistrate, 1st Class, Municipal Corporation, Surat was in a condition
fit for analysis and have been tested/analysed and that the result/ results of
such test(s)/analysis is/are stated below :
(i) Physical Examinations (including label declarations) : 500ml sample of
Laher pepsi is in a sealed glass bottle with label declaration.
Total plate count/ml. : 45
Colaform count/100 ml : Absent
Yeast & mould count/ml : 725
Test for Carbon dioxide : Positive
Total Sugar (expressed as Sucrese) : 9.8%
Artificial Swetteners (Saccharin, acesulfame & Aspertame) :
Absent
Caffeine : 112.23 ppm
Added colour : Absent
Opinion: The sample of Laher Pepsi is adulterated.
2. The condition of the seals on the container and the outer covering on receipt
was as follows :
The seals were intact and tallied with the specimen impression of seals
separately along with copy of the memorandum.
Place : CALCUTTA. Sd/ (illegible)
( Dr. __ Chakrabarti)
Date: Director
Central Food Laboratory, Calcutta
S.M.C._______________001095
SURAT MUNICIPAL CORPORATION
Report by the Public Analyst
Report No. PHL/ J132/9798
I hereby certify that I, Shri R. M. Ray M.Sc. Technical Assistant, Public
Health Laboratory, Surat Municipal Corporation, Public Analyst for Surat
Municipal area, duly appointed under the provision of the Prevention of Food
Adulteration Act, 1954, received on the 1st day of December 97 from Food
Inspector, Surat Municipal area Shri A. S. Lincewala a sample of Lahar Pepsi –
Sweetend Carbonated Beverages being code number and serial number 3/M. O.
H. & L.H.A./ S.M.C./ ______J/130 ____of Local Health Authority,
Place of collection : Surat City Area.
For analysis, properly sealed and fastened and that I found the seal intact
and unbroken.
The seals fixed on the container and the outer cover of the sample tallied
with the specimen Impression of the seal separately sent by the food Inspector
and the sample was in a condition fit for analysis.
I further certify that I had caused to be analyzed the afore mentioned
sample, and declare the result of the analysis to be as follows :
Result of Analysis P. F. A. limits.
Macroscopy: Sealed bottles of 500 ml. capacity
floating impurity in abundance in
the form of flocullent gelations
particles.
Artificial Swettening Agent…. Absent Absent
Colour ………………….. Permitted food colour Permitted food colour
Present. May be used.
Total Sugar ………………. 9.7% …….. 5% (Min.)
(expressed as Sucrose)
(The slip of Local Health Authority and the Signature of the vendor on
the wrapper of the container were as per rules)
and I am of the opinion that the sample of Lahar Pepsi Sweetend Carbonated
Beverages does not confirm to the provisions laid down under Prevention of
Adulteration Act 1954 & is adulterated according to Rule 2(ia) (e) Definitions.
Signed this 8th day of January 1998
:Address: Sd/ (illegible)
Public Health Laboratory Public Analyst,
SURAT. Surat Municipal Corporation Area,
SURAT”
ADULTERATION OFFENCES STRICT LIABILITY
16. Adulteration of food is a menace to public health. The Prevention of Food
Adulteration Act has been enacted with the aim of eradicating that antisocial
evil and for ensuring purity in the articles of food. (Ishar Das v. State of Punjab,
AIR 1972 SC 1295 : (1972 Cri LJ 874)). The object and purpose of the
Adulteration Act is to eliminate danger to human life and health from the sale of
unwholesome articles of food. (Municipal Corpn. of Delhi v. Shiv Shanker, 1971
(1) SCC 442 : (1971 Cri LJ 680)). Strict adherence to the Prevention of Food
Adulteration Act and the Rules framed thereunder is essential for safeguarding
the interest of consumers of articles of food. Stringent laws will have no
meaning if offenders could get away. (Dayal Singh v. State of Rajasthan (2004)
5 SCC 721 : (2004 Cri LJ 2100)). No chances can be taken by society with a
man whose antisocial activities, in the guise of a respectable trader, jeopardise
the health and well being of numerous innocent consumers. The adulterator is a
social risk. It might be dangerous to leave him free to carry on his nefarious
activities. Adulteration is an economic offence prompted by profit motive and is
not likely to end itself easily to therapeutic treatment. (Prem Ballab v. State
(Delhi Admn.) (1977) 1 SCC 173 : (AIR 1977 SC 56)).
17. In offences relating to food articles, strict liability is the rule. Nothing
more than actus reus is needed where regulation of private activity in vulnerable
areas like public health is intended. Social defence reasonably overpowers
individual freedom. Section 7 of the Prevention of Food Adulteration Act casts
an absolute obligation regardless of scienter, bad faith and mens rea. Food
offences should be deterrently dealt with. When primary necessities of life are
sold with spurious admixtures for making profit the only protection which a
common man, who otherwise is at the mercy of the vicious dealer, has is under
the Prevention of Food Adulteration Act and the Court. If offenders could get
away, the law would be brought into contempt (Krishan Gopal Sharma v. Govt.
of N.C.T. of Delhi (1996) 4 SCC 513)).
18. In Murlidhar Meghraj Loya v. State of Maharashtra (1976) 3 SCC 684 :
(1976 Cri LJ 1527), the Supreme Court held thus (para 5 of Cri LJ) :
". . . . . . . .It is trite that the social mission of food laws should inform the
interpretative process so that the legal blow may fall on every adulterator.
Any narrow and pedantic, literal and lexical construction likely to leave
loopholes for this dangerous criminal tribe to sneak out of the meshes of
the law should be discouraged. For the new criminal jurisprudence must
depart from the old canons, which make indulgent presumptions and
favoured constructions benefiting accused persons and defeating criminal
statutes calculated to protect the public health and the nation's wealth. . . .
. . . . . ." (Emphasis supplied)
19. In Pyarali K. Tejani v. Mahadeo Ramchandra Dange (1974 Cri LJ 313)
the Supreme Court held thus (para 11 of Cri LJ):
". . . . . . . . . . .It is trite law that in food offences strict liability is the rule
not merely under the Indian Act but all the world over.The principle has
been explained in American Jurisprudence 2d Vol. 35, p. 864) thus
"Intent as element of offence :
The distribution of impure or adulterated food for consumption is an act
perilous to human life and health, hence, a dangerous act, and cannot be
made innocent and harmless by the want of knowledge or by the good
faith of the seller; it is the act itself, not the intent, that determines the
guilt, and the actual harm to the public is the same in one case as in the
other. Thus, the seller of food is under the duty of ascertaining at his peril
whether the article of food conforms to the standard fixed by the statute or
ordinance, unless such statutes or ordinances, expressly or by implication,
make intent an element of the offence."
Nothing more than the actus reus is needed where regulation of private
activity in vulnerable areas like public health is intended. In the words of
Lord Wright in McLeod v. Buchanan (1940) 2 All ER 179) "intention to
commit a breach of statute need not be shown. The breach in fact is
enough." Social defence reasonably overpowers individual freedom to
injure, in special situations of strict liability. Section 7 casts an absolute
obligation regardless of scienter, bad faith and mens rea. If you have sold
any article of food contrary to any of the subsections of S.7, you are
guilty. There is no more argument about it. The law denies the right of a
dealer to rob the health of a supari consumer. . . . . ." (Emphasis
supplied).
20. Under Section 13(2) of the P.F.A. Act, the accused is furnished a copy of
the report of the public analyst and is given an opportunity to make an
application to have the sample analyzed by the Central Laboratory.
21. Once such an option is exercised and the sample is analyzed by the
Central Laboratory, the report of the Central Laboratory supersedes the earlier
report of the public analyst. If the Central Laboratory finds the sample to be in
accordance with the standards, and not deteriorated, no reliance can therefore
be placed by the prosecution on the earlier report of the public analyst to
contend that the accused is guilty of adulteration.
22. In the present case, it is not the case of the accused that they had not
chosen to exercise the option under Section 13(2) of the P.F.A. Act to have the
sample sent for analysis to the Central Laboratory on account of gross delay, as
the same would have been nothing but an exercise in futility. On the contrary,
the case of the accused is that they had exercised their right under Section 13(2)
of the P.F.A. Act and had made an application to have the sample sent for
analysis to the Central Laboratory and the Central Laboratory has also certified
the sample to be adulterated. However, the report of the Central Laboratory
should be ignored, as the sample could not be said to have been fit for analysis
on account of gross delay in forwarding the same.
I am not impressed by this principal argument canvassed on behalf of the
accused.
23. In cases where the delay on the part of the prosecution had resulted in
the sample, sent for analysis to the Central Food Laboratory, being rendered
unfit for analysis, it would undoubtedly cause prejudice to the accused and
would amount to denial of his valuable right under Section 13(2) of the Act.
