IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 Crl.MC.No. 199 of 2011() ----------------------------- CC.1180/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... PETITIONER(S): 5TH ACCUSED ------------------------------------ BUNGE INDIA PRIVATE LIMITED,B/401 & 501, BUSINESS SQUARE,ANDHERI-KURLA ROAD,CHAKALA,MUMBAI- 400 093,REP.BY ITS MANAGER(SALES),A.V.JAYAN, S/O.C.K.NAIR,AGED 48 YEARS. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE ADV. SRI.A.S.RAJENDRAN NAIR RESPONDENT(S): COMPLAINANT AND STATE ---------------------------------------------------- 1. THE FOOD INSPECTOR (MOBILE VIGILANCE SQUAD),TV CENTRE CAMPUS,THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MUHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.199 of 2011 ==================================== Dated this the 23rd day of February, 2011 O R D E R Question raised for a decision in this proceeding is whether a prosecution launched under the Prevention of Food Adulteration Act (for short, “the Act”) and Prevention of Food Adulteration Rules (for short, “the Rules”) could be said to be not maintainable for the mere reason that the prosecution is launched beyond the date stipulated on the label of the food article for its best use? 2. Short facts necessary for a decision of the question are: Petitioner is a Company registered under the Companies Act and is a subsidiary of M/s. Bung Ltd engaged in manufacture and marketing of bakery and industrial margarine. On 31.07.2009 the first respondent (Food Inspector) inspected Chandrika Bakery, Atingal and collected samples of master line lily lite (green brand) and industrial margarine from a sealed packet having label declaration. After complying with the formalities one of the sample parts was forwarded to the Public Analyst for analysis. The Public Analyst by Annexure-I, report dated 09.09.2009 