that the oil was manufactured on 22-6-2004 and the shelf
life was six months but the complaint was filed after 16
months and so the right given under section 13(2) of the
Act was lost. This contention is also not acceptable.
Report of the Public Analyst shows that the sample sent
was fit for testing. At this stage, it needs to be presumed
that the procedure as laid down in section 13 of the Act
was followed. It is not the case of the applicants that the
applicants wanted to avail the right and they had followed
the procedure as laid down in section 13(2) for sending
the second sample. Further, in the present matter the
substances mentioned in the report were found in the
edible oil. At this stage it cannot be said that such
substance is a bye-product when such oil is extracted
from seeds. Mixture of such substance is apparently not
permissible. In view of these circumstances the accused
ought to have exercised the right given under section
13(2) of the Act as the Local Health Laboratory had given
report that the sample was fit for testing and the sample
was found to be adulterated.
8) Learned counsel for the applicants placed
reliance on some reported and un-reported cases. In the
case reported as 1985 Cr.L.J. 1255 (Bombay High Court)
(Y.M. Koli v. D.A. Kokani) the Court held that the accused
was entitled to acquittal if on account of delay in filing
complaint the remaining samples had become unfit for
analysis. The substance involved was milk. In the case
reported as 2010(2) FAC 239 (Nagpur Bench) (Shivkumar
vs. State of Maharashtra) the matters involving
substances like mixed fruit jam, Rex Pineapple jam, Anik
ghee and Nutrela Vanaspati were considered. Samples
were apparently collected in April 1996 and prosecution
was instituted on 7-7-1999. It was held that there was no
compliance of section 13(2) of the Act as the report of the
Public Analyst was not sent to the person from whom
sample was taken. In view of the facts of those cases
criminal applications were allowed and the prosecution
and the cases were quashed. It needs to be observed that
in view of provisions of section 13(2) and 13(2-A) right
needs to be exercised by the accused and there is no
provision in the Act showing that the Court needs to act
with the presumption that after shelf life period, the food
article gets destroyed, it becomes unfit for testing. Food
substance may be different in each case. What can be true
in case of milk collected from container or curd collected
from container may not be true in respect edible oil
collected from closed tin after opening it. Further, as
already observed, in view of the definition of adulterant, in
some cases things which are found as adulterant cannot
come in existence due to process of decomposition.
Unless there is report of the laboratory that the sample is
not fit, the Court cannot raise such presumption. Each
case needs to be dealt with separately on the facts and
circumstances of that case. So, with due respect this
Court observes that the observations made in the cases
cited supra are of no use in the present matter.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Application No.2841 of 2006
Cargill Foods India Ltd. V The State of Maharashtra.
CORAM: T.V. NALAWADE, J.
DATE : 25 JANUARY 2017
Citation: 2017 ALLMR(CRI) 1397
1) The proceeding is filed for relief of quashing
and setting aside the criminal case bearing RCC
No.51/2006 presently pending in the Court of the learned
Judicial Magistrate First Class Shevgaon, District
Ahmednagar. Relief of setting aside the order made by the
Juridical Magistrate on 2-5-2006 like order of issue
process is also claimed. Both the sides are heard.
2) The applicants are accused Nos.2 and 3.
Learned Judicial Magistrate has taken cognizance of the
offence punishable under section 7(1) read with section
2(1)(a),(ia),(m) punishable under section 16 of the
Prevention of Food Adulteration Act, 1954 (hereinafter
"the Act") and the Prevention of Food Adulteration Rules,
1955 (hereinafter "the Rules"), framed thereunder. One
Hostel namely Dr. Babasaheb Ambedkar Boys Hostel
Shevgaon, District Ahmednagar was run by one Manohar
Tupe. There was a closed box of tin containing 15 liters of
Jemini brand refined sunflower oil. From that container
sample was collected of sunflower oil by purchasing it
from Manohar Tupe. The sample was closed and sealed in
presence of panch witnesses after preparing three parts of
it. One sample was sent to the Local Health Authority and
the report showed that the sample contained linolenic acid
3.2%. As it was found that the sample was not conforming
to the standards of sunflower oil as given in the Act and
the Rules, inquiry was made with Tupe about the source.
Tupe informed that he had purchased the tin box
containing the aforesaid oil from accused No.1. On inquiry
it revealed that, the tin was supplied by accused No.3
Company and accused No.2 was nominee of accused No.3,
Company. Complaint came to be filed after obtaining
consent.
