the sample has gone and thereafter the complaint has been filed and
therefore, the valuable right of the accused to get the sample further
analyzed by the Central Food Laboratory has been taken away and/or
grave prejudice shall be caused to the accused is concerned, at this stage
Rule 32 of the Rules is required to be referred to. “Best Before Date”
under Rule 32 of the 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. Expiry of the “Best Before Date” or the shelflife of the
product would only enable the manufacturer to disclaim liability
regarding the marketability and the specific qualities of the product.
Expiry of the shelflife would not automatically render the sample unfit
for analysis. Therefore, unless and until the sample is sent to the Central
Food Laboratory that too on the application made by the accused and
the Central Food Laboratory certifies that the sample is unfit for analysis
because of the delay, the contention on behalf of the accused would be
merely on assumption and presumption. That on mere apprehension
and/or assumption and presumption, the criminal complaint is not
required to be quashed and set aside and that too in exercise of powers
under Section 482 of the CrPC.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 10672 of 2010
HOTEL SAVERA THRO' ITS PARTNERS & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 13/02/2015
Citation;2016 CRLJ 1070 GUJ
[1.0] Present application under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred
by the applicants herein – original accused Nos.1 to 4 to quash and set
aside the impugned criminal proceedings / criminal complaint being PFA
Case No.4/2007 pending in the Court of learned JMFC (Municipality),
Surat filed by the Food Inspector, Surat Municipal Corporation for the
offences punishable under Sections 7 and 16 of the Prevention of Food
Adulteration Act, 1954 (hereinafter referred to as “PFA Act”).
[2.0] That the Food Inspector, Surat Municipal Corporation – original
complainant drawn the sample of “Anuj Bread Spread” from the
premises of Hotel Savera at Surat on 02.08.2006. That the said sample
was immediately and after following the due procedure was sent to the
Public Health Laboratory, Surat on 02.08.2006. That as it was found that
the said sample “Anuj Bread Spread” was not as per the prescribed
standard provided under the Rules framed under the PFA Act and thus
found to be adulterated, the Food Inspector, Surat Municipal
Corporation had filed the impugned complaint on 20.02.2007 against
the accused persons – manufacturer as well as vendor including the
applicants for the offences punishable under Sections 7 and 16 of the
PFA Act. That the learned Magistrate had issued the summonses /
process against all the accused for the offences punishable under Section
7 of the PFA Act on 20.02.2007. That all the applicants herein were
served with the summonses and they appeared through their advocate.
That thereafter after a period of approximately 3 years, the applicants
herein – original accused Nos.1 to 4 have preferred the present criminal
miscellaneous application under section 482 of the CrPC to quash and
set aside the impugned criminal proceedings/complaint in exercise of
powers under section 482 of the CrPC.
[3.0] Shri P.P. Majmudar, learned advocate appearing on behalf of the
original applicants herein – original accused Nos.1 to 4 has vehemently
submitted that in the present case the samples of “Anuj Bread Spread”
were collected on 02.08.2006 and the same were sent to the Public
Analyst on the same day and the report of the Public Analyst dated
01.09.2006 was received by the complainant and thereafter the
impugned complaint has been filed on 20.02.2007. It is submitted that
infact the date of expiry of the sample “Anuj Bread Spread” was six
months. It is submitted that therefore the expiry date of the sample
“Anuj Bread Spread” would be 31.01.2007, whereas the impugned
complaint is filed on 20.02.2007 and therefore right of the accused to
get the sample examined by the Central Food Laboratory as provided
under section 13(2)(b) of the PFA Act is violated as the said sample
would not be fit for any analysis by the Central Food Laboratory. It is
submitted that therefore, the valuable right of the accused to get the
sample analyzed through the Central Food Laboratory has been violated
and/or taken away and therefore, this is a fit case to exercise the powers
under Section 482 of the CrPC and to quash and set aside the impugned
criminal proceedings/complaint.
[3.1] Shri Majmudar, learned advocate appearing on behalf of the
applicants has heavily relied upon the following decisions of the learned
Single Judge of this Court in support of his request to quash and set
aside the impugned criminal proceedings in exercise of powers under
Section 482 of the CrPC.