There could also be other cases where the delay on the part of the prosecution
could be found to have caused prejudice. Whether or not delay in furnishing of
the copy of the report of the public analyst has caused prejudice to the accused
are matters, which can only be decided, on the basis of the evidence, by the trial
Court, and not by this Court, in exercise of its inherent powers under Section
482 of the Code or writ jurisdiction under Article 226 of the Constitution.
24. In the present case, the Central Food Laboratory found the sample fit for
analysis and after certifying the sample fit for analysis, it found the sample
adulterated. Once there is a certificate of the Central Food Laboratory certifying
that the sample was fit for analysis then the burden would shift on the accused
to establish by leading cogent evidence that the sample had become unfit and
the report of the Central Food Laboratory would have no evidentiary value.
Whether a sample has, on expiry of its, "Best Before date or its shelf life, become
unfit for analysis on account of its being decomposed, is a matter of evidence
and not a matter of inference in the proceedings under Section 482 of the
Cr.P.C. It is only when a sample is sent for analysis, can the Central Laboratory
on examination certify whether or not the sample has been decomposed
rendering it unfit for analysis.
25. In Charanji Lal v. State of Punjab (1984) 1 SCC 329 : (1984 Cri LJ 15),
the Supreme Court held thus : (Para 15 of Cri LJ)
"...........Decomposition is not something which always takes place
suddenly or immediately. It is a process which in some cases may be slow
and in some cases quick. Decomposition cannot be noticed or ascertained
by the Court when it inspects the part of the sample under subsection (2
B) of Section 13 to ascertain whether the mark and seal or fastening are
intact and the signature or thumb impression, as the case may be, not
tampered with, before despatching that part to the Central Food
Laboratory. Even with the mark and seal intact, and the signature or
thumb impression, as the case may be, not tampered with, the sample
might have already decomposed or decomposing might have already
commenced. Whether a sample has decomposed or not can only be
ascertained when the sealed container is opened in the Central Food
Laboratory for the purpose of analysis.............. (Emphasis supplied)"
26. In T. V. Usman v. Food Inspector, Tellicherry Municipality AIR 1994 SC
1818 samples of six packets of pan supari were sent for analysis to the Public
Analyst, who opined that the sample contained Sacharin, an artificial sweetener,
and was thus adulterated. Both the vendor and the manufacturer were acquitted
by the Magistrate, on the ground that Rule 7(3) was violated inasmuch as the
Local (Health) Authority had received the Form III report beyond 45 days. The
learned Magistrate also held that Rule 9(a) was not properly complied with. On
appeal the Kerala High Court, while confirming the acquittal of the
manufacturer, convicted the vendor. The Kerala High Court held that Rule 7(3)
was not mandatory and noncompliance thereof needed to be considered only if
prejudice was established. Following the judgment of the Supreme Court in
Tulsiram (1984 Cri LJ 1731), the Kerala High Court held that Rule 9(a) was also
not mandatory, but was directory. On appeal, the Supreme Court held thus : (At
Pp. 182122, para 14 of AIR)
"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 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 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, subsec. (2) of S. 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 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 subrule (3) of Rule 7 by itself cannot be a ground
for the prosecution case being thrown out (Emphasis supplied)."
27. I may quote with profit a very exhaustive decision rendered by the
learned Single Judge of the Andhra Pradesh High Court on the subject in the
case of M/s Hyderabad Beverages Private Limited etc. Vs. State of A.P. 2006
Criminal Law Journal 3988.
“70. In Ajit Prasad Ramakishan Singh (1972 Cri LJ 1026), the
Supreme Court, following its earlier judgment in Sukhmal Gupta, held
that it was wrong for Courts to decide, without any data, that the sample
would decompose and become incapable of analysis and that no useful
purpose would be served in sending the sample for analysis to the Director,
when there was no evidence that the sample had so deteriorated at the
time of service of summons as to be incapable of being analysed. In the
absence of evidence, that the sample has so deteriorated as to be incapable
of analysis, such a presumption would not be justified.
71. An enquiry, as to whether the sample has decomposed, whether it
is fit or unfit for analysis etc., is a statutory function required to be
discharged by the Central Food laboratory and not for this Court, in
proceedings under Section 482, Cr.P.C. to presume that every case of delay
in furnishing a copy of the Public Analyst's report, beyond the shelf life of
the product, would either result in the sample becoming decomposed or
cause prejudice to the accused.
72. As held by the Apex Court in Ajit Prasad Ramkishan Singh (1972
Cri LJ 1026), Sukhmal Gupta, Charanji Lal (1984 Cri LJ 15) and T. V.
Usman and this Court in G. S. Prasad (2003 Cri LJ (NOC) 231) and
Gangaiahnaidu Rama Krishna unless it is shown that the sample has been
rendered unfit for analysis and the reasons therefor are on account of the
delay in sending the sample for analysis and thereby prejudice has been
caused to the accused entitling them to acquittal, mere delay in furnishing
the report of the public analyst to the accused would not, by itself, be fatal
to the case of the prosecution.
73. As held in T. V. Usman (AIR 1994 SC 1818), there is no time limit
prescribed for launching prosecution. It is relevant to note that a time
limit is prescribed, under Section 9A of the P.F.A. Act, for sending the
second sample for analysis to the Public Analyst, a time limit of 10 days
was prescribed under Rule 9(j), prior to its omission with effect from 41
1977, for supplying a copy of the report of the public analyst, Rule 22
provides that the quantity of food to be sent for analysis must be as
prescribed in the table to the rule and Rule 7(3) requires the Public
Analyst to submit his report within 45 days. All these statutory provisions
were held in Tulsiram (1984 Cri LJ 1731), Dalchand v. Municipal
Corporation, Bhopal AIR 1983 SC 303 : (1983 Cri LJ 448), State of
Kerala v. Alassery Mohammed, (1978) 2 SCC 386 : (1978 Cri LJ 925)
and T. V. Usman (AIR 1974 SC 1818), to be directory and not
mandatory. When no time limit is prescribed under the Act for launching
prosecution and certain statutory provisions and rules, wherein timelimit
is prescribed, were held to be directory and not mandatory, it cannot be
said that mere delay in furnishing a copy of the report of the public
analyst to the accused, by itself and without any thing more, is fatal to the
prosecution.
74. On what basis can Courts presume that expiry of the "best before"
date or expiry of the shelflife of the product would, by itself, and without
anything more, result in rendering the sample unfit for analysis? The shelf
life of products vary from one to the other. While in certain cases the shelf
life may be as small as one week, in certain others the shelf life could be as
long as a few years. Similarly, the delay in making available a copy of the
report of the public analyst may also vary. The delay could range from a
period of a few days, after the expiry of the shelf life or the "Best Before"
date, to even a few years. Can the same yardstick be applied in all cases to
hold that the delay in making available a copy of the public analyst
report, beyond the shelf life of the product, has caused prejudice to the
accused and denied him his valuable right under Section 13(2)? Even in
cases where the report of the public analyst is made available within time,
the accused may not exercise his right to have the sample sent for analysis
to the Central Laboratory. In such cases, the report of the public analyst is
required to be accepted. Can a different yardstick be applied to cases,
where despite a copy of the report of the public analyst being furnished
immediately after the shelf life of the product has expired and the accused
does not exercise his right to have the sample sent for analysis to the
Central Laboratory, to hold that delay by itself has caused prejudice to the
accused? Answers, thereto, have necessarily to be in the negative.
75. Negligence of officials in discharging their functions, and in not
promptly furnishing a copy of the report of the public analyst to the
accused, must not result in offenders involved in adulteration of the
food/seed being permitted to go scot free, unless prejudice is established.
Legitimate prosecution should not be scuttled on mere technicalities, in the
absence of any proof of prejudice to the accused.
76. In Dalchand (1983 Cri LJ 448), the Supreme Court held thus :
".......It is well to remember that quite often many rules, though
couched in language which appears to be imperative, are no more
than mere instructions to those entrusted with the task of
discharging statutory duties for public benefit.The negligence of
those to whom public duties are entrusted cannot by statutory
interpretation be allowed to promote public mischief and cause
public inconvenience and defeat the main object of the
statute........." (Emphasis supplied)
77. Since the eventual test is one of prejudice, which is to be
established, on the facts and circumstances of each case, by way of
evidence adduced before the learned Magistrate, it is not for this Court,
under Section 482, Cr.P.C. to infer or presume that even in case of delay,
say of a few days, beyond the shelf life of the product, and in the absence
of reasonable explanation for the delay in furnishing a copy of the report
of the Public Analyst, the accused is prejudiced and his right, under
Section 13(2) of the P.F.A. Act and Section 16(2) of the Seeds Act, is
violated.
