the conduct of the respondent authorities what clearly reflects is that though the
authorities had received the report from the Public Analyst on 31.12.2004 the
prosecution case was lodged for the first time on 28.9.2005, that is, after a span
of more than nine months from the date of receipt of the Public Analyst. Further,
from the submissions made on either side what is reflected is that the alleged
two notices referred to by the respondent of having been issued to the petitioner
on 11.11.2005 and again on 18.6.2005 are not in fact notices issued as is
required under Section 13 of the Act but are notices which were issued to the
petitioner-establishment seeking for certain information in respect of the
Directors of the company. On the contrary, the prosecution case as per the stand
of the respondent was filed on 28.9.2005. It is also not in dispute rather has not
been disputed by the Counsel for the respondent that the life of the product
stood expired on 23.6.2005 and that the prosecution case has been lodged after
more than three months from the date the life of the product had expired.
8. In the given factual position apparently upon the respondent initiating
prosecution case against the petitioner they could not have availed the remedies
which was otherwise available to them under the provisions of Section 13 of the
Act. The denial of the said remedies would definitely be detrimental to the case
of the petitioner. It is relevant at this juncture to refer to the judgment of
Municipal Corporation of Delhi (supra) wherein in para 7 it has been held as
under :
"7. It appears to us that when a valuable right is
conferred by s. 13 (2) of the Act on the vendor to have the
sample given to him analysed by the Director of the Central
Food Laboratory, it is to be expected that the prosecution will
proceed in such a manner that that right will not be denied to
him. The right is a valuable one, because the certificate of
the Director supersedes the report of the Public Analyst and
is treated as conclusive evidence of its contents. Obviously,
the right has been given to the vendor in order that, for his
satisfaction and proper defence, he should be able to have
the sample kept in his charge analysed by a greater expert
whose certificate is to be accepted by Court as conclusive
evidence. In a case where there is denial of this right on
account of the deliberate conduct of the prosecution, we
think that the vendor, in his trial, is so seriously prejudiced
that it would not be proper to uphold his conviction on the
basis of the report of the Public Analyst, even though that
report continues to be evidence in the case of the facts
contained therein."
9. It would also be trite at this juncture to also refer to a judgment of the
coordinate Bench of this Court in Crimial Misc. Petition No. 181 of 2007 decided
on 27.8.2009 wherein also on some what similar factual background of the case,
this Court relying upon the case of the Municipal Corporation of Delhi (supra)
and other judgments in this regard, had allowed the petition of the petitioners
therein quashing the criminal prosecution initiated under the Act. Since in the
instant case also the admitted factual position clearly reflect that the prosecution
case itself was lodged much beyond the expiry of the life of the product the
petitioner could not have availed the remedies which were otherwise available to-
it under the provisions of Section 13 of the Act. Moreover, there appears to be a
genuine lapse on the part of the respondent-department in not taking prompt
action on the basis of the report of the Public Analyst. The dates which have
been referred in the preceding paragraphs clearly reflect that in spite of the fact
that the sample being collected on 23.11.2004 and the report of the Public
Analyst was received on 31.12.2004 the respondent did not take any prompt
action to initiate the prosecution case against the petitioner rather for reasons
best known to the respondent-department sat over the file with only issuance of
two letters to the petitioner-establishment seeking for information in respect of
the Directors of the said establishment. In fact, the respondent ought to have
immediately proceeded in accordance with the provisions of the Act so that the
petitioner if at all intended to assail the report of the public analyst could have
got an opportunity to avail the same and denial of the same would definitely
amount to violation of the provisions of law. For the aforesaid reasons, this Court
is of the opinion that the prosecution lodged against the petitioner is in
contravention to the provisions of the Act and is in direct conflict with the
provisions of Section 13 (2) of the Act.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL MISC. PETITION NO. 714 OF 2015
Firm Ramdeo Food Products Pvt. Ltd.