1. Mukesh Laljibhai Thakkar vs. Food Inspector C/o.Food, Drug
Control
2014(2) Crimes (HC) 370
2. Ushodaya Enterprises Pvt. Ltd. (Priority Food Division) s. State of
Gujarat
2014(1) GLR 182
3. Nestle India Limited, thro R.K. Rajput, Manager (Sales) & Anr. vs.
State of Gujarat & Anr.
Unreported decision of the learned Single Judge in Criminal Misc.
Application No.10732/2010
No other submissions have been made.
[3.2] Making above submissions and relying upon above decisions, it is
requested to allow the present application and quash and set aside the
impugned criminal proceedings/criminal complaint.
[4.0] Present application is opposed by Shri Shah, learned advocate
appearing on behalf of the respondent No.2 – Food Inspector and Ms.
Nisha Thakore, learned APP appearing on behalf of the State.
It is vehemently submitted by the learned advocates appearing on
behalf of the respective respondents that in the present case as such
there is no delay at all more particularly any delay on the part of the
Food Inspector. It is submitted that in the present case the sample was
drawn on 02.08.2006 and immediately thereafter and after following
due procedure as required, the same was sent to the Public Health
Laboratory, Surat on 02.08.2006. It is submitted that as it was found
that the said sample was not as per the prescribed standard provided
under the Rules framed under the PFA Act and thus found to be
adulterated, after obtaining necessary sanction from the appropriate
authority, the Food Inspector, Surat Municipal Corporation had filed the
impugned complaint on 20.02.2007 against the accused persons –
manufacturer as well as vendor including the applicants.
[4.1] It is further submitted that as such there is a delay on the part of
the applicants in preferring the present application inasmuch as after a
period of approximately 3 years from the date of filing of the complaint,
the applicants herein – original accused Nos.1 to 4 have preferred the
present Criminal Misc. Application under Section 482 of the CrPC.
[4.2] It is further submitted by the learned advocates appearing on
behalf of the respective respondents that the impugned criminal
complaint/proceedings which is filed for the offences under the PFA Act
is sought to be quashed and set aside solely on the ground that the
expiry date of the sample was 31.01.2007, whereas the impugned
complaint has been filed on 20.02.2007 i.e. after the expiry date of the
sample and therefore, right of the accused to get the sample examined
by the Central Food Laboratory as provided under Section 13(2)(b) of
the PFA Act is violated, as the said sample would not be fit for any
analysis by the Central Food Laboratory. However, it is submitted that
the applicants had never submitted any application before the learned
Magistrate to send the sample to the Central Laboratory and/or has
never made any request before the learned Magistrate to get the sample
tested by the Central Food Laboratory. It is submitted that the
contention and submissions on behalf of the applicants are absolutely on
presumption and assumption. It is submitted that unless and until on the
application made by the accused, the sample is sent to the Central Food
Laboratory and unless and until after the analysis, the Central Food
Laboratory opines that the sample has become deteriorated and/or
decomposed and therefore, not fit for analysis, there shall not be such a
presumption that the sample has become decomposed and/or
deteriorated and/or not fit for analysis. It is submitted that on the basis
of mere apprehension that by the passage of time the sample must have
become decomposed and/or deteriorated, the complaint may not be
quashed in exercise of powers under Section 482 of the CrPC. It is
submitted that allegation of prejudice are not only to be pleaded but
they are required to be demonstrated and/or proved and actual
prejudice is required to be demonstrated and proved. It is submitted that
mere allegation of prejudice would not suffice at this stage to quash the
impugned complaint in exercise of powers under Section 482 of the
CrPC.
[4.3] Now, so far as the submissions on behalf of the applicants to
quash and set aside the impugned criminal proceedings/complaint on
the ground that the expiry date of the sample had gone and thereafter
the impugned complaint has been filed and therefore, right of the
accused to get the sample analysis / examined by the Central Food
Laboratory as provided under Section 13(2)(b) of the PFA Act has been
violated, as the said sample would not be fit for analysis by the Central
Food Laboratory is concerned, it is vehemently submitted by the learned
advocates appearing for the respective respondents that as such on the
aforesaid ground the impugned criminal proceedings/complaint may not
be quashed at this stage and that too in exercise of powers under Section
482 of the CrPC. It is submitted that at this stage the Courts cannot
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. It is submitted that the shelflife
of the products may vary from one to the other.
