H CQURT G? GHHATT§$G£RH AT E§LAS§U§ HIG Criminai Wm: @etiiion Ne.3§7 0f ZQQSE APPUCANTS: 1‘, Present: Mr. Eiabodh Abhyankar, counsei for the appiicants. Mr. §§ankaj Shr vastava. Panei Lawyer for the State. Siagie Eench: Honibie Mr. TP. $harma, J. QEL QRBEE (Passed on 21S: August, 2008) ’1. This pezition is fiied for quashing of proceeding in Criminal Case No.1 1. 12/2005 penciing before the Chief Judiciai Magisirate‘ Biiaspur under the provisions of the Prevention of i—‘ood .Adeiteration Act, 1954 (for short ‘tne Acti) on the ground that non-compiiance of the mandatory provisions of Section i3 (2} of the Act causes serious prejudice to the appiicants. i have heard teamed counsei for the parties. Copy of the order dated 27-2-2068 and other copies of the documents have been perused. it is argued on behalf of the appiicants that sampie of Chiiii powder was taken for analysis by the Food inspector on 30-4—f9g4 and the ptoseoution has been iaunched on 1t-9—19Q5 after two years & five months. 4K4 '7 Q) C]! ate of manufacture of the aiieged Chiiiy powder is March. 1994 and its date of ,. 4,77, Mumbai‘ 2. Smi. Rashmi Ben, Wfo Shri Raghunathji Parkar, aged about 45 years, PJe mdira Peiice {E}, Mumbai. Siaiion. Santacruz misceiianeous petition under Section 482 of the Code of Criminai ' Procedure, 19?:3} expiry is ?ebruary. 19%. The prosecution was iaunched in the year 19%. Therefore, the applicants have been denied and they have iost the opportunity of examining‘the sampie by the Centrai Food Laboyatory ih terms of Section 13 (2) of the Act thereby their vaiuabie right has been ceased. . Reiiance has been pieced by iearned counse! for the applicants in the matter of $t-t- of Haryana v. Unique Fermaid (P) ‘Ltd. and others1 in which in the case of identicai provisions contained under Section ?4 (4?) of the insecticides Act, 1968. the Apex Court has heid that the accused had iost their right of getting the sampies reanaiyzed from the Centrai insecticides Laboratory under sub-section (4) of Section 24 of the insecticides Act, 1968 and in these circumstances making them stand trial wouid be an abuse of the process of the Court. Learned counsei for the appiicants also submits that after the expiry date the property loses its quaiity. . On the other hand. the petition is opposed on behalf of the Statefnon~appiicant and it is submitted on behalf of the State/non-appiicant that in the instant case‘ opportunity has been provided to the applicants, by the prosecution, to examine the sample by the Director. Central hood Laboratory‘ in terms of Section 13 (2') of the Act, the appiicants had appiied for the same and one sample was sent to the Director‘ Centrai Food Laboratory which was found fit for anaiysis, then third sample was sent, same was anaiyzed vide report dated iii-94997 by which it was found not‘confirmed to the standard and aduiterated. After lapse of ten years of the anaiysis report. this petition has been fiied for quashing of the proceedings pending before the Chief Judiciai Magistrate. Biiaspur in Criminal Case No.1112i2005 which is neither just nor proper. Triai is at the stage of conclusion and this is not a case for invoking the extra ordinaryjurisdiction. ?%1:‘$ is a peiiiion med under $ect§on 482 of the Cr.P.C. interference in exercise of ineerent jurisdiction under Seciion 482 of the Cr.P.C. can be made in rarest of rare cases with a View to give effect to the order under the Code to prevent abuse of process ef ihe Court and to otherwise secure the ends of justice. in the instant case, the samele was taken by the Food inspector in the year 19% and after two years five months. the prosecution was iaunched on 11—9- 19Q8. Notice as required under Section 1'3 ('2) oi the Act has been served upon the applicants and the appiioants had avaiied their vaiuabie right, the sampie wee sent to the Director! Central Food Laboratory for analysis and same was found aduiterated vide report of the Director, Central tfood Laboratory dated 109-399? After receiving the report of the Central Food Lahoratorys the trial proceeded for trlat of the case. After perusai of the material before charge the case was posted for hearino on charge and vide order dated 27 2-2008 teamed Coief Judicral Magistrate has passed the order in detail and retected the contents of the applicants in the case of State of l-laryana (supra), the Apex Court has held that the accused appeared before the Court after the expiry date of the insecticide and lost their right oi getting the sample reanalyzed from the Central Food Laboratory under Section 24 (4') of the insecticides Act “i958. On the basis of the aforesaid circumstances, it has been heid that making the accused stand