Versus
State of Chhattisgarh,
Hon'ble Shri Justice P. Sam Koshy
Dated: 20/10/2016
Citation: 2017 CRLJ(NOC)70 CHH
1. The present under Section 482 of CrPC has been filed for quashment
of the Criminal Case No. 1955 of 2005 pending in the Court of Chief Judicial
Magistrate, Raipur, wherein the Respondent has initiated the prosecution case
against the Petitioner for the offence punishable under Sections 16(1)(a), 1(ii)
and (1)(c) of the Prevention of Food Adulteration Act, 1954 ('the Act', in short).
2. Facts of the case in brief are that the petitioner-establishment is
engaged in manufacture of various food products including spices. On
23.11.2004, a Food Inspector Shri S.B. Mishra had collected three packets of
coriander powder weighing 200gram each from the local distributor of the
petitioner-establishment. It is a case of the prosecution that the said sample
after it was collected on 23.11.2004 was sent to the Public Analyst for analysis
and the report from the Public Analyst was received on 31.12.2004. It is also a
case of the petitioner-establishment that after the receipt of the report of the
Public Analyst, the respondent issued notice to the petitioner on 11.1.2005 and-2-
again on 18.6.2005 both seeking information about the details of the Directors of
the petitioner-establishment. Thereafter, the prosecution case was filed for the
first time on 28.9.2005. It is this complaint case which has been registered
against the petitioner for the offence under Sections 16(1)(a), 1(ii) and (1)(c) of
the Act, which is under challenge in this petition.
3. Assailing the said registration of the complaint, Counsel for the
Petitioner submits that the entire case of the prosecution is totally baseless as
the complaint case itself has been filed much after the self-life of the product
which was collected as sample and the said filing of the complaint beyond the
self-life of the product is in total contravention of the provisions of Section 13 of
the Act. According to the Counsel for the Petitioner, the sample which was
collected had borne the packaged date of 23.4.2004 and the best life of the
product was reflected to be 8 months from the date it was packaged. Thus it was
best for use till 23.6.2005. Counsel for the Petitioner further assailing the
criminal prosecution submits that since the self-life of the product itself was till
23.6.2005 the complaint case could not have been filed by the respondent on
28.9.2006, that is, after three months from the date the self-life of the product
had expired.
4. It was further submitted by the Counsel for the Petitioner that the said
action on the part of the petitioner and the registration of complaint by the Court
below is per se contrary to the judicial pronouncement laid down by the
Supreme Court as early as in the year 1967 in the case of Municipal
Corporation of Delhi Vs. Ghisa Ram [AIR 1967 SC 970]. Referring to
paragraph 7 of that judgment, he submits that the said observations and
guidelines laid down by the Supreme Court clearly apply in the instant case and
the prosecution deserves to be quashed.
5. Counsel for the Respondent however opposing the petition submits
that the petition deserves to be rejected on the ground that the Petitioner has not
brought the correct facts to the notice of the Court inasmuch as after the report
of the Public Analyst was received on 31.12.2004 the authorities of the
respondent-department had issued two notices to the petitioner-establishment
and on both occasions there was no response from the petitioner's side and
therefore the petitioner cannot now raise a hue and cry of not getting an
opportunity of proper defence after the report of the public analyst was received.
According to the Counsel for the respondent in case the petitioner-establishment
intends to question the report of the public analyst it ought to had been
immediately/promptly replied to the notice issued to it and should have
ventilated its grievance and having not done so the petitioner cannot now turn
around and cry fowl of the action of the part of the respondent, and thus prayed
for the rejection of the petition.
6. Having considered the rival contentions put forth on behalf of either
side and on perusal of the record the admitted fact on the basis of the pleadings
and submissions made on either side is that the petitioner-establishment is in
the business of manufacturing of various food products including spices.