[4.4] It is further submitted that “best before’ date under Rule 32 of the
Rules, merely requires the manufacturer to indicate the period during
which the product would remain fully marketable and retain its specific
qualities. It is submitted that Explanation VIII (i) provides that beyond
the "Best Before date", the food may still be perfectly satisfactory. It is
submitted that expiry of the “best before date” for the shelflife of the
product would only enable the manufacturer to disclaim liability
regarding the marketability and the specific qualities of the product. It is
submitted that expiry of the shelf life would not automatically render the
sample unfit for analysis.
[4.5] It is further submitted that under the PFA Act and the Rules made
thereunder, a duty is cast on the Central Food Laboratory to
examine/opine whether or not the sample is fit for analysis. It is
submitted that 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 Food Laboratory. It is submitted that denial
of the right of the accused, under Section 13(2) of the PFA Act would
rise only when the accused have applied to the Court to have the sample
sent for analysis to the Central Food Laboratory. It is submitted that
failure to exercise this option or to make an application to the Court,
requesting that the sample be sent for analysis to the Central Food
Laboratory, would disentitle the accused from contending that they have
been denied the right under Section 13(2) of the PFA Act.
[4.6] It is submitted that if the sample has not been sent for analysis to
the Central Food Laboratory and the Central Food 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. It is
submitted that it is only if the Central Food 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.
[4.7] It is submitted that as per catena of decisions of Hon’ble Supreme
Court as well as this Court, powers under Section 482 of the CrPC is to
be exercised sparingly, with circumspection, and in the rarest of rare
cases. It is submitted that in the present application under Section 482 of
the CrPC, the High Court does not take upon itself the task of
appreciating the evidence on record or to record the independent finding
that the delay in furnishing the copy of the report of the Public Analyst
has resulted in prejudice to the accused.
[4.8] Relying upon recent decision of the learned Single Judge of this
Court in the case of Pepsi Co. India Holdings Ltd. thro its Officer Vinay
Mathur & Anr. vs. State of Gujarat & Anr. dated 11.12.2014 in
Criminal Misc. Application Nos.1821/2002 with Criminal Misc.
Application No.1822/2002 and the decision of the learned Single Judge
of the Andhra Pradesh High Court in the case of M/s. Hyderabad
Beverages Private Limited etc. vs. State of A.P. reported in 2006 Cri. L.
J. 3988 and the decision of the Hon’ble Supreme Court in the case of
Ajit Prasad Ramakishan Singh reported in 1972 Cri.L.J. 1026 it is
requested to dismiss the present application and not to quash and set
aside the impugned criminal proceedings in exercise of powers under
Section 482 of the CrPC.
Making above submissions and relying upon above decisions, it is
requested to dismiss the present application.
[5.0] Heard learned advocates appearing for respective parties at
length.
At the outset it is required to be noted that the present application
has been preferred by the applicants herein – original accused Nos.1 to 4
to quash and set aside the impugned criminal proceedings/complaint for
the offences under the PFA Act, in exercise of powers under Section 482
of the CrPC. The impugned criminal proceedings/complaint is sought to
be quashed and set aside mainly on the ground that the impugned
criminal complaint has been filed and the report of the Public Analyst,
Surat has been given to the accused after the expiry date of the sample
and therefore, the valuable right of the accused to get the sample tested
by the Central Food Laboratory conferred under Section 13(2) of the
PFA Act has been taken away and/or violated, as the expiry date of the
sample has gone, the sample would be unfit for analysis by the Central
Food Laboratory and therefore, grave prejudice shall be caused to the
applicants.
[5.1] Now, so far as the first ground on which the impugned complaint
is requested to be quashed and set aside i.e. delay in filing the complaint
and the prejudice that may be caused to the accused and/or taking away
the right of the accused to get the sample tested through Central
Laboratory as conferred under Section 13(2) of the PFA Act is
concerned, the submission seems to be attractive but has no substance.
