BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 05 -01-2010 CORAM THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH Crl.R.C.No.1938 of 2003 & Crl.M.P.No.12740 of 2003 M/s. Departmental Stores Honesty Society, rep. By Mahendra H. Shavadia, 14,Roman Rolland Street, Pondicherry .. Petitioner / A1 Vs. 1.Senior Food Inspector M.Chandrasegara Sastry Food and Drugs Administration Pondicherry .. Respondent / Complainant 2.M/s. Kirorimal Kashiram No.34, Anderson Street, Chennai. 3.M/s. Nav Bharath Oil Mills Delhi Road, Hissar Haryana State. .. Respondents 2 &3/ Accused 2 & 3 (Notices are dispensed with Respondents 2 and 3) Prayer:- This Revision has been filed under Sections 397 & 401 of Cr.P.C., against the judgment dated 14.10.2003 in Crl. M.P.No.1987 of 2003 in C.C. No.263 of 1999 passed by the Judicial Magistrate No. I, Pondicherry. For Petitioner : Mr.R. Muralidharan For Respondent : Mr.T. Murugesan Senior Public Prosecutor (Pondy) for R1. RR 2 & 3 : N.A. JUDGMENT This Criminal Revision Case has been filed against the order passed by the learned Judicial Magistrate No.I, Pondicherry in Cr. https://hcservices.ecourts.gov.in/hcservices/ M.P.No.1987 of 2003 in C.C.No.263 of 1999 dated 14.10.2003 in dismissing the petition filed by the petitioner/A1 seeking for discharge from the said case. 2. Accused No.1 is the petitioner herein and the complainant is the 1st respondent and A2 and A3 are the respondents 2 and 3 in this revision. 3. The short facts which are necessary for the disposal of the revision are as follows: (a) The 1st respondent seized the entire sealed tin containing mustard oil with the seal of Agmark No.105463 weighing 15 kilograms manufactured by the 3rd respondent M/s. Nav Bharath Oil Mills, Delhi Road, Hissar, Haryana and distributed by the 2nd respondent M/s. Kirorimal Kashiram, No.34, Anderson Street, Chennai in bill No.86722 dated 21.08.1998 containing the name of the distributor and the manufacturer and the affixture of Agmark number provided by the Government of India for purity. The petitioner was only a vendor of the oil manufactured and distributed by the respondents 2 and 3 and it was purchased by the petitioner against a valid bill, which was also seized by the 1st respondent/complainant. (b) The sample taken by the 1st respondent was sent to public analyst Pondicherry which showed positive report for the presence of Hydrocyanic acid and therefore it was declared that the sample of mustard oil taken was an adulterated one. Petitioner had filed a petition before the lower court in Crl.M.P.No.498/2000 u/s.13 (2) of The Prevention of Food and Adulteration Act within the 10 days from the memo served against the petitioner by the local Health Authority dated 03.03.2000 for sending the samples kept by the said authority to the Central Food Laboratory for analysis and the same was allowed by the court. However, the said sample was not produced by the local Health Authority for analysis by the Central Food Laboratory so as to confirm the report of the public analyst. (c) The petitioner had purchased the said mustard oil in a sealed tin with Agmark number indicated therein under a bill from the distributor and therefore, there is no warranty available for the petitioner given by the distributor and manufacturer as per Section 14 and therefore the petitioner cannot be prosecuted without the presence of the distributor and manufacturer. The bill obtained by the petitioner with warranty would protect the petitioner and it is the manufacturer and the distributor namely respondents 2 and 3 (A2 and A3) who had committed crime and the petitioner cannot be prosecuted who is only a vendor of the article sealed in the container. The public analyst report alone cannot be a piece of evidence to end in conviction. The manufacturer and the distributor are only liable to be prosecuted under Sec.14 and not the vendor of the oil seized with the seal. It is curious to note that the 1st https://hcservices.ecourts.gov.in/hcservices/ respondent/complainant had not pressed the case against the manufacturer. Therefore, the prosecution against the petitioner is also not sustainable and it has become necessary to discharge the petitioner from the complaint as it is not maintainable against the petitioner/A1. 4. The petitioner who is a vendor of the oil had not furnished the name and addresses of the persons responsible for the business nor the distributor company or the manufacturing company which is required u/s. 14 A of the said Act. The sample taken by the 1st respondent from the bulk of mustard oil with the petitioner was declared as adulterated and injurious to health due to the presence of Hydrocyanic acid and the second sample portion available with local Health Authority for counter check of the report of the public analyst could have been shown and the petitioner did not take any steps against the local Health Authority till today for production of 2nd portion of the sample as per Section 13 (2A) & 2B of the PFA Act, 1954 and 1955 rules framed therein. Due to the default of the petitioner the complainant cannot secure Accused 2 and 3 who are responsible for the conduct of the business of the company despite the efforts taken by the prosecution and therefore, the complainant endorsed not pressing against