CRIMINAL MISCELLANEOUS No.10956 OF 2001 ------ In the matter of applications under sections 482 of the Indian Penal Code. ------ 1.SOUMINDRA BHATTACHARYA son of P.S.Bhattacharya, The Area Manager, Hindustan Coca-Cola Beverages Private Limited, E-1, Industrial Area Patliputra Colony, Patna- 13. 2.A.Subraminium son of K.Armugam,The Plant H.R.Manager, Hindustan Coca Cola Beverages Private Limited, E-1, Industrial Area, Patliputra Colony, Patna-13. Versus 1.THE STATE OF BIHAR 2.Surendra Kumar, son of not known, The Food Inspector, Patna C/o The Civil Surgeon’s Office, Patna Cr.Misc. No.6244 oF 2002 1.KALI PADO KARAMAKAR S/o late Jatindra Nath Karamakar, resident of Bhatta Bazar, P.S.- K.Hat, P.O. & Dist.-Purnia 2.Gaur Chandra Mukherjee S/o late surendra Nath Mukherjee, resident of Bhatta Bazar, P.S.- K.Hat, P.O.& Dist.-Purnia..... Petitioners Versus 1.STATE OF BIHAR 2.Surendra Kumar, son of not known, The Food Inspector, Patna C/o The Civil Surgeon’s Office, Patna .....Opp.Parties ------ Cr.Misc. No.12412 oF 2001 SANJEEV GUPTA son of M.Gupta, Director, Hindustan Cola-Cola Beverages Private, Limited Enkay Towers, Vanijya Nikunj, Udyog Vihar,Phase-V, Gurgaon, Haryana .....Petitioner Versus 1.STATE OF BIHAR 2.Surendra Kumar, son of not known, The Food Inspector, Patna C/o The Civil Surgeon’s Office, Patna .....Opp.Parties. ------ For the petitioners:Mr.N.K.Agrawal, Sr.Advocate Mr.Mr.Chitranjan Sinha, Sr.Advocate Mr.Kaushal Kumar Jha, Advocate. Mr.Kumar Manish,Advocate For Opp.Party No.2:Mr.Dilip Kumar Sinha,Spl.P.P. For the State: Mrs. Indu Bala Pandey, Addl.P.P. ------ P R E S E N T THE HON'BLE MR.JUSTICE RAKESH KUMAR ------ Rakesh Kumar,J. In all the aforesaid three petitions, 2 which have been filed under Section 482 of the Code of Criminal Procedure, order dated 21.10.2000 passed by Additional Chief Judicial Magistrate, Purnea is under challenge. Accordingly, all the aforesaid three petitions were heard together and are being disposed of by this common judgment. 2. In Cr. Misc. No.10956 of 2001, petitioner no.1 was Area General Manager and petitioner no.2 was the Plant H.R. Manager of M/S Bharat Coca Cola Bottling North East Private Limited. In Cr. Misc. No.12412 of 2001, the sole petitioner was, at the relevant time, Vice President of M/S Bharat Coca Cola Bottling North East Private Limited. In Cr. Misc. No.6244 of 2002, the petitioner no.1 was Distributor and petitioner no.2 was Seller of Limca, which was a soft drink product of M/S Bharat Coca Cola Bottling North East Private Limited. 3. Short fact of the case is that on 27.7.1999, Food Inspector, Purnea, Camp Patna collected sample of Limca from its Distributor, petitioner no.1 in Cr. Misc. No.6244 of 2002. After collecting the sample of Limca, same was sent for its analysis report and thereafter, on 9.9.1998, analysis 3 report was prepared, which indicated that sample in question was adulterated under the Prevention of Food Adulteration Act. Subsequently, on 25.9.2000, prosecution was filed for violation of the Prevention of Food Adulteration Act and thereafter, on 21.10.2000, the learned Magistrate took cognizance of the offence under Section 16(1)(A) of the Prevention of Food Adulteration Act and summoned the petitioners. 4. Aggrieved with the order of cognizance, the aforesaid three petitions were filed before this Court. In the present case, a counter affidavit has been filed by opposite party no.2/complainant. At the very outset, while challenging the order of cognizance as well as entire prosecution, Mr. N.K. Agrawal, learned Senior Counsel appearing on behalf of the petitioners in Cr. Misc. No.10956 of 2001 and Cr. Misc. No.12412 of 2001, has raised a pure question of law that while filing prosecution, the complainant had violated the provisions contained in Section 13(2) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). It was submitted by 4 Mr. Agrawal that even on the date of filing of the complaint petition, no analysis report was communicated to the petitioners, which was mandatory as per Section 13(2) of the Act. It has further been submitted that self life of Limca was six months from the date of its manufacturing. It was submitted that even if it is assumed that on the date of analysis report of Limca, the life of the produce had not expired even then on the date of filing of prosecution report, self life of Limca had already expired. Further it has been categorically stated that analysis report was never supplied to the petitioners and as such the petitioners were debarred to raise any objection for test of the sample by Central Food Laboratory. Learned counsel has also referred to Sub Section (3) of Section 13 of the Act. In view of violation of provision as contained in Section 13(2) of the Act, it was submitted that order of cognizance as well as entire prosecution is liable to be