78. In exercise of its jurisdiction under Section 482, Cr.P.C. this Court
does not take upon itself the task of examining the evidence or to record
an independent finding that the delay in furnishing a copy of the public
analyst's report has resulted in prejudice to the accused. Whether the delay
is insignificant or inordinate, whether the delay is attributable to lapses of
the prosecution in making available a copy of the public analyst's report,
whether on account of the delay in making the report available, the right
of the accused under Section 13(2) of the P.F.A. Act or Section 16(2) of
the Seeds Act has been rendered illusory as the sample sent to the Central
Laboratory is found unfit for analysis due to decomposition by passage of
time or for any other reason attributed to lapses on the part of the
prosecution, whether inordinate delay in sending the sample for analysis
has, by passage of time, rendered the sample "adulterated" are all matters
to be examined by the learned Magistrate, in the facts and circumstances
of each case, on the basis of the evidence adduced. Delay, by itself and
without anything more, cannot form the basis for the High Court, in
exercise of its jurisdiction under Section 482, Cr.P.C. to quash the criminal
proceedings."
28. The learned Single Judge in para 103 of the report summed up as
under :
103. 1. Since the object and purpose of the PFA Act is to eliminate
danger to human life and health from the sale of unwholesome articles of
food, strict adherence to the PFA Act and the rules made thereunder is
essential. In offences relating to food articles, strict liability is the rule.
2. The report of the public analyst, under Section 13 (1) of the PFA
Act and Section 16(1) of the Seeds Act, forms the basis for institution of
prosecution for adulteration offences. This report, prima facie, indicates
that the accused have sold adulterated food/seed.
3. The option given for analysis to the Central Laboratory, is to
enable them to ascertain the correctness or otherwise of the findings of the
public analyst. This valuable right, under Section13(2) of the PFA Act and
Section 16(2) of Seeds Act, if denied, would cause prejudice to the accused.
4. Denial of the right of the accused, under Section13(2) of the PFA
Act and Section 16(2) of the Seeds Act, would arise only when the accused
have applied to the Court to have the sample sent for analysis to the
Central Laboratory. Failure to exercise this option or to make an
application to the Court, requesting that the sample be sent for analysis to
the Central Laboratory, would disentitle the accused from contending that
they have been denied their right under Section 13(2) of the PFA Act and
Section 16(2) of the Seeds Act. (Babulal Hargovindas (1971 Cri LJ 1075),
Sukhmal Gupta, Jagdish Prasad, (1972 Cri LJ 1309), Ajit Prasad
Ramkishan Singh (1972 Cri LJ 1026), Prabhu (1994 AIR SCW 2649),
Tulsiram (1984 Cri LJ 1731), G. S. Prasad (2003 Cri LJ NOC 231), and
Gangaiahnaidu Rama Krishna.
5. "Best Before date", under Rule 32 of the PFA Rules, merely requires
the manufacturer to indicate the period during which the product would
remain fully marketable and retain its specific qualities. Explanation VIII
(i) thereunder provides that beyond the "Best Before date", the food may
still be perfectly satisfactory.
6. Expiry of the "Best Before" date or the shelf life of the product
would only enable a manufacturer to disclaim liability regarding the
marketability and the specific qualities of the product. Expiry of the shelf
life would not automatically render the sample unfit for analysis.
7. The "Best Before" date would vary from one article to another.
Similarly the extent of delay in furnishing a copy of the report of the
public analyst to the accused would vary from one case to another.
8. Rule 4(5) of the Prevention of Food Adulteration Rules, read with
Form II of AppendixA thereof, requires the Central Laboratory to certify
as to whether the sample sent to it for analysis is fit for analysis or not
and in case it is found unfit for analysis to certify the reasons therefor.
9. The PFA Act and the Rules made thereunder cast a duty on the
Central Laboratory to certify whether or not the sample is fit for analysis.
10. Whether the sample is fit for analysis or has decomposed to such an
extent as to render it incapable of analysis are all matters to be examined
by the Central Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit
for analysis and this has resulted due to the delay on the part of the
prosecution to furnish a copy of the report of the public analyst to the
accused, can the accused be said to have suffered prejudice. (Ajit Prasad
Ramkishan Singh (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal
(1984 Cri LJ 15), T. V. Usman (AIR 1994 SC 1818), G. S. Prasad (2003
Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central
Laboratory and the Central Laboratory has not certified that the sample
has decomposed, rendering it unfit for analysis, mere delay in furnishing
the report of the public analyst to the accused cannot, by itself, be said to
have caused prejudice to the accused.
13. Power under Section 482, Cr. P. C. is to be exercised sparingly,
with circumspection, and in the rarest of rare cases. This power is not to
be used to stifle legitimate prosecution. Inherent powers under Section
482, Cr. P. C. do not confer arbitrary jurisdiction on the High Court to act
according to whim or caprice.
14. In proceedings under Section 482, Cr. P. C. the High Court does not
take upon itself the task of appreciating the evidence on record or to record
an independent finding that the delay in furnishing a copy of the report of
the public analyst has resulted in prejudice to the accused.
15. Whether delay, in furnishing a copy of the report of the public
analyst, has resulted in prejudice to the accused and whether the
prosecution has furnished a satisfactory explanation for the delay, are all
matters of evidence, to be examined by the trial Court and not for this
Court to infer in proceedings under Section 482, Cr. P.C.
16. Section 24(3) and (4) of the Insecticides Act is in pari materia with
the provisions of Section 15(3) and (4) of the Drugs and Cosmetics Act.
Under Section 24(3) of the Insecticides Act and Section 25(3) of the Drugs
and Cosmetics Act, on receipt of the report of the public analyst the person
from whom the sample has been taken, or any other person concerned, is
required, within 28 days of receipt of a copy of the report, to notify in
writing, the Inspector or the Court, of his intention to adduce evidence in
contraversion of the report.
17. In National Organics Chemical Industries Limited, Unique Farmaid
(P) Ltd. (2000 Cri LJ 2692), and Gupta Chemicals, the accused had,
under Section 24(3) of the Insecticides Act, notified their intention of
adducing evidence in contraversion of the report of the public analyst.
18. In Brijlal Mittal (1998 Cri LJ 3287) the Supreme Court held that,
in cases where the accused has not intimated his intention to adduce
evidence in contraversion of the report of the public analyst the delay, in
filing the complaint after the expiry of the shelf life of the product, could
not be made a ground to quash the prosecution.
19. In cases where the accused have not even requested or made an
application to the Court to have the sample sent for analysis to the Central
Laboratory, delay in furnishing a copy of the report of the public analyst,
beyond the shelf life of the product, cannot be made a ground to quash the
prosecution.
20. There is no provision similar to Section 24(3) and (4) of the
Insecticides Act, either under the Prevention of Food Adulteration Act or
the Seeds Act, requiring the accused to notify his intention to adduce
evidence in contraversion of the report of the public analyst.
21. Where two statutes are not in pari materia, the decision rendered
on a provision in one enactment would not constitute a binding precedent
to interpret a provision in another enactment. (Babu Khan (AIR 2001 SC
1740) and N. R. Vairamani (AIR 2004 SC 4778)."
29. I am in respectful agreement with the view taken by the learned Single
Judge of the Andhra Pradesh High Court and I propose to follow the same. The
learned Single Judge also considered the provisions of the Insecticides Act as
also relied upon in the present case by Mr. Raju, the learned advocate appearing
for the accused, where it has been held that the provisions of the P.F.A. and the
Seeds Act are not in parimateria with the provisions of the Insecticides Act.
30. The reliance on the decision of the Supreme Court in the case of
Girishbhai (supra) is also of no avail to the accused. The decision was rendered
in the facts of that case. The most important distinguishing feature of that case
is that since the report had been served on the appellant only on 17th July, 1989
by which time the sample of curd had deteriorated. The Court took the view
that any further examination of such sample had become meaningless, thereby
depriving of the valuable right conferred upon him by Section 13(2) of the Act.
31. As noted above, in the present case the right had been exercised and the
Central Food Laboratory found the sample to be fit for analysis and only
thereafter the Central Food Laboratory certified that the sample was
adulterated.
32. It appears that the applicants of the Criminal Misc. Application No. 1822
of 2002 had filed an application for discharge in the Court of the learned
Magistrate, vide application Exh.67. The discharge application was ordered to
be rejected vide order dated 21.4.2001. Being dissatisfied, the applicants had
challenged the order before the Sessions Court, by filing Criminal Revision
Application No. 56/01. The revision application was also ordered to be rejected
vide order dated 28.1.2002. Such order passed by the Revisional Court was
never challenged before this Court. However, straight way the present
application was filed, praying for quashing of the criminal proceedings.
33. In the result, both these petitions fail and are ordered to be rejected.
Rule stands discharged. Adinterim relief granted earlier stands vacated
forthwith.
(J.B.PARDIWALA, J.)