the manufacturer/A3 without prejudice to Sec. 20 A of the Act with liberty to implead the manufacturer at any time during the process of trial. Even the petitioner was protected with warranty if the sample turned adulterated and injurious to health. As analysed by the public analyst the available of the warranty clause miserable fails u/s. 7 (1) r/w 16 (1) along with manufacturer. Since the petitioner want to challenge the report of the public analyst which certainly made him to seek a direction to produce the 2nd portion of the sample under safe custody as per the provisions of Section 13 (2A) and 13 (2B) of the Act and 2nd portion of the sample is not with the custody of the complainant and the petitioner is solely responsible for the delay in sending for analysis by Central Food Laboratory. Since the petitioner as a vendor has miserably failed to furnish statutory information as required and the samples have been declared as adulterated and injurious to health and the warranty given to the petitioner vendor is no longer available and therefore, the discharge as pleaded by the petitioner cannot be granted. Therefore, the 1st respondent had sought for dismissal of the petition filed by the petitioner in the public interest and the trial ordered to be proceeded against the petitioner and as well as other accused. 5. After hearing both sides, the lower court had come to the conclusion that the case filed against the petitioner has to be tried for the purpose of deciding the culpability of the petitioner. The contentions raised by the petitioner could be dealt with during the trial by way of letting in evidence and the non production of the sample for being analysed by a independent analyst was introduced only with a view to prevent the plea being raised that the sample https://hcservices.ecourts.gov.in/hcservices/ sent to the analyst was a different commodity from the one that the Food Inspector had taken a sample and therefore the discharge petition was dismissed by the lower court. 6. The petitioner has come forward with this revision that the findings of lower court are against law and the lower court had erred in passing an order and therefore, it has to be interfered and set aside. 7. Now the point for consideration is whether the prosecution as launched by the 1st respondent against the petitioner by way of fling a complaint on the basis of the report from the public analyst has to be permitted to go on trial or the petitioner has to be discharged from being prosecuted. 8. Heard Mr.R.Muralidharan, learned counsel for the petitioner/A1 and Mr.T.Murugesan, learned Senior Counsel for the 1st respondent/complainant. 9. For convenience, the ranks of parties in the main case before the lower court are being referred in this judgment. 10. The learned counsel for the petitioner/A1 would submit in his argument that the complainant had categorically admitted in the complaint itself that the petitioner was in possession of mustard oil in a sealed container in which the name of the manufacturer was found intact and the said commodity namely mustard oil was purchased from the dealer one M/s. Kirorimal Kashiram the 2nd respondent/A2. He would further submit that when a sample was admittedly taken from the sealed container the part played by the petitioner cannot be a crime for possessing adulterated commodity produced by the manufacturer and distributed by the distributor. He would further submit that the bill and the lorry receipts held by the petitioner where the implied warranty has been mentioned even if the adulteration is found to be true. He would further submit in his argument that the report of the public analyst shows the presence of Hydrocyanic acid. However, the petitioner/A1 is entitled to have a counter check as per the memo issued by the local Health Authority who was in possession of other samples for analysis to be sent to the Central Food Laboratory. 11. He would further submit that a petition has been filed in Cr.M.P.498/2000 within the stipulated time and it was ordered by the court. However, the local Health Authority did not produce the said samples and therefore the statutory right given to the petitioner for counter check was lost and time had also passed and therefore it became impossible to have a counter check with the Central Food Laboratory. Therefore, he would submit in his argument that even if the petitioner is found liable as a prime accused, the right given u/s. 13 (2) of the Act was validly prevented by non production of the sample by public analyst for which the petitioner need not take https://hcservices.ecourts.gov.in/hcservices/ effective steps except by filing a report. He would further submit that no samples were sent to the court for sending them to Central Food Laboratory for counter check. He would further submit that in the said circumstances, the judgment of Hon'ble Apex Court reported in 1981 SCC (Cri) 632 in between Chetumal v. State of M.P. it has been categorically held that when the accused was deprived of the opportunity to which he was entitled for no fault of his, it was not possible for the court to rely upon the report of the public analyst and convict the accused. Therefore, he would submit in his argument that the lower court has lost sight of the dictum laid down by the Hon'ble Apex court and had come to a wrong conclusion that a trial has to be conducted which is not correct. He would again submit in his argument that the valuable statutory right accrued to the accused cannot be taken away from the petitioner/A1 for defending his case. He would also submit that when there is no material on record and no evidence against the petitioner/A1, the conduct of trial would be nothing but wasting of time of court and therefore, the order passed by the lower court in dismissing the petition for the discharge of the petitioner may be interfered and set aside and this revision may be allowed. 