set aside. In support of his stand, learned counsel has relied upon a single Bench judgment of Ranchi Bench of Panta High Court reported in 1995(1) of Food Adulteration Act Cases 159 (Mali Ram Agarwal Vs. State of Bihar & ors.). It was 5 submitted that in that case prosecution was set aside only due to the reason that analysis report was never supplied to the accused persons of the case. Learned counsel has further referred to a decision of the Apex Court reported in 2008(7) SCC 196 (Medicamen Biotech Limited Vs. Rubina Bose, Drug Inspector). Of course, in the said case, it was alleged that Section 25 of the Drugs and Cosmetics Act was violated,it was submitted that the provision contained in Section 25 of Drugs and Cosmetics Act is similar to the provision contained in Section 13 of Food Adulteration Act. In view of the aforesaid decisions, it was submitted that order of cognizance as well as prosecution may be set aside. While pressing the present petitions, it was argued that in the petition itself, specific averment has been made in paragraph-9 of the petition that Section 13(2) of the Act was infringed, which has not been pointedly controverted by opposite party even in counter affidavit. 5. In second case i.e. Cr.Misc. No.6244 of 2002, Mr. Chitranjan Sinha, learned Senior Counsel has appeared on behalf of the petitioners. He has adopted the same 6 argument, which was advanced by Mr. N.K. Agrawal, learned Senior Counsel. 6. Mr. Dilip Kumar Sinha, learned Special P.P. appearing on behalf of opposite party has vehemently opposed the prayer of the petitioners. It was submitted by Mr. Sinha that since the petitioners were well intimated by letter dated 28.8.2000, it will be deemed that the petitioners were given full opportunity to raise objection if they had got any grievance with analysis report. Accordingly, it has been submitted that the petitions are liable to be rejected. It has further been submitted that the petitioners have come against the order of cognizance, which is not required to be interfered with in ordinary course. It was submitted by learned counsel for opposite party that the learned Magistrate, on being satisfied, found prima facie case and has taken cognizance of the offence. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. In the present case, since it has been alleged that the right conferred by Section 13 of the Act has been infringed, it would be proper to 7 quote Section 13 (1) (2) (3) of the Act, which are as follows : Section 13(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. Section 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 the 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 8 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. Section 13(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). 8. On perusal of Sub Section (2) of Section 13 of the Act, it is evident that after receipt of the analysis report and after institution of the prosecution against the concerned persons, it was mandatory on the part of the local authority to forward the said report to the concerned person 9 including the person whose name transpired in view of Section 14A of the Act. Further Sub Section (3) of Section 13 of the Act makes it clear that if the report/certificate from the Central Food Laboratory is received, the same will supercede the report given by public analysis under Sub Section (1) of Section 13 of the Act. After going through the aforesaid provisions, it is evident that it was mandatory on the part of the local authority/complainant to give a report to the petitioners so that in case of any objection being raised the sample could have been sent to the Central Food Laboratory. In the present case, the stand was taken that self life of Limca was six months. From the record, it is not in dispute that till the date of filing of the report before the Magistrate, no analysis report was communicated to either of the petitioners. The prosecution report was filed in the court of Magistrate on 25.9.2000 and the analysis report is dated 9.9.1999 meaning thereby that on the date of filing of the prosecution report, self life of Limca had already expired and as such had it been supplied to the petitioners at the time of filing of the 10 prosecution, no purpose under Section 13(2) of the Act would have been served. In view of admitted position that analysis report was not supplied, the court is of the opinion that it was a clear cut case of violation of Section 13(2) of the Act. In that view of the matter, it is a fit case for interference with the order of cognizance. 9. Accordingly, the order of cognizance dated 21.10.2000 passed by learned Additional Chief Judicial Magistrate, Purnea is hereby set aside and all the three petitions are allowed. (Rakesh Kumar,J.) PATNA HIGH COURT The 22nd November,2010 Md.S/N.A.F.R.