1 cr­wp­2905­09 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. W.P. NO. 2905 OF 2009 Marico Limited ..Petitioner Vs. State of Maharashtra and Ors. ..Respondents .... Mr. R.V.Talasikar Adv. for petitioner Mr. V.B.Konde-Deshmukh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 21, 2010 P.C.: 1 Heard the learned advocate for the petitioner-original accused no.4 and the learned APP for the State. 2 The petitioner is seeking quashing of Complaint No. 76 of 2008 which is pending before the learned J.M.F.C. Jaisingpur, Dist. Kolhapur. The said complaint is under Sections 7(i) read with section 2(ia)(a)(m) punishable under Sections 16 and 17 of Prevention of Food Adulteration Act, 1954 and Rules thereunder. 3 The prosecution case briefly stated is that on 31.7.2003 at about 3.30 p.m. the complainant along with pancha visited the firm M/s. 2 cr­wp­2905­09 Gautam Associates (accused no.2), situated at Jaisingpur. At that time, accused no.1 was present there and he was looking after the business of stocking for sale and selling the food articles including Refined Corn and Kardi Oil Blended (Suffola). The complainant disclosed his identity. He then took samples of the said oil. He also issued notice in Form VI and under section 14A of the Prevention of Food Adulteration Act to accused nos.1 and 2. Thereafter, the sample was sent to the Public Analyst for analysis on 2.2.2003. The complainant received the copy of the report from Public Analyst wherein it was opined that the sample of Refined Corn and Kardi Oil Blend (Suffola) does not conform to the standards of (Refined) Blended Edible Vegetables Oil as per P.F.A. Rules, 1955 and said food article contains Mineral Oil. After obtaining consent from the Joint Commissioner, complaint came to be filed against the original accused nos. 1 and 2 on 17.1.2005. By order 7.9.2006 the complainant was permitted to implead the present petitioner. The petitioner came to know about this fact only when it was served with summons in May, 2009. 4 The learned counsel for the petitioner states that he has not been served with the report of the Public Analyst as provided under Section 13(2) of the Prevention of Food Adulteration Act. It is an 3 cr­wp­2905­09 admitted fact that till today the complainant has not served the said report on the petitioner. The reply filed by the complainant also does not show that they have served the petitioner the copy of the Public Analyst report. 5 The learned advocate for petitioner contended that delay in service of the report would vitiate the prosecution in this case because the sample was originally taken on 31.7.2003 and by now i.e. almost seven and half years later, the sample would have deteriorated and would not give correct results. He further contended that even today if the report is supplied to the petitioner, the petitioner has been deprived of his valuable right under Section 13(2) of the Act. In support of this contention, the learned advocate for the petitioner placed reliance on the decision of the Supreme Court in 2009(11) SCALE Page 5 Girishbhai Dahyabhai Shah Vs. C.C.Jani and Anr., wherein it is observed that if the report of Public Analyst is furnished late, by which time, the sample had deteriorated the accused is deprived of his right under Section 13(2) as by then the sample was not capable of being analysed. Observing thus, the criminal complaint came to be quashed. 6 It is to be noted that pursuant to the directions passed by the 4 cr­wp­2905­09 Court to implead the petitioner as an accused, the petitioner is made accused three years after taking of sample. Even during this period of three years, no report of the Public Analyst was furnished to the petitioner so that they could send the sample for analysis to the Central Food Laboratory. The non-service of the report of the Public Analyst gives a serious blow to the prosecution on account of non-service. The petitioner has been deprived of the valuable right available under Section 13(2) of the Prevention of Food Adulteration Act. Section 13(2) of the said Act reads as under: “ 13(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 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 the receipt of the copy of 5 cr­wp­2905­09 the report to get the sample of article of food kept by the Local Health Authority analyzed by the Central Food Laboratory ” . There can be no doubt that sub-section (2) of section 13 of the Act, confers a right on the accused to have the sample examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of that sample. It is when the accused exercises this right that a certificate has to be given by the Director of the Central Food Laboratory and that certificate then supersedes the report given by the Public Analyst. If, in any case, the accused does not choose to exercise this right, the case against him can be decided on the basis of the report of the Public Analyst. In the present case, the accused has been denied his right of obtaining the report of the Director of the Central Food Laboratory. When a valuable right is conferred by Section 13(2) of the Act on the accused to have the sample analysed by the Director of the Central Food Laboratory it is to be expected that the prosecution will proceed in such a manner that the right will not be denied to him. The right is a valuable one, because the certificate of the Director Central Food Laboratory supersedes the report of the Public Analyst and is treated as conclusive evidence of its 6 cr­wp­2905­09 contents. Obviously, the right has been given in order that for his satisfaction and proper defence, the accused should be able to have the sample analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence of the prosecution. As the petitioner has been deprived of the right. In my opinion, the accused would be seriously prejudiced in his trial. 7 I may not be understood as laying down that in every case, where the right of the accused to have the sample tested by the Director of the Central Food Laboratory is frustrated, the accused cannot be convicted on the basis of the report of the Public Analyst. I consider that the principle must however, be applied to cases where the conduct of the prosecution has resulted in the denial to the accused of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible. The prosecution, in this case, committed inordinate delay in launching the prosecution against the petitioner. The sample was taken on 31.7.2003 and sometime after 7.9.2006 the petitioner was made an accused. No explanation is forthcoming as to why the petitioner was not made an accused immediately and was made an accused more than three years after the sample was taken. The petitioner was made an 7 cr­wp­2905­09 accused more than two years after report of Public Analyst was received by the prosecution. This is, therefore, clearly a case where the petitioner by the conduct of the prosecution was deprived of the opportunity of exercising his right to have the sample examined by the Director of the Central Food Laboratory. 8 The sample was taken on 31.7.2003, today even though seven years have elapsed since the sample was taken and report of Public Analyst was received it was not yet been served upon the petitioner. Even if the report is served at this stage, after 7 years if the petitioner sends the sample to Central Food Laboratory on account of passage of time, the report of Central Food Laboratory would not show correct results. In view of the above facts and the above disscused decision, the proceedings i.e. Complaint No. 76 of 2008 pending before the learned J.M.F.C. Jaisingpur as against the petitioner is quashed. It is made clear that proceedings are quashed qua the petitioner only. 9 Petition disposed of in above terms. [ SMT. V.K.TAHILRAMANI, J.]