3) Learned counsel for the applicants argued on
many grounds for getting the relief. He submitted that in
view of provisions of section 10(1) and 10(2) of the Act,
sample can be collected only from the persons mentioned
in these two parts and not from the hostel where the oil
was kept for use. He placed reliance on two reported
cases on this point. In the case reported as 2014(1) FAC
198 (Rupak Kumar v. State of Bihar). The Apex Court
held that the Jail Superintendent cannot be prosecuted if
the food article is recovered from jail and it is found to be
substandard or adulterated. Thus, the prosecution was
against the Superintendent of Jail when the jail authority
had purchased the food article from other person, vendor.
In other case reported as 2005 ALL MR (Cri) 402 (K.R.
Venkatachalam v. State of Maharashtra) this Court at
Nagpur Bench has held that the Principal of school cannot
be prosecuted if the sample of food article like groundnut
oil was purchased by him and was found stored in
residential school. In that case also it was held that he
was consumer and the provisions of the Act can be used
against vendor. Thus, the facts of these two reported
cases were altogether different. Provision of section 12 of
the Act needs to be kept in mind. This provision shows the
scope of the Act is very wide. In the present case
necessarily the person who was running the hostel will be
the witness and the case will be tried against the vendor
and the manufacturer. Thus, the observations made in
aforesaid two cases can be of no use in the present matter.
4) Learned counsel for the applicants submitted
that the standards of refined sunflower oil are given
Appendix B at A.17.15 and A.17.22 and there the standard
of linolenic acid is not mentioned and no tests are
prescribed for detecting such substance. He submitted
that on this ground the accused are entitled to the relief.
This submission is also not at all acceptable. While
considering such defence, the Court is expected to
consider the definition of "adulterant" given in section 2(i)
of the Act and the definition of "adulterated" given in
section 2(ia) of the Act. In the present matter there is
allegation that there was adulteration as mentioned in
section 2(ia) and (m). Definition of “adulterated" is wide
enough to include the substance like the aforesaid acid
which can be treated as adulterant and which is not
demanded by the purchaser. At this stage it needs to be
presumed that the substance is not of the nature or
quality which it purports or it represented to be and it
falls below the prescribed standard. The contention that
such provision of the Act and Rules needs to be
specifically mentioned by the Analyst in the report cannot
be accepted at this stage in view of the definition given in
aforesaid provisions of the Act.
5) On the aforesaid point reliance was placed by
the learned counsel for the applicants on the case
reported as 2015 (1) FAC 197 (Shantilal Bansilal
Bhandari v. The State of Maharashtra) of Aurangabad
Bench of this Court and the case of the Supreme Court
reported as 2004(2) FAC 151 (Dinesh v. State of M.P.).
The substance involved in the case of Shantilal (supra)
was Besan and on microscopic examination some
substance which was not expected to be there in Besan
was noticed and there were following substances.
"Appearance - Creamish coloured coarse powder.
(1) Total Ash - 2.42%.
(2) Ash insoluble in HCL - 0.22%
(3) Microscopic Examination - Gram starch + Foreign
starch observed.
(4) Test for B.O.A.A. Negative
(5) Test for colour - No extraneous colour and I am of
the opinion that the sample of "Besan" bearing Code
No. ABD/22/N and Sr. No.5255 does not confirm to the
standards of "BESAN" as per Item No. A.18.04 of the
Appendix 'B' of the P.F.A Rules, 1955".
The Hon'ble Judge observed that the Public Analyst was
not expected to adopt microscopic test. With due respect
to the Hon'ble Judge this Court holds that these
observations cannot be used in the present matter.
6) In the case of Dinesh (supra) the Apex Court
held that ingredients found in the mixture of Kesari Dal
were within prescribed limit. There were other substances
like the powder of Kesari found in a particular percentage
had changed quality of the food article or had made it
injurious. Provision of Rule 44A was not applicable in the
State at the relevant time in this regard and so it was held
that the provision of Rule 44A could not have been used.
These facts were totally different and there was question
of use of some prohibition made by State of M.P. by
making one rule and that rule was not in existence when
the sample was collected. Thus, the cases on which
reliance is placed are of no use to the present applicants.
7) Learned counsel for the applicants submitted
that the oil was manufactured on 22-6-2004 and the shelf
life was six months but the complaint was filed after 16
months and so the right given under section 13(2) of the
Act was lost. This contention is also not acceptable.