Indisputably, the Food Inspector, S.B. Mishra had collected sample from one of
the distributors of the petitioner-establishment on 23.11.2004. The said sample
was sent for public analyst and report of which was received on 31.12.2004. As
per the provisions of the Act immediately on receipt of the report of the Public
Analyst the authorities ought to have initiated action against the petitionerestablishment
after the report was found to be negative against the petitioner
and should have complied with the statutory requirement as is required under
Section 13 of the Act which for ready reference is reproduced as under :
“13. Report of public analyst.— [(1) 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.
(2) On receipt of the report of the result of the analysis under
sub-section (1) to the effect that the article of food is
adulterated, the Local (Health) Authority shall, after the
institution of prosecution against the 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-4-
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 ten days from the date of receipt of the
copy of the report to get the sample of the article of food
kept by the Local (Health) Authority analysed by the Central
Food Laboratory.
(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 receipt
of such requisition.
(2B) On receipt of the part or parts of the sample from the
Local (Health) Authority under sub-section (2A), the court
shall first ascertain that the mark and seal or fastening as
provided in clause (b) of sub-section (1) of section 11 are
intact and the signature or thumb impression, as the case
may be, is not tampered with, and despatch the part or, as
the case may be, one of the parts of the sample under its
own seal to the Director of the Central Food Laboratory who
shall thereupon send a certificate to the court in the
prescribed form within one month from the date of receipt of
the part of the sample specifying the result of the analysis.
(2C) Where two parts of the sample have been sent to the
court and only one part of the sample has been sent by the
court to the Director of the Central Food Laboratory under
sub-section (2B), the court shall, as soon as practicable,
return the remaining part to the Local (Health) Authority and
that Authority shall destroy that part after the certificate from
the Director of the Central Food Laboratory has been
received by the court:
Provided that where the part of the sample sent by the
court to the Director of the Central Food Laboratory is lost or
damaged, the court shall require the Local (Health) Authority
to forward the part of the sample, if any, retained by it to the
court and on receipt thereof, the court shall proceed in the
manner provided in sub-section (2B).
(2D) Until the receipt of the certificate of the result of the
analysis from the Director of the Central Food Laboratory,
the court shall not continue with the proceedings pending
before it in relation to the prosecution.
(2E) If, after considering the report, if any, of the food
inspector or otherwise, the Local (Health) Authority is of the
opinion that the report delivered by the public analyst under
sub-section (1) is erroneous, the said Authority shall forward
one of the parts of the sample kept by it to any other public
analyst for analysis and if the report of the result of the
analysis of that part of the sample by that other public
analyst is to the effect that the article of food is adulterated,
the provisions of sub-sections (2) to (2D) shall, so far as may
be, apply.]-5-
(3) The certificate issued by the Director of the Central Food
Laboratory [under sub-section (2B)] shall supersede the
report given by the public analyst under sub-section (1).
(4) Where a certificate obtained from the Director of the
Central Food Laboratory [under sub-section (2B)] is
produced in any proceeding under this Act, or under sections
272 to 276 of the Indian Penal Code (45 of 1860), it shall not
be necessary in such proceeding to produce any part of the
sample of food taken for analysis.
(5) Any document purporting to be a report signed by a
public analyst, unless it has been superseded under subsection
(3), or any document purporting to be a certificate
signed by the Director of the Central Food Laboratory, may
be used as evidence of the facts stated therein in any
proceeding under this Act or under sections 272 to 276 of
the Indian Penal Code (45 of 1860):
[Provided that any document purporting to be a certificate
signed by the Director of the Central Food Laboratory [not
being a certificate with respect to the analysis of the part of
the sample of any article of food referred to in the proviso to
sub-section (1A) of section 16] shall be final and conclusive
evidence of the facts stated therein.]
[Explanation.—In this section, and in clause (f) of subsection
(l) of section 16, “Director of the Central Food
Laboratory” shall include the officer for the time being in
charge of any Food Laboratory (by whatever designation he
is known) recognised by the Central Government for the
purposes of this section.]”