12. The learned counsel for the 1st respondent/complainant would submit in his argument that the warranty said to have been given under the bill purchased by the vendor/petitioner would be lost on the 'prima facie' positive finding of the public analyst in his report against the petitioner and therefore, the petitioner cannot claim any discharge without going for trial. He would further submit that the bill said to have been obtained by the petitioner (A1) from the distributor (A2) has to be produced and proved in order to prove the warranty given in favour of the petitioner. Necessarily, the trial should go on and the culpability of the petitioner (A1) could be decided after recording evidence. In the absence of any material against the petitioner, then only the complainant should be directed to proceed against the manufacturer and the distributors who are A2 & A3. Therefore, the lower court was correct in reaching to the conclusion that a trial is required for ascertaining the points and nothing would happen to the petitioner if he participates in the trial and get himself acquitted if really his contentions are true. Therefore, he would request the court to uphold the points decided by the lower court and to dismiss the revision. 13. I have given anxious thoughts to the arguments advanced on either side. The contention of the petitioner (A1) that there was no case made against him and therefore, no trial is necessary and he has to be discharged from the culpability were disallowed by the lower court. 14. The case of the petitioner (A1) that he was not responsible for the commission of the crime by adulterating the commodity. Since the sample was taken by the Food Inspector, the complainant from a https://hcservices.ecourts.gov.in/hcservices/ sealed container with the seal of the manufacturer and the Agmark number inscribed over it. The petitioner further claims that there was no part played by him in committing adulteration even if it is found to be adulterated. The samples from the container to an extent of 900 gms of mustard oil were taken and were kept in three clean dry empty containers of each contains 300 gms after they were sealed in the presence of the petitioner and the first sample was sent to public analyst, Pondicherry for analysis and the second sample was kept with the local Health Authority for the purpose of counter check are admitted, by both sides. 15. It is also claimed by the 1st respondent/complainant that the public analyst report would show that the commodity namely mustard oil taken from the petitioner was found to have been adulterated with hydrocyanic acid. The said positive presence of hydrocyanic acid is prohibited as per clause 1-17-06 in Appendix 'B' to Prevention of Food Adulteration Rules, 1955. According to the said rules the test for the presence of hydrocyanic acid shall be negative. However, the petitioner from whom the sample has been taken is entitled for counter check of the second sample held by the public analyst, and it was also informed through the memo dated 03.03.2000 issued by Deputy Director local Health Authority u/s. 13(2) of the Act to apply for counter check before the court. It is also an admitted fact that the petitioner had accordingly applied before the court in Cr.M.P.498/2000 and it was also allowed. According to the submission made by the learned counsel for the petitioner that the second sample kept under the custody of Public Health Authority was not sent to Central Food Laboratory by the local Health Authority and therefore, the valuable right provided by the statute, for counter check was not available for the petitioner to show that the report of the public analyst was in correct. The contention of the 1st respondent was that the petitioner did not pay a sum of Rs.1000/- towards the said charges and he had also not prayed for a direction against the local Health Authority to produce the second sample and therefore, it was not produced before the said court. It was not disputed by the learned counsel for the 1st respondent that the petition filed by the accused No.1 was not allowed by the court. When the possession of second sample is admittedly with the local Health Authority and the Deputy Director's memo to the petitioner to take steps for the counter check of the second sample through Central Food Laboratory and the petitioner had accordingly filed the petition within 10 days i.e on 09.03.2000, it cannot be blamed that the petitioner ought to have prayed for a direction against the local Health Authority for producing the sample before the court. Moreover the non payment of the fees has not been raised in the counter filed