At the outset it is required to be noted that as such no application has
been submitted by the accused and/or any request is made by the
accused before the learned Magistrate to send the sample to the Central
Laboratory. Therefore, as such the accused has not exercised the option
which is conferred under Section 13(2) of the PFA Act of getting the
sample examined through the Central Food Laboratory. Therefore, the
contention on behalf of the applicants that a valuable right of the
applicants to get the sample tested through Central Food Laboratory has
been taken away cannot be accepted.
[5.2] Now, so far as the contention on behalf of the applicants that
because of the delay in filing the complaint, the valuable right of the
applicants to get the sample tested through Central Food Laboratory as
conferred under Section 13(2) of the PFA Act has been taken away
and/or has been violated and/or a great prejudice would be caused to
the applicants as because of such delay the sample might have become
decomposed and/or deteriorated. However, the aforesaid allegations are
only on presumption and assumption. Unless and until any request is
made to send the sample to the Central Laboratory, by exercising the
option as conferred under Section 13(2) of the PFA Act and unless and
until the sample is sent to the Central Food Laboratory and thereafter,
after analysis it is opined by the Central Food Laboratory that as such the
sample has deteriorated and/or decomposed, on such presumption and
assumption that it must have been deteriorated and/or decomposed, the
criminal proceedings cannot be quashed in exercise of powers under
Section 482 of the CrPC and that too for the offences under the PFA Act.
In the case of Ajit Prasad Ramakishan Singh (Supra), the Hon’ble
Supreme Court after its earlier judgment in the case of Sukhmal Gupta
(Supra) has specifically observed and 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. It is further
observed that in absence of evidence, that the sample has so deteriorated
as to be incapable of analysis, such a presumption would not be justified.
[5.3] The main contention on behalf of the applicants in support of their
prayer to quash and set aside the impugned criminal complaint is that
expiry date of the sample was 31.01.2007, whereas the impugned
complaint has been filed on 20.02.2007 i.e. after expiry date of the
sample and therefore, right of the accused to get the sample examined
by the Central Food Laboratory as provided under Section 13(2)(b) of
the PFA Act has been violated and/or great prejudice would be caused to
the applicants – accused as the said sample would not be fit for analysis
by the Central Food Laboratory. However, it is required to be noted that
the present criminal miscellaneous application has been preferred by the
accused after a period of three months of service of the summons of the
criminal complaint. Nothing is on record that immediately after service
of the summons and the accused have appeared before the learned trial
Court, they had made an application to send the sample to the Central
Food Laboratory for further analysis. The option given for analysis to the
Central Food Laboratory, is to enable the accused to ascertain the
correctness and/or finding of the Public Analyst. The said valuable right,
under Section 13(2) of the PFA Act would cause prejudice to the accused
only, if denied. Denial of right of the accused, under Section 13(2) of the
PFA Act, would rise only when the accused have applied to the Court to
have the sample sent for analysis to the Central Food 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 Food Laboratory,
would disentitle the accused from contending that they have been
denied the right under Section 13(2) of the PFA Act.
[5.4] Even otherwise whether the sample is fit for analysis or has
decomposed to such an extent as to render it incapable for analysis are
all matters to be examined by the Central Food Laboratory. It is only if
the Central Food Laboratory certifies that the sample is unfit for analysis,
the accused can be said to have suffered the prejudice. If the sample is
sent for analysis to the Central Food Laboratory and the Central Food
Laboratory has not certified that the sample decomposed, rendering it
unfit for analysis, merely because the expiry date of the sample has
gone, by itself, it cannot be said that it has caused prejudice to the
accused.
[5.5] The contention on behalf of the applicants that the expiry date of
the sample has gone and thereafter the complaint has been filed and
therefore, the valuable right of the accused to get the sample further
analyzed by the Central Food Laboratory has been taken away and/or
grave prejudice shall be caused to the accused is concerned, at this stage
Rule 32 of the Rules is required to be referred to. “Best Before Date”
under Rule 32 of the 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. Expiry of the “Best Before Date” or the shelflife of the
product would only enable the manufacturer to disclaim liability
regarding the marketability and the specific qualities of the product.