Report of the Public Analyst shows that the sample sent
was fit for testing. At this stage, it needs to be presumed
that the procedure as laid down in section 13 of the Act
was followed. It is not the case of the applicants that the
applicants wanted to avail the right and they had followed
the procedure as laid down in section 13(2) for sending
the second sample. Further, in the present matter the
substances mentioned in the report were found in the
edible oil. At this stage it cannot be said that such
substance is a bye-product when such oil is extracted
from seeds. Mixture of such substance is apparently not
permissible. In view of these circumstances the accused
ought to have exercised the right given under section
13(2) of the Act as the Local Health Laboratory had given
report that the sample was fit for testing and the sample
was found to be adulterated.
8) Learned counsel for the applicants placed
reliance on some reported and un-reported cases. In the
case reported as 1985 Cr.L.J. 1255 (Bombay High Court)
(Y.M. Koli v. D.A. Kokani) the Court held that the accused
was entitled to acquittal if on account of delay in filing
complaint the remaining samples had become unfit for
analysis. The substance involved was milk. In the case
reported as 2010(2) FAC 239 (Nagpur Bench) (Shivkumar
vs. State of Maharashtra) the matters involving
substances like mixed fruit jam, Rex Pineapple jam, Anik
ghee and Nutrela Vanaspati were considered. Samples
were apparently collected in April 1996 and prosecution
was instituted on 7-7-1999. It was held that there was no
compliance of section 13(2) of the Act as the report of the
Public Analyst was not sent to the person from whom
sample was taken. In view of the facts of those cases
criminal applications were allowed and the prosecution
and the cases were quashed. It needs to be observed that
in view of provisions of section 13(2) and 13(2-A) right
needs to be exercised by the accused and there is no
provision in the Act showing that the Court needs to act
with the presumption that after shelf life period, the food
article gets destroyed, it becomes unfit for testing. Food
substance may be different in each case. What can be true
in case of milk collected from container or curd collected
from container may not be true in respect edible oil
collected from closed tin after opening it. Further, as
already observed, in view of the definition of adulterant, in
some cases things which are found as adulterant cannot
come in existence due to process of decomposition.
Unless there is report of the laboratory that the sample is
not fit, the Court cannot raise such presumption. Each
case needs to be dealt with separately on the facts and
circumstances of that case. So, with due respect this
Court observes that the observations made in the cases
cited supra are of no use in the present matter. It was
submitted that the proceeding filed to challenge the
decision of the High Court by the State was dismissed by
the Apex Court. Copy of such order is produced. As the
material involved in the present case is different, this
Court observes that the observations made by other
Hon'ble Single Judge are of no use in the present matter.
It can be said that in the present matter the applicants
failed to go for the test through Central Laboratory.
Similar observations are made by other Hon'ble Single
Judge of this Court in Criminal Application No.559 of
2011 decided at Nagpur Bench (Himanshu Hemant
Acharya v. State of Maharashtra) and Criminal
Application No.836 of 2011 decided at the Principal Seat
(Sanjeev Bhatt v. State of Maharashtra). In the first
matter even the substance was not mentioned. In the
second matter the substance involved was black pepper
(whole) and it was collected from mall. Accused were
managers, directors of the said mall. The nature of
adulteration is not mentioned in the decision and only it is
mentioned that the sample did not conform to the
standards laid down under the Act and the Rules.
Prosecution was launched after the expiry of shelf life
period and so order was made for quashing of the
proceeding and relief was granted. It is already observed
that each case needs to be decided on the facts of that
case. So this Court holds that the observations are of no
use in the present matter. In other case like Criminal
Application No.1197 of 2011 decided at Principal Seat
(Himanshu Rambabu Prasad vs. State of Maharashtra)
the substance involved was jaggery and the substance
Sulpher Dioxide which was expected to be there in
jaggery was found but the percentage had exceeded as
per Local (Health) Laboratory report. Due to delay caused
in lodging complaint, which was one and half years, right
to get the sample analyzed through Central Food
Laboratory was lost and so benefit was given to the
accused.
9) In view of the discussion made above, this
Court holds that in the present matter, the proceeding
cannot be quashed. In the result, the application stands
dismissed. Rule stands discharged.
Sd/-
(T.V. NALAWADE, J. )
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