7. Taking note of the provisions of Section 13 of the Act, if we look into
the conduct of the respondent authorities what clearly reflects is that though the
authorities had received the report from the Public Analyst on 31.12.2004 the
prosecution case was lodged for the first time on 28.9.2005, that is, after a span
of more than nine months from the date of receipt of the Public Analyst. Further,
from the submissions made on either side what is reflected is that the alleged
two notices referred to by the respondent of having been issued to the petitioner
on 11.11.2005 and again on 18.6.2005 are not in fact notices issued as is
required under Section 13 of the Act but are notices which were issued to the
petitioner-establishment seeking for certain information in respect of the
Directors of the company. On the contrary, the prosecution case as per the stand
of the respondent was filed on 28.9.2005. It is also not in dispute rather has not
been disputed by the Counsel for the respondent that the life of the product
stood expired on 23.6.2005 and that the prosecution case has been lodged after
more than three months from the date the life of the product had expired.
8. In the given factual position apparently upon the respondent initiating
prosecution case against the petitioner they could not have availed the remedies
which was otherwise available to them under the provisions of Section 13 of the
Act. The denial of the said remedies would definitely be detrimental to the case
of the petitioner. It is relevant at this juncture to refer to the judgment of
Municipal Corporation of Delhi (supra) wherein in para 7 it has been held as
under :
"7. It appears to us that when a valuable right is
conferred by s. 13 (2) of the Act on the vendor to have the
sample given to him analysed by the Director of the Central
Food Laboratory, it is to be expected that the prosecution will
proceed in such a manner that that right will not be denied to
him. The right is a valuable one, because the certificate of
the Director supersedes the report of the Public Analyst and
is treated as conclusive evidence of its contents. Obviously,
the right has been given to the vendor in order that, for his
satisfaction and proper defence, he should be able to have
the sample kept in his charge analysed by a greater expert
whose certificate is to be accepted by Court as conclusive
evidence. In a case where there is denial of this right on
account of the deliberate conduct of the prosecution, we
think that the vendor, in his trial, is so seriously prejudiced
that it would not be proper to uphold his conviction on the
basis of the report of the Public Analyst, even though that
report continues to be evidence in the case of the facts
contained therein."
9. It would also be trite at this juncture to also refer to a judgment of the
coordinate Bench of this Court in Crimial Misc. Petition No. 181 of 2007 decided
on 27.8.2009 wherein also on some what similar factual background of the case,
this Court relying upon the case of the Municipal Corporation of Delhi (supra)
and other judgments in this regard, had allowed the petition of the petitioners
therein quashing the criminal prosecution initiated under the Act. Since in the
instant case also the admitted factual position clearly reflect that the prosecution
case itself was lodged much beyond the expiry of the life of the product the
petitioner could not have availed the remedies which were otherwise available to-
it under the provisions of Section 13 of the Act. Moreover, there appears to be a
genuine lapse on the part of the respondent-department in not taking prompt
action on the basis of the report of the Public Analyst. The dates which have
been referred in the preceding paragraphs clearly reflect that in spite of the fact
that the sample being collected on 23.11.2004 and the report of the Public
Analyst was received on 31.12.2004 the respondent did not take any prompt
action to initiate the prosecution case against the petitioner rather for reasons
best known to the respondent-department sat over the file with only issuance of
two letters to the petitioner-establishment seeking for information in respect of
the Directors of the said establishment. In fact, the respondent ought to have
immediately proceeded in accordance with the provisions of the Act so that the
petitioner if at all intended to assail the report of the public analyst could have
got an opportunity to avail the same and denial of the same would definitely
amount to violation of the provisions of law. For the aforesaid reasons, this Court
is of the opinion that the prosecution lodged against the petitioner is in
contravention to the provisions of the Act and is in direct conflict with the
provisions of Section 13 (2) of the Act.
10. The petition thus deserves to be and is accordingly allowed. The
criminal prosecution against the petitioner in Complaint Case No. 1955 of 2005
pending before the Chief Judicial Magistrate, Raipur stands quashed.
Sd/-
(P. Sam Koshy)
/sharad/ Judge
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