Expiry of the shelflife would not automatically render the sample unfit
for analysis. Therefore, unless and until the sample is sent to the Central
Food Laboratory that too on the application made by the accused and
the Central Food Laboratory certifies that the sample is unfit for analysis
because of the delay, the contention on behalf of the accused would be
merely on assumption and presumption. That on mere apprehension
and/or assumption and presumption, the criminal complaint is not
required to be quashed and set aside and that too in exercise of powers
under Section 482 of the CrPC.
[5.6] In the case of M/s. Hyderabad Beverages Private Limited etc.
(Supra), in paras 70 to 78 and 103, it is observed and held as under:
“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 411977, 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 time limit 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.
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."
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 Appendix A 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.”
[5.7] Identical question came to be considered by the learned Single
Judge in the recent decision in the case of Pepsi Co. India Holdings Ltd.
thro its Officer Vinay Mathur & Anr. (Supra) and after considering the
aforesaid decision of the Andhra Pradesh High Court and after
considering other decisions of the Hon’ble Supreme Court as well as
other High Courts on the issue, the learned Single Judge has refused to
quash and set aside the complaint for the offences punishable under the
PFA Act.
[5.8] There cannot be any presumption that the sample must have been
deteriorated and/or decomposed and/or would have become incapable
of being further analyzed by the Central Food Laboratory. Whether the
delay in furnishing the copy of the report of the Public Analyst and/or
delay in filing the complaint and that too after the expiry date of the
sample, 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 learned trial Court and not
for this Court in exercise of powers under Section 482 of the CrPC. As
per the catena of decisions of the Hon’ble Supreme Court as well as this
Court, the power under Section 482 of the CrPC are to be exercised
sparingly with great circumspection and in rarest of rare cases.and in the
rarest of rare cases. This power is not to be used to stifle legitimate prosecution.
It is required to be noted that in the present case as such the Public
Analyst, Surat had infact found the sample adulterated. The sample was
drawn on 02.08.2006 and immediately and after following the
procedure as required, it was sent to the Public Health Laboratory, Surat
on 02.08.2006 and it was found that the said sample was not as per the
prescribed standard provided under the Rules framed under the PFA Act
and thus, found to be adulterated. According to the accused the expiry
date of the sample was 31.01.2007 however, immediately after
obtaining the sanction from the appropriate authority, the impugned
complaint has been filed on 20.02.2007.
[5.9] Now, so far as the reliance placed upon the decision of the learned
Single Judge in the case of Nestle India Limited, thro R.K. Rajput,
Manager (Sales) & Anr. (Supra) rendered in Criminal Misc. Application
No.10732/2010 is concerned, on facts the said decision would not be
applicable to the facts of the case on hand. In the case before the learned
Single Judge considering the item which was tomato ketchup and the
delay of four years and it was found to be a perishable item. The learned
Single Judge exercised the powers under Section 482 of the CrPC.
However, it is required to be noted that in the said decision the learned
Single Judge did refer to the decision of the Hon’ble Supreme Court in
the case of Prabhu v. State of Rajasthan reported in 1994 AIR SCW
2649 wherein the Apex Court observed that the accused did not avail of
the opportunity to make application to Court for sending the sample to
the Laboratory for analysis as provided under section 13(2) and
therefore, in that view, the Apex Court observed that it cannot be stated
that the accused suffered any prejudice on account of delay. Even in the
said decision the learned Single Judge also referred to the decision of the
Hon’ble Supreme Court in the case of Babulal vs. State of Gujarat
reported in AIR 1971 SC 1277 and the decision of the Punjab & Haryana
High Court in the case of Ramesh Chand vs. State of Haryana reported
in 2005 CrLJ 1569. Even the decision of the learned Single Judge in the
case of Mukesh Laljibhai Thakkar (Supra) would not be applicable to the
facts of the case on hand more particularly in the aforesaid case the
complaint was filed after a period of 25 months from the date on which
the sample came to be collected.
[6.0] In view of the above and for the reasons stated above, this Court is
of the firm opinion that this is not a fit case to quash and set aside the
impugned criminal complaint which has been filed for the offences
under the PFA Act and the Rules in exercise of powers under Section 482
of the CrPC. Under the circumstances, present application fails and the
same deserves to be dismissed and is, accordingly, dismissed. Rule is
discharged. Adinterim relief granted earlier, if any, stands vacated
forthwith.
Sd/-
(M.R. SHAH, J.)
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