by the 1st respondent/complainant nor it had been shown to court that the said fees was not paid by him. 16. The court cannot direct the sending of the sample for analysis to the Central Food Laboratory unless it is produced by the https://hcservices.ecourts.gov.in/hcservices/ local Health Authority before court. Therefore, it cannot be found by the lower court that the petitioner was the cause for the delay in sending the second sample to the Central Food Laboratory for analysis. Therefore, the statutory right as given u/s. 13 (2A) of the Act has been deprived off to the petitioner. If really, the second sample has been produced by the local Health Authority in time, it could have been sent to the Central Food Laboratory for analysis, for counter checking of sample and to find the correctness of the report of the public analyst who held the commodity as an adulterated one. 17. The finding of the lower court in this regard that the custody of the second portion of the sample was left with the local Health Authority in order to verify only to an extent as to whether the sample sent the analyst was of a different commodity from the one which the Food Inspector has taken a sample, cannot be sound. In this circumstance, it is relevant to refer the judgment of Hon'ble Apex reported court in 1981 SCC (Cri) 632 in between Chettumal V. State of M.P. "Under Section 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the court on the basis of which the appellant could be convicted. The court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the public analyst was by having the sample tested by the Director of the Central Food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the court to fall back upon the report of the Public Analyst to convict the appellant." According to the said judgment, when such an opportunity as contemplated u/s. 13 (3) of the Act is not made available to the accused conviction cannot be recorded against him. 18. Learned counsel for the petitioner was resting his argument in respect of landing of prosecution against the petitioner who was only a vendor and he had not in anyway involved in the commission of adulteration. Considering the said argument, we could see that the https://hcservices.ecourts.gov.in/hcservices/ Food Inspector of the complainant had taken samples admittedly from a sealed container which was showing the name of the manufacturer and the Agmark number and the complaint would also go to show that the bill and lorry bill have been produced for the purpose of transporting them. In the aforesaid circumstances, the petitioner would be construed as only a vendor. The admitted case of the complainant would not disclose that the petitioner indulged in breaking the seal and adulterated the said commodity and therefore, he was solely liable for being prosecuted. The incrimination of the distributor and the owner u/s. 20 A of the Act would not in anyway, make the vendor prosecuted mere because the adulterated commodity was purchased by him. As far as this case is concerned, the admitted case of the complainant itself would be that the samples were seized from in a sealed container purchased by the petitioner as vendor through the bill shown by him and the lorry receipts produced by him. When the case of the complainant are such that the petitioner A1 could not be proceeded with the trial for the crime of adulteration of the said commodity. It is also not safe to proceed against the petitioner with a trial even such report of the public analyst supports the case of the 1st respondent/complainant. Therefore, the finding of the lower court is almost in a side tracking leaving the crux of the case and the lower court has not answered to the failure of the local Health Authority to produce the second sample for being analysed by the Central Food Laboratory so as to give the petitioner to counter check the report of the public analyst. The lower court did not also see that there was no prima facie case against the petitioner without the presence of the manufacturer and therefore, the order passed by the lower court is liable to be interfered and set aside as against the petitioner. 19. Therefore, the petitioner is entitled for discharge from the prosecution under a complaint filed by the 1st respondent/complainant. For the foregoing discussion and finding reached by this court, the order passed by the lower court in disallowing the claim of the petitioner/A1 for discharge from the complaint filed against him in C.C. No. 263/1999, is not in accordance with law and therefore the said order is interfered and set aside and consequently the petition filed by the petitioner/A1 before the lower court to discharge him from the complaint is allowed. Accordingly the revision petition is allowed. Connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kpr https://hcservices.ecourts.gov.in/hcservices/ To, 1.The Judicial Magistrate No. I, Pondicherry. 2. -do- Thro The Chief Judicial Magistrate, Pondicherry. 3. Senior Food Inspector Food and Drugs Administration Pondicherry. 1 cc to Mr.R.Muralidharan, Advocate, Sr.No.354 1 cc to Sr.Government Pleader, (Pondicherry) Sr.No.372 Judgment in Crl.R.C.No.1938 of 2003 & Crl.M.P.No.12740 of 2003 VSV {CO} TP/17.3.2010. https://hcservices.ecourts.gov.in/hcservices/