Print Page
would only enable a manufacturer to disclaim liability regarding the
marketability and the specific qualities of the product. Expiry of the shelf
life would not automatically render the sample unfit for analysis.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 1821 of 2002
with
CRIMINAL MISC.APPLICATION NO. 1822 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
PEPSI CO. INDIA HOLDINGS LTD
THRO'ITS OFFICER VINAY MATHUR & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :11/12/2014
Citation: 2015GLH(2)556, (2015)2GLR1183
Since the challenge in both the captioned applications is to a selfsame
complaint, those were heard analogously and are being disposed of by this
common judgment and order.
1. The applicants (original accused) have filed these applications under
Section 482 of the Code of Criminal Procedure,1973 (for short “the Code”)
invoking inherent powers of this Court praying that the complaint being Food
Adulteration Case no.55/2000 pending in the Court of the Judicial Magistrate
First Class (Municipal), Surat, be quashed.
2. It appears from the materials on record that one A.S. Licencewala, a Food
Inspector serving with the Surat Municipal Corporation lodged a private
complaint in the Court of the JMFC (Municipal), Surat against 12 accused of the
offence punishable under Sections 7 and 16 of the Prevention of Food
Adulteration Act, 1954.
3. The accused no.1 in the complaint is the Wholesaler carryingon business
in the name of the Kamal Enterprise and the accused no.2 is the Sales Manager
of the accused no.1. The accused no.3 is a Cold Storage firm and the accused
nos.4 to 9 are the partners of the accused nos.1 and 3 firms. The accused no.10
is a company who manufactures the product of aerated water like Pepsi, 7UP,
Miranda, Slice etc. The accused no.11 is the nominee of the accused no.10
company.
4. It appears that on 29th November, 1997 the complainant visited the firm
of the accused no.1 and at that point of time the accused no.2 was present and
was selling the products manufactured by the accused no.10 like Pepsi, 7up,
Miranda etc. The complainant wanted to draw a sample for the purpose of
analysis and therefore, he called one person, namely, Rajubhai C. Thakkar as a
panch witness. The complainant collected six bottles of 500 ml. of printed
crown of Laher Pepsi and the same were sealed and packed and thereafter were
sent for analysis. The complainant received the report from the Public Analyst
dated 8/1/1998 certifying that the product was found to be adulterated. The
Public Analyst certified that the aerated water had excessive impurity in the
form of Floated Faculent Gelatin.
5. It appears that on receipt of the Public Analyst report the complainant
applied for sanction under section 20 of the Act for the purpose of filing
complaint against the accused persons. The Surat Municipal Corporation
accorded sanction dated 15th June, 2000 as prayed for by the complainant and
thereafter on 18th September, 2000 the complaint was lodged in the Court of
the JMFC (Municipal), Surat.
6. The learned JMFC vide order dated 18th September, 2000 took
cognizance upon the complaint and ordered issue of bailable warrant of
Rs.3,000/ against each of the accused of the offence punishable under Sec. 16
r/w sec. 7 of the Act, 1954.
7. The Misc. Criminal Application No.1821/2002 is filed by the original
accused nos.10 and 11 i.e. Pepsi Cola India Holdings Ltd., the manufacturer of
the aerated water and its nominee. Whereas the Misc. Criminal Application
No.1822/2002 is filed by original accused nos.1 to 9 i.e. the Wholesaler, Sales
Manager, Cold Storage as a partnership firm and the partners of the partnership
firm.
8. It also appears from the materials on record that the applicants of Misc.
Criminal Application No.1822/2002 had filed an application for
discharge/dropping of the proceedings before the learned Magistrate vide
application Exh.67, however, the said application was ordered to be rejected
vide order dated 21st April, 2001. Against the said order the accused Nos.1 to 9
had filed Criminal Revision Application No.56/2001 and the said revision
application was also ordered to be rejected vide order dated 28th January, 2002.
9. Submissions on behalf of the Petitioners :
9.1 Mr.Bhadrish Raju, the learned advocate appearing on behalf of the
applicants vehemently submitted that there has been a gross delay in filing the
complaint as the samples were drawn on 29th January, 1997 and the Public
Analyst report is dated 8th January, 1998, He submits that the complaint was
filed on 18th January, 2000 i.e. nearly almost after 3 years from the date of
drawing of the samples. He submits that on such ground alone the complaint
deserves to be quashed. Mr.Raju further submits that the product in question
was manufactured on 15th October, 1997 and the notice for reanalysis,
mandatorily required under Sec. 13(2) of the Act is dated 21st September, 2000.
He submits that the product was three years old when the accused persons were
asked to exercise their right of getting the sample reanalyzed through the
Central Foods Laboratory. He submits that the reanalysis of the sample after a
period of three years would be nothing but an exercise in futility.
9.2 Mr. Raju's main bone of contention is that the right of the accused
conferred under Section 13(2) of the Act to get the sample of the product “Laher
Pepsi” reanalysed through the Central Food Laboratory was frustrated on
account of gross delay on the part of the complainant in filing of the complaint.
9.3 Mr.Raju submits that the date of manufacture was well within the
knowledge of the respondent no.2 and was duly noted by him in FormVI that is
issued to the Vendor at the time of the sampling of the product. The respondent
no.2 in the said FormVI had noted the label in detail, but the “Best Before” had
not been noted where as the sampled product was Best Before 6 months from
the date of manufacture.
9.4 He submits that the products such as the Sweetened Carbonated Water
are best before 6 months from the date of manufacture only. In the present case
since the date of manufacture of product is 15th October, 1997 it could be said
to be Best Before only till 15th April, 1998.
9.5 Mr.Raju also submitted that the report of the Central Food Laboratory
noted Yeast and Mould Count/Ml.725 as against 2. The report of the Public
Analyst is silent so far as the contents noted by the Central Food Laboratory is
concerned.
9.6 Mr.Raju has placed strong reliance on a decision of the Supreme
Court in the case of Girishbhai Dahyabhai Shah Vs. C.C.Jani & another reported
in (2009) 15 SCC 64. He has also placed reliance on the decision of the
Supreme Court in the case of Northern Minerals Ltd., Vs. Union of India &
another – (2010) 7 SCC 726. The decision of the Supreme Court in the case of
Northern Minerals (Supra.) is relating to the provisions of the Insecticides Act,
1968.
10. Submissions on behalf of the complainant :
10.1 Mr. Vishwas Shah, the learned advocate appearing on behalf of the
complainant, has vehemently opposed this application submitting that the delay
in granting of sanction was due to the fact that at the relevant time i.e. from
June, 1998, the power to accord sanction was delegated to the Medical Health
Officer, Surat Municipal Corporation, however, the Medical Health Officer was
suspended from his service in the month of September, 1998 and thereafter, the
power was not delegated to any other officer during that period. Later on the
power to accord sanction under the Act was delegated to the Deputy
Commissioner, Health & Hospital, Surat Municipal Corporation, in the month of
February, 2000. After the delegation of the power, the sanction was accorded in
the present case and accordingly the complaint was lodged on 18th September,
2000.
10.2 Mr.Shah submits that the delay, if any, is no ground for quashing the
complaint, more particularly when the Central Food Laboratory has certified the
sample as fit for analysis and certified that the sample was adulterated.
10.3 Mr. Shah submits that once the Central Food Laboratory found the
sample fit for analysis and was found to be adulterated, the principal argument
canvassed on behalf of the accused regarding prejudice should fail. Mr.Shah
submits that Sec. 20A of the Act can be pressed into service only when the
offence under the Act is alleged to have been committed by any person not
being a manufacturer, distributor or dealer of any food. In such circumstances,
if a person who is the manufacturer, distributor or dealer of food, commits the
offence under the Act then it could not be said that having regard to the
embargo under Sec. 20A of the Act, they cannot be impleaded as accused.
10.4 Mr. Shah in support of his submissions has placed reliance on the
following decisions :
i) Gangaihnaidu Ramakrishna & Ors. Vs. State of A.P. Represented by Food
Inspector DivisionII –MANU/AP/1110/2005.
ii) Hyderabad Beverages Pvt. Ltd., etc. Vs. State of A.P.
2006 Cri. Law Journal 3988
11. Having heard the learned counsel appearing for the parties and having
gone through the materials on record, the only question that falls for my
consideration is whether the complaint should be quashed.
12. Before adverting to the rival submissions canvassed on either sides, I
deem it necessary to look the into few relevant provisions of law.
"14. Section 2(ia) of the Prevention of Food Adulteration Act, 1954 defines
'adulterated' to mean :
"(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;
(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 insectinfested
or is 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, 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 quality 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 subclause.
Explanation Where two or more articles of primary food are mixed
together and the resultant article of food
(a) is stored, sold or distributed under a name which denotes the
ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be
deemed to be adulterated within the meaning of this clause."
15. Under Section 7, no person shall himself, or by any person on his
behalf, manufacture for sale, or store, sell or distribute any adulterated
food. Section 8 empowers the Central and State Governments to appoint
Public Analysts. Section 11 prescribes the procedure to be followed by Food
Inspectors while taking samples of food for analysis. Section 13 relates to
the report of the Public Analyst. Under subsection (1) thereof, 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. Under subsection (2), on receipt of the
report of the result of the analysis under subsection (1), to the effect that
the article of food is adulterated, the Local (Health) Authority shall, after
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 10 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.
Under subsection (2A), when an application is made to the Court under
subsection (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 such requisition. Under subsection (2B), on receipt of the part
or parts of the sample from the Local (Health) Authority, the Court shall
after ascertaining that the mark and seal are intact and not tampered
with, dispatch the part 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. Under subsection (2D), until 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 before it in relation to the prosecution. Section 13(3) provides
that the certificate issued by the Director of the Central Food Laboratory,
under subsection (2B), shall supersede the report given by the public
analyst under subsection (1). Under Section 14, no manufacturer or
distributor of, or dealer in any article of food shall sell such article to any
vendor, unless he also gives a warranty in writing in the prescribed form
about the nature and quality of such article to the vendor. Proviso
thereunder prescribes that a bill, cash memorandum or invoice in respect
of the sale of any article of food given by a manufacturer or distributor of,
or dealer in, such article to the vendor thereof shall be deemed to be a
warranty. Section 14A requires every vendor of an article of food, if so
required, to disclose to the food inspector the name, address and other
particulars of the person from whom he purchased the article of food.
16. Rule 2(d) of the Prevention of Food Adulteration Rules, 1955
(hereinafter referred to as the "Rules"), defines 'Form' to mean a Form set
forth in Appendix A to the Rules. Rule 4 relates to analysis of food samples
and reads thus :
"Analysis of food samples :
(1)(a) Samples of food for analysis under subsection (2) of Section 13 of
the Act shall be sent either through a messenger or by registered post in a
sealed packet, enclosed together with a memorandum in Form I in an
outer cover addressed to the Director.
(b) Samples of food for analysis under subsection (2) of Section 6 of the
Act or under clause (a) of Rule 3 shall be sent either through a messenger
or by registered post in a sealed packet enclosed together with a
memorandum in Form 1A in an outer cover addressed to the Director.
(2) The container as well as the outer covering of the packet shall be
marked with a distinguishing number.
(3) A copy of the memorandum and a specimen impression of the seal
used to seal the container and the cover shall be sent separately by
registered post to the Director.
(4) On receipt of a package containing a sample for analysis the Director
or an officer authorized by him, shall compare the seals on the container
and the outer cover with specimen impression received separately and shall
note the condition of the seals thereon.
(5) After test or analysis, the certificate thereof shall be supplied forthwith
to the sender in Form II.
(6) The fees payable in respect of such a certificate shall be "Rs. 1000" per
sample of food analysed.
(7) Certificates issued under these rules by the Laboratory shall be signed
by the Director.
(8) The fee payable in respect of analysis of samples of imported food
analysed in any designated laboratory shall be Rs. 3000 per sample
payable by the importer."
17. Rule 5 provides that the standards of quality of the various articles of
food specified in AppendixB to the Rules are as defined in that appendix.
Rule 6 prescribes the qualification of a Public Analyst and Rule 7, which
prescribes the duties of a Public Analyst, reads thus :
"Duties of public analyst :
(1) On receipt of a package containing a sample for analysis from a Food
Inspector or any other person the public analyst or an officer authorised by
him shall compare the seals on the container and the outer cover with
specimen impression received separately and shall note the condition of the
seals thereon. Provided that in case sample container received by the public
analyst is found to be in broken condition or unfit for analysis he shall
within a period of seven days from the date of receipt of such sample
inform the Local (Health) Authority about the same and send requisition
to him for sending second part of the sample.
(2) The public analyst shall cause to be analysed such samples of articles
of food as may be sent to him by Food Inspector or by any other person
under the Act.
(3) The public analyst shall, within a period of (forty days) from the date
of receipt of any sample for analysis, (send by registered post or by hand)
to the Local (Health) Authority a report of the result of such analysis in
Form III : Provided that where any such sample does not conform to the
provisions of the Act or these rules, the public analyst shall (send by
registered post or by hand) four copies of such report to the said
Authority : Provided further that the public analyst shall forward a copy of
such report also to the person who purchased an article of food and
forwarded the same to him for analysis under Section 12 of the Act.
Note : In case of sample received under the proviso of Rule 7(1) or Rule 9
A, the period of forty days shall be counted from the date of receipt of the
second part of the sample."
18. Rule 9A relates to sending of samples by Local (Health) Authority,
and reads thus :
"9A. Sending of sample by Local (Health) Authority :
(a) Local (Health) Authority shall within a period of seven days of receipt
of requisition for second part of the sample from public analyst under the
proviso of Rule 7(1), send such sample to the public analyst.
(b) Local (Health) Authority, while sending second part of the sample
under the provision of subsection (2E) of Section 13 of the Act, shall do
so within a period of 20 days from the date of receipt of the report from
the first public analyst ."
Rule 12 provides that the notice of intention to take sample for analysis
should be given in Form VI. Rule 12A relates to warranty and thereunder
every manufacturer, distributor or dealer selling an article of food to a
vendor shall give either separately or in the bill, cash memo or a label a
warranty in Form VIA. Rule 14 prescribes the manner of sending the
sample for analysis. Rule 22 relates to the quantity of the sample.
13. As noted above Appendix A contains the forms. Form II is the certificate
of analysis by the Central Food Laboratory, under Rule 4(5) and reads as under :
Form II
(See Rule 4(5))
(Certificate of analysis by the Central Food Laboratory)
Certificate No.....................
Certified that the sample bearing number.......................... purporting to
be a sample of...................... was received on............................. with
Memorandum No. .................. dated............................
from............................. (name of the Court)........................ for analysis.
The condition of seals on the container and the outer covering on receipt
was as follows :
.....................................................................
I......................... (name of the Director)........................... found the
sample to be........................ (category of the food sample).......................
falling under Item No................................... of *Appendix B of Prevention
of Food Adulteration Rules.
1955/*proprietary food. The sample was in a condition fit for analysis
and has been analysed on......................... (Give date of starting and
completion of analysis) ................... and the result of its analysis is given
below/*was not in a condition fit for analysis for Reasons :
Analysis Report :
(i) Sample Description :
(ii) Physical Appearance :
(iii) Label :
Sr. No.Quality Name of Method Result Prescribed Standards as
per :
Characteristics of test used (a) Item A of Appendix 'B'
(b) As per label declaration for proprietary foods
(c) As per provisions of the Act and Rules, for both above.
1.
2.
3.
4.
5.
6.
Opinion**
(Signature)
Place : Director
Date : Central Food Laboratory (Seal)
20. It is necessary to note that Form II was substituted by G.S.R. No. 530
(E) dated 2972002 with effect from 2912003. Under Form II the
Central Food Laboratory is, among others, required to certify as to
whether the sample was in a condition fit for analysis or was not fit for
analysis. Where a sample is not in a condition fit for analysis, the reasons
therefore are also required to be stated in the certificate.
14. Since the learned counsel appearing for the accused has also placed
reliance on the provisions of the Insecticides Act, 1968, I may look into few of
the relevant provisions of the Act. Sec.24(3) and (4) of the Act reads as
follows :
"Sec.24. Report of Insecticide Analyst
3. Any document purporting to be a report signed by an Insecticide Analyst
shall be evidence of facts stated therein, and such evidence shall be
conclusive unless the person from whom the sample was taken has within
twentyeight days of the receipt of a copy of the report notified in writing
the Insecticide Inspector or the Court before which any proceeding in
respect of the sample are pending that he intends to adduce evidence in
contravention of the report.
4. Unless the sample has already been tested or analyzed in the Central
Insecticides Laboratory, where a person has under subsection (3) notified
his intention of adducing evidence in contravention of the insecticide
analysts report the Court may, of its own motion or its discretion at the
request either of the complainant or of the accused, cause the sample of the
insecticide produced before the Magistrate under subsection (6) of Sec. 22
to be sent for test or analysis to the laboratory, which shall make the test
or analysis and report in writing signed by, or under the authority of, the
Director of Central Insecticides Laboratory the result thereof, and such
report shall be conclusive evidence of the facts stated therein."
15. I may now look into the two reports, one of the Public Analyst and the
other of the Central Food Laboratory.
FORM II
(Certificate of test or analysis by the Central Food Laboratory, Calcutta)
Certificate No. G.141/2000(Pt.
Certified that the sample (s), bearing number 3/MDH & LHA/SMC/J1_8
(as on label) purporting to be a sample of Laher Pepsi received on 4.12.00 with
Memorandum No. 424/2000 dated 24.11.2000 from Shri P. H. Gohil,
Judicial Magistrate, 1st Class, Municipal Corporation, Surat was in a condition
fit for analysis and have been tested/analysed and that the result/ results of
such test(s)/analysis is/are stated below :
(i) Physical Examinations (including label declarations) : 500ml sample of
Laher pepsi is in a sealed glass bottle with label declaration.
Total plate count/ml. : 45
Colaform count/100 ml : Absent
Yeast & mould count/ml : 725
Test for Carbon dioxide : Positive
Total Sugar (expressed as Sucrese) : 9.8%
Artificial Swetteners (Saccharin, acesulfame & Aspertame) :
Absent
Caffeine : 112.23 ppm
Added colour : Absent
Opinion: The sample of Laher Pepsi is adulterated.
2. The condition of the seals on the container and the outer covering on receipt
was as follows :
The seals were intact and tallied with the specimen impression of seals
separately along with copy of the memorandum.
Place : CALCUTTA. Sd/ (illegible)
( Dr. __ Chakrabarti)
Date: Director
Central Food Laboratory, Calcutta
S.M.C._______________001095
SURAT MUNICIPAL CORPORATION
Report by the Public Analyst
Report No. PHL/ J132/9798
I hereby certify that I, Shri R. M. Ray M.Sc. Technical Assistant, Public
Health Laboratory, Surat Municipal Corporation, Public Analyst for Surat
Municipal area, duly appointed under the provision of the Prevention of Food
Adulteration Act, 1954, received on the 1st day of December 97 from Food
Inspector, Surat Municipal area Shri A. S. Lincewala a sample of Lahar Pepsi –
Sweetend Carbonated Beverages being code number and serial number 3/M. O.
H. & L.H.A./ S.M.C./ ______J/130 ____of Local Health Authority,
Place of collection : Surat City Area.
For analysis, properly sealed and fastened and that I found the seal intact
and unbroken.
The seals fixed on the container and the outer cover of the sample tallied
with the specimen Impression of the seal separately sent by the food Inspector
and the sample was in a condition fit for analysis.
I further certify that I had caused to be analyzed the afore mentioned
sample, and declare the result of the analysis to be as follows :
Result of Analysis P. F. A. limits.
Macroscopy: Sealed bottles of 500 ml. capacity
floating impurity in abundance in
the form of flocullent gelations
particles.
Artificial Swettening Agent…. Absent Absent
Colour ………………….. Permitted food colour Permitted food colour
Present. May be used.
Total Sugar ………………. 9.7% …….. 5% (Min.)
(expressed as Sucrose)
(The slip of Local Health Authority and the Signature of the vendor on
the wrapper of the container were as per rules)
and I am of the opinion that the sample of Lahar Pepsi Sweetend Carbonated
Beverages does not confirm to the provisions laid down under Prevention of
Adulteration Act 1954 & is adulterated according to Rule 2(ia) (e) Definitions.
Signed this 8th day of January 1998
:Address: Sd/ (illegible)
Public Health Laboratory Public Analyst,
SURAT. Surat Municipal Corporation Area,
SURAT”
ADULTERATION OFFENCES STRICT LIABILITY
16. Adulteration of food is a menace to public health. The Prevention of Food
Adulteration Act has been enacted with the aim of eradicating that antisocial
evil and for ensuring purity in the articles of food. (Ishar Das v. State of Punjab,
AIR 1972 SC 1295 : (1972 Cri LJ 874)). The object and purpose of the
Adulteration Act is to eliminate danger to human life and health from the sale of
unwholesome articles of food. (Municipal Corpn. of Delhi v. Shiv Shanker, 1971
(1) SCC 442 : (1971 Cri LJ 680)). Strict adherence to the Prevention of Food
Adulteration Act and the Rules framed thereunder is essential for safeguarding
the interest of consumers of articles of food. Stringent laws will have no
meaning if offenders could get away. (Dayal Singh v. State of Rajasthan (2004)
5 SCC 721 : (2004 Cri LJ 2100)). No chances can be taken by society with a
man whose antisocial activities, in the guise of a respectable trader, jeopardise
the health and well being of numerous innocent consumers. The adulterator is a
social risk. It might be dangerous to leave him free to carry on his nefarious
activities. Adulteration is an economic offence prompted by profit motive and is
not likely to end itself easily to therapeutic treatment. (Prem Ballab v. State
(Delhi Admn.) (1977) 1 SCC 173 : (AIR 1977 SC 56)).
17. In offences relating to food articles, strict liability is the rule. Nothing
more than actus reus is needed where regulation of private activity in vulnerable
areas like public health is intended. Social defence reasonably overpowers
individual freedom. Section 7 of the Prevention of Food Adulteration Act casts
an absolute obligation regardless of scienter, bad faith and mens rea. Food
offences should be deterrently dealt with. When primary necessities of life are
sold with spurious admixtures for making profit the only protection which a
common man, who otherwise is at the mercy of the vicious dealer, has is under
the Prevention of Food Adulteration Act and the Court. If offenders could get
away, the law would be brought into contempt (Krishan Gopal Sharma v. Govt.
of N.C.T. of Delhi (1996) 4 SCC 513)).
18. In Murlidhar Meghraj Loya v. State of Maharashtra (1976) 3 SCC 684 :
(1976 Cri LJ 1527), the Supreme Court held thus (para 5 of Cri LJ) :
". . . . . . . .It is trite that the social mission of food laws should inform the
interpretative process so that the legal blow may fall on every adulterator.
Any narrow and pedantic, literal and lexical construction likely to leave
loopholes for this dangerous criminal tribe to sneak out of the meshes of
the law should be discouraged. For the new criminal jurisprudence must
depart from the old canons, which make indulgent presumptions and
favoured constructions benefiting accused persons and defeating criminal
statutes calculated to protect the public health and the nation's wealth. . . .
. . . . . ." (Emphasis supplied)
19. In Pyarali K. Tejani v. Mahadeo Ramchandra Dange (1974 Cri LJ 313)
the Supreme Court held thus (para 11 of Cri LJ):
". . . . . . . . . . .It is trite law that in food offences strict liability is the rule
not merely under the Indian Act but all the world over.The principle has
been explained in American Jurisprudence 2d Vol. 35, p. 864) thus
"Intent as element of offence :
The distribution of impure or adulterated food for consumption is an act
perilous to human life and health, hence, a dangerous act, and cannot be
made innocent and harmless by the want of knowledge or by the good
faith of the seller; it is the act itself, not the intent, that determines the
guilt, and the actual harm to the public is the same in one case as in the
other. Thus, the seller of food is under the duty of ascertaining at his peril
whether the article of food conforms to the standard fixed by the statute or
ordinance, unless such statutes or ordinances, expressly or by implication,
make intent an element of the offence."
Nothing more than the actus reus is needed where regulation of private
activity in vulnerable areas like public health is intended. In the words of
Lord Wright in McLeod v. Buchanan (1940) 2 All ER 179) "intention to
commit a breach of statute need not be shown. The breach in fact is
enough." Social defence reasonably overpowers individual freedom to
injure, in special situations of strict liability. Section 7 casts an absolute
obligation regardless of scienter, bad faith and mens rea. If you have sold
any article of food contrary to any of the subsections of S.7, you are
guilty. There is no more argument about it. The law denies the right of a
dealer to rob the health of a supari consumer. . . . . ." (Emphasis
supplied).
20. Under Section 13(2) of the P.F.A. Act, the accused is furnished a copy of
the report of the public analyst and is given an opportunity to make an
application to have the sample analyzed by the Central Laboratory.
21. Once such an option is exercised and the sample is analyzed by the
Central Laboratory, the report of the Central Laboratory supersedes the earlier
report of the public analyst. If the Central Laboratory finds the sample to be in
accordance with the standards, and not deteriorated, no reliance can therefore
be placed by the prosecution on the earlier report of the public analyst to
contend that the accused is guilty of adulteration.
22. In the present case, it is not the case of the accused that they had not
chosen to exercise the option under Section 13(2) of the P.F.A. Act to have the
sample sent for analysis to the Central Laboratory on account of gross delay, as
the same would have been nothing but an exercise in futility. On the contrary,
the case of the accused is that they had exercised their right under Section 13(2)
of the P.F.A. Act and had made an application to have the sample sent for
analysis to the Central Laboratory and the Central Laboratory has also certified
the sample to be adulterated. However, the report of the Central Laboratory
should be ignored, as the sample could not be said to have been fit for analysis
on account of gross delay in forwarding the same.
I am not impressed by this principal argument canvassed on behalf of the
accused.
23. In cases where the delay on the part of the prosecution had resulted in
the sample, sent for analysis to the Central Food Laboratory, being rendered
unfit for analysis, it would undoubtedly cause prejudice to the accused and
would amount to denial of his valuable right under Section 13(2) of the Act.
There could also be other cases where the delay on the part of the prosecution
could be found to have caused prejudice. Whether or not delay in furnishing of
the copy of the report of the public analyst has caused prejudice to the accused
are matters, which can only be decided, on the basis of the evidence, by the trial
Court, and not by this Court, in exercise of its inherent powers under Section
482 of the Code or writ jurisdiction under Article 226 of the Constitution.
24. In the present case, the Central Food Laboratory found the sample fit for
analysis and after certifying the sample fit for analysis, it found the sample
adulterated. Once there is a certificate of the Central Food Laboratory certifying
that the sample was fit for analysis then the burden would shift on the accused
to establish by leading cogent evidence that the sample had become unfit and
the report of the Central Food Laboratory would have no evidentiary value.
Whether a sample has, on expiry of its, "Best Before date or its shelf life, become
unfit for analysis on account of its being decomposed, is a matter of evidence
and not a matter of inference in the proceedings under Section 482 of the
Cr.P.C. It is only when a sample is sent for analysis, can the Central Laboratory
on examination certify whether or not the sample has been decomposed
rendering it unfit for analysis.
25. In Charanji Lal v. State of Punjab (1984) 1 SCC 329 : (1984 Cri LJ 15),
the Supreme Court held thus : (Para 15 of Cri LJ)
"...........Decomposition is not something which always takes place
suddenly or immediately. It is a process which in some cases may be slow
and in some cases quick. Decomposition cannot be noticed or ascertained
by the Court when it inspects the part of the sample under subsection (2
B) of Section 13 to ascertain whether the mark and seal or fastening are
intact and the signature or thumb impression, as the case may be, not
tampered with, before despatching that part to the Central Food
Laboratory. Even with the mark and seal intact, and the signature or
thumb impression, as the case may be, not tampered with, the sample
might have already decomposed or decomposing might have already
commenced. Whether a sample has decomposed or not can only be
ascertained when the sealed container is opened in the Central Food
Laboratory for the purpose of analysis.............. (Emphasis supplied)"
26. In T. V. Usman v. Food Inspector, Tellicherry Municipality AIR 1994 SC
1818 samples of six packets of pan supari were sent for analysis to the Public
Analyst, who opined that the sample contained Sacharin, an artificial sweetener,
and was thus adulterated. Both the vendor and the manufacturer were acquitted
by the Magistrate, on the ground that Rule 7(3) was violated inasmuch as the
Local (Health) Authority had received the Form III report beyond 45 days. The
learned Magistrate also held that Rule 9(a) was not properly complied with. On
appeal the Kerala High Court, while confirming the acquittal of the
manufacturer, convicted the vendor. The Kerala High Court held that Rule 7(3)
was not mandatory and noncompliance thereof needed to be considered only if
prejudice was established. Following the judgment of the Supreme Court in
Tulsiram (1984 Cri LJ 1731), the Kerala High Court held that Rule 9(a) was also
not mandatory, but was directory. On appeal, the Supreme Court held thus : (At
Pp. 182122, para 14 of AIR)
"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 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 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, subsec. (2) of S. 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 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 subrule (3) of Rule 7 by itself cannot be a ground
for the prosecution case being thrown out (Emphasis supplied)."
27. I may quote with profit a very exhaustive decision rendered by the
learned Single Judge of the Andhra Pradesh High Court on the subject in the
case of M/s Hyderabad Beverages Private Limited etc. Vs. State of A.P. 2006
Criminal Law Journal 3988.
“70. In Ajit Prasad Ramakishan Singh (1972 Cri LJ 1026), the
Supreme Court, following its earlier judgment in Sukhmal Gupta, held
that it was wrong for Courts to decide, without any data, that the sample
would decompose and become incapable of analysis and that no useful
purpose would be served in sending the sample for analysis to the Director,
when there was no evidence that the sample had so deteriorated at the
time of service of summons as to be incapable of being analysed. In the
absence of evidence, that the sample has so deteriorated as to be incapable
of analysis, such a presumption would not be justified.
71. An enquiry, as to whether the sample has decomposed, whether it
is fit or unfit for analysis etc., is a statutory function required to be
discharged by the Central Food laboratory and not for this Court, in
proceedings under Section 482, Cr.P.C. to presume that every case of delay
in furnishing a copy of the Public Analyst's report, beyond the shelf life of
the product, would either result in the sample becoming decomposed or
cause prejudice to the accused.
72. As held by the Apex Court in Ajit Prasad Ramkishan Singh (1972
Cri LJ 1026), Sukhmal Gupta, Charanji Lal (1984 Cri LJ 15) and T. V.
Usman and this Court in G. S. Prasad (2003 Cri LJ (NOC) 231) and
Gangaiahnaidu Rama Krishna unless it is shown that the sample has been
rendered unfit for analysis and the reasons therefor are on account of the
delay in sending the sample for analysis and thereby prejudice has been
caused to the accused entitling them to acquittal, mere delay in furnishing
the report of the public analyst to the accused would not, by itself, be fatal
to the case of the prosecution.
73. As held in T. V. Usman (AIR 1994 SC 1818), there is no time limit
prescribed for launching prosecution. It is relevant to note that a time
limit is prescribed, under Section 9A of the P.F.A. Act, for sending the
second sample for analysis to the Public Analyst, a time limit of 10 days
was prescribed under Rule 9(j), prior to its omission with effect from 41
1977, for supplying a copy of the report of the public analyst, Rule 22
provides that the quantity of food to be sent for analysis must be as
prescribed in the table to the rule and Rule 7(3) requires the Public
Analyst to submit his report within 45 days. All these statutory provisions
were held in Tulsiram (1984 Cri LJ 1731), Dalchand v. Municipal
Corporation, Bhopal AIR 1983 SC 303 : (1983 Cri LJ 448), State of
Kerala v. Alassery Mohammed, (1978) 2 SCC 386 : (1978 Cri LJ 925)
and T. V. Usman (AIR 1974 SC 1818), to be directory and not
mandatory. When no time limit is prescribed under the Act for launching
prosecution and certain statutory provisions and rules, wherein timelimit
is prescribed, were held to be directory and not mandatory, it cannot be
said that mere delay in furnishing a copy of the report of the public
analyst to the accused, by itself and without any thing more, is fatal to the
prosecution.
74. On what basis can Courts presume that expiry of the "best before"
date or expiry of the shelflife of the product would, by itself, and without
anything more, result in rendering the sample unfit for analysis? The shelf
life of products vary from one to the other. While in certain cases the shelf
life may be as small as one week, in certain others the shelf life could be as
long as a few years. Similarly, the delay in making available a copy of the
report of the public analyst may also vary. The delay could range from a
period of a few days, after the expiry of the shelf life or the "Best Before"
date, to even a few years. Can the same yardstick be applied in all cases to
hold that the delay in making available a copy of the public analyst
report, beyond the shelf life of the product, has caused prejudice to the
accused and denied him his valuable right under Section 13(2)? Even in
cases where the report of the public analyst is made available within time,
the accused may not exercise his right to have the sample sent for analysis
to the Central Laboratory. In such cases, the report of the public analyst is
required to be accepted. Can a different yardstick be applied to cases,
where despite a copy of the report of the public analyst being furnished
immediately after the shelf life of the product has expired and the accused
does not exercise his right to have the sample sent for analysis to the
Central Laboratory, to hold that delay by itself has caused prejudice to the
accused? Answers, thereto, have necessarily to be in the negative.
75. Negligence of officials in discharging their functions, and in not
promptly furnishing a copy of the report of the public analyst to the
accused, must not result in offenders involved in adulteration of the
food/seed being permitted to go scot free, unless prejudice is established.
Legitimate prosecution should not be scuttled on mere technicalities, in the
absence of any proof of prejudice to the accused.
76. In Dalchand (1983 Cri LJ 448), the Supreme Court held thus :
".......It is well to remember that quite often many rules, though
couched in language which appears to be imperative, are no more
than mere instructions to those entrusted with the task of
discharging statutory duties for public benefit.The negligence of
those to whom public duties are entrusted cannot by statutory
interpretation be allowed to promote public mischief and cause
public inconvenience and defeat the main object of the
statute........." (Emphasis supplied)
77. Since the eventual test is one of prejudice, which is to be
established, on the facts and circumstances of each case, by way of
evidence adduced before the learned Magistrate, it is not for this Court,
under Section 482, Cr.P.C. to infer or presume that even in case of delay,
say of a few days, beyond the shelf life of the product, and in the absence
of reasonable explanation for the delay in furnishing a copy of the report
of the Public Analyst, the accused is prejudiced and his right, under
Section 13(2) of the P.F.A. Act and Section 16(2) of the Seeds Act, is
violated.
78. In exercise of its jurisdiction under Section 482, Cr.P.C. this Court
does not take upon itself the task of examining the evidence or to record
an independent finding that the delay in furnishing a copy of the public
analyst's report has resulted in prejudice to the accused. Whether the delay
is insignificant or inordinate, whether the delay is attributable to lapses of
the prosecution in making available a copy of the public analyst's report,
whether on account of the delay in making the report available, the right
of the accused under Section 13(2) of the P.F.A. Act or Section 16(2) of
the Seeds Act has been rendered illusory as the sample sent to the Central
Laboratory is found unfit for analysis due to decomposition by passage of
time or for any other reason attributed to lapses on the part of the
prosecution, whether inordinate delay in sending the sample for analysis
has, by passage of time, rendered the sample "adulterated" are all matters
to be examined by the learned Magistrate, in the facts and circumstances
of each case, on the basis of the evidence adduced. Delay, by itself and
without anything more, cannot form the basis for the High Court, in
exercise of its jurisdiction under Section 482, Cr.P.C. to quash the criminal
proceedings."
28. The learned Single Judge in para 103 of the report summed up as
under :
103. 1. Since the object and purpose of the PFA Act is to eliminate
danger to human life and health from the sale of unwholesome articles of
food, strict adherence to the PFA Act and the rules made thereunder is
essential. In offences relating to food articles, strict liability is the rule.
2. The report of the public analyst, under Section 13 (1) of the PFA
Act and Section 16(1) of the Seeds Act, forms the basis for institution of
prosecution for adulteration offences. This report, prima facie, indicates
that the accused have sold adulterated food/seed.
3. The option given for analysis to the Central Laboratory, is to
enable them to ascertain the correctness or otherwise of the findings of the
public analyst. This valuable right, under Section13(2) of the PFA Act and
Section 16(2) of Seeds Act, if denied, would cause prejudice to the accused.
4. Denial of the right of the accused, under Section13(2) of the PFA
Act and Section 16(2) of the Seeds Act, would arise only when the accused
have applied to the Court to have the sample sent for analysis to the
Central Laboratory. Failure to exercise this option or to make an
application to the Court, requesting that the sample be sent for analysis to
the Central Laboratory, would disentitle the accused from contending that
they have been denied their right under Section 13(2) of the PFA Act and
Section 16(2) of the Seeds Act. (Babulal Hargovindas (1971 Cri LJ 1075),
Sukhmal Gupta, Jagdish Prasad, (1972 Cri LJ 1309), Ajit Prasad
Ramkishan Singh (1972 Cri LJ 1026), Prabhu (1994 AIR SCW 2649),
Tulsiram (1984 Cri LJ 1731), G. S. Prasad (2003 Cri LJ NOC 231), and
Gangaiahnaidu Rama Krishna.
5. "Best Before date", under Rule 32 of the PFA Rules, merely requires
the manufacturer to indicate the period during which the product would
remain fully marketable and retain its specific qualities. Explanation VIII
(i) thereunder provides that beyond the "Best Before date", the food may
still be perfectly satisfactory.
6. Expiry of the "Best Before" date or the shelf life of the product
would only enable a manufacturer to disclaim liability regarding the
marketability and the specific qualities of the product. Expiry of the shelf
life would not automatically render the sample unfit for analysis.
7. The "Best Before" date would vary from one article to another.
Similarly the extent of delay in furnishing a copy of the report of the
public analyst to the accused would vary from one case to another.
8. Rule 4(5) of the Prevention of Food Adulteration Rules, read with
Form II of AppendixA thereof, requires the Central Laboratory to certify
as to whether the sample sent to it for analysis is fit for analysis or not
and in case it is found unfit for analysis to certify the reasons therefor.
9. The PFA Act and the Rules made thereunder cast a duty on the
Central Laboratory to certify whether or not the sample is fit for analysis.
10. Whether the sample is fit for analysis or has decomposed to such an
extent as to render it incapable of analysis are all matters to be examined
by the Central Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit
for analysis and this has resulted due to the delay on the part of the
prosecution to furnish a copy of the report of the public analyst to the
accused, can the accused be said to have suffered prejudice. (Ajit Prasad
Ramkishan Singh (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal
(1984 Cri LJ 15), T. V. Usman (AIR 1994 SC 1818), G. S. Prasad (2003
Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central
Laboratory and the Central Laboratory has not certified that the sample
has decomposed, rendering it unfit for analysis, mere delay in furnishing
the report of the public analyst to the accused cannot, by itself, be said to
have caused prejudice to the accused.
13. Power under Section 482, Cr. P. C. is to be exercised sparingly,
with circumspection, and in the rarest of rare cases. This power is not to
be used to stifle legitimate prosecution. Inherent powers under Section
482, Cr. P. C. do not confer arbitrary jurisdiction on the High Court to act
according to whim or caprice.
14. In proceedings under Section 482, Cr. P. C. the High Court does not
take upon itself the task of appreciating the evidence on record or to record
an independent finding that the delay in furnishing a copy of the report of
the public analyst has resulted in prejudice to the accused.
15. Whether delay, in furnishing a copy of the report of the public
analyst, has resulted in prejudice to the accused and whether the
prosecution has furnished a satisfactory explanation for the delay, are all
matters of evidence, to be examined by the trial Court and not for this
Court to infer in proceedings under Section 482, Cr. P.C.
16. Section 24(3) and (4) of the Insecticides Act is in pari materia with
the provisions of Section 15(3) and (4) of the Drugs and Cosmetics Act.
Under Section 24(3) of the Insecticides Act and Section 25(3) of the Drugs
and Cosmetics Act, on receipt of the report of the public analyst the person
from whom the sample has been taken, or any other person concerned, is
required, within 28 days of receipt of a copy of the report, to notify in
writing, the Inspector or the Court, of his intention to adduce evidence in
contraversion of the report.
17. In National Organics Chemical Industries Limited, Unique Farmaid
(P) Ltd. (2000 Cri LJ 2692), and Gupta Chemicals, the accused had,
under Section 24(3) of the Insecticides Act, notified their intention of
adducing evidence in contraversion of the report of the public analyst.
18. In Brijlal Mittal (1998 Cri LJ 3287) the Supreme Court held that,
in cases where the accused has not intimated his intention to adduce
evidence in contraversion of the report of the public analyst the delay, in
filing the complaint after the expiry of the shelf life of the product, could
not be made a ground to quash the prosecution.
19. In cases where the accused have not even requested or made an
application to the Court to have the sample sent for analysis to the Central
Laboratory, delay in furnishing a copy of the report of the public analyst,
beyond the shelf life of the product, cannot be made a ground to quash the
prosecution.
20. There is no provision similar to Section 24(3) and (4) of the
Insecticides Act, either under the Prevention of Food Adulteration Act or
the Seeds Act, requiring the accused to notify his intention to adduce
evidence in contraversion of the report of the public analyst.
21. Where two statutes are not in pari materia, the decision rendered
on a provision in one enactment would not constitute a binding precedent
to interpret a provision in another enactment. (Babu Khan (AIR 2001 SC
1740) and N. R. Vairamani (AIR 2004 SC 4778)."
29. I am in respectful agreement with the view taken by the learned Single
Judge of the Andhra Pradesh High Court and I propose to follow the same. The
learned Single Judge also considered the provisions of the Insecticides Act as
also relied upon in the present case by Mr. Raju, the learned advocate appearing
for the accused, where it has been held that the provisions of the P.F.A. and the
Seeds Act are not in parimateria with the provisions of the Insecticides Act.
30. The reliance on the decision of the Supreme Court in the case of
Girishbhai (supra) is also of no avail to the accused. The decision was rendered
in the facts of that case. The most important distinguishing feature of that case
is that since the report had been served on the appellant only on 17th July, 1989
by which time the sample of curd had deteriorated. The Court took the view
that any further examination of such sample had become meaningless, thereby
depriving of the valuable right conferred upon him by Section 13(2) of the Act.
31. As noted above, in the present case the right had been exercised and the
Central Food Laboratory found the sample to be fit for analysis and only
thereafter the Central Food Laboratory certified that the sample was
adulterated.
32. It appears that the applicants of the Criminal Misc. Application No. 1822
of 2002 had filed an application for discharge in the Court of the learned
Magistrate, vide application Exh.67. The discharge application was ordered to
be rejected vide order dated 21.4.2001. Being dissatisfied, the applicants had
challenged the order before the Sessions Court, by filing Criminal Revision
Application No. 56/01. The revision application was also ordered to be rejected
vide order dated 28.1.2002. Such order passed by the Revisional Court was
never challenged before this Court. However, straight way the present
application was filed, praying for quashing of the criminal proceedings.
33. In the result, both these petitions fail and are ordered to be rejected.
Rule stands discharged. Adinterim relief granted earlier stands vacated
forthwith.
(J.B.PARDIWALA, J.)
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