triat would be an abuse of the process of the Gourt. ln para 11‘ the Apex Court further held that rt is incumbent on the prosecution to file the complaint experirtrousty so that tne riqht of the accused is not lost in the p." sent case, by .ne time the respondents were asked to apoear before the Court the expiry date of the insectrmde was already over and sending of the sample to the Central lnsectrcrdes Laboratory at that iate stage would be of no consequence This rssue ls no longer res rnregra. In State 9f Punjab v. Natieaai Qrganic Qhemica! ladustrie3 Uri? this Court in somewhat simiiar circumsiances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sampie tested, by the Centrai insecticides Laboratory and adduce evidence of the repoit so given in his defence. This Court stressed the need to iodge the complaint with utmostxdespatch so that the accused may opt to avail the statutory defence. The Court heid that the accused had been deprived of a vaiuable right statutoriiy availabie to him. Qn this View of the matter, the Court did not aiiow the criminat compiaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act. 1940 and the ¢revention of Food Aduiteration Act, 1954' invoiving the same question. In this connection reference be made to decisions of this Court in State of Heryana v. Brij La! Mittai3 under the Drugs and Cosmetics Act, 1940, Municipai Corpn. of Deihi v. Ghisa Ram"; Chetumai v. State of MR5 and Calcutta Municipai Corpn. V. Pewan Kumar tiara? alt under the Prevention of 9. in the case of State of Haryana v. Brij Lai fviittal and others (supra), white dealing with identical provisions under Sections 25 (3) & (4?) of the Crugs and Cosmetics Act. 1940. it is heid by the Apex Court that . . Food Adulteration Act, 1954.” ”Right to get the drugs tested by Centre? Drugs Laboratory does not arise uniess requirement of’sub-section (3) is complied with — Cespite the service of copies of Analyst‘s report the manufacturer not notifying the inspector within the prescribed period that he. intended to adduce evidence in controversion of the report — Heid, right of the manufacturer to get the sampie tested by the Centrai Drugs Laboratory stood extinguished and report of Anaiyst became conciusive evidence — High Court notjustified in quashing the compiaint M 2 3 r1998) (19%) 5 it soc soc 343 613 ; 1998 : tee? soc sec (Orr) (Cri) 1315 312 : JT (1996) to so 480 4 AIR 1967 so 97o ; (1957) 2 see 116 i‘neau 3 sC‘C 72 : 1981 soc (err) 632 ° (1999) 2 soc 400 : 19e9 soc (on) 21 8 on ground that compiaint was fiied after the expiry of shelf- iife of the drugs? ‘ 10. in the case of Municipai Corporation of Eefhi (supra) the Apex Court has heid that in case of inordinate deiay in prosecution — Sample becoming decomposed and hence impossible of anaivsis — Accused deprived of his vaiuabie right. 11. in the case of State of Punjab (supra) it is heid by the Apex Court that in. case of offence under Sections 21. 22 & 24 of the insecticides Act. 1968‘ compiaint shouid be iodged with utmost dispatch so that the accused may opt to avaii of the statuorv defence. 12, in the case of Caicutta Municipai Corporation (supra) it is held by the Apex Court that in terms of Sections i3 (3) & (5) of the Frevention of Food Adulteration Act‘ 1954 — Certificate issued by Director. Centrai ?ood Laboratory “shaii supersede the report given by the Public Anaiyst" and “shaii be finai and conciusive evidence of the facts stated therein“. 13. in the instant case‘ the appiicants after appearing before the Court had appiied for analysis by the Eirector. Centrai Food Laboratory, same was sent for and finai report dated 10-9—1997 was received. This is not a case where the appiicants have not exercised their right under Section 13 (2) of the Act to anaiyze the sampie from the Director,»§entral Food Laboratory. they had exercised their right and the sample was found fit for analysis. The anaivsis report shows that the aiieged food article was found to be adulterated. in the year 1997 after receiving the report of the Centrai Food Laboratory, the Court proceeded for trial and after lapse of’more than ten years, the instant petition is filed before this Court for quashing of criminal proceedings against the applicants. The applicants have exercised their valuable right under Section 13 (2) of the Act and they are not deprived of the said right. They had succeeded in analyzing the sample by the Director, Central Food Labotatory. Soma The proceeding pending before the triai Court is iust and iegal and it is not abuse of the process of the Court. 14in the! result, the petition is iiabie to be dismissed and it is accordingiy, dismissed in iimine. Sdl- T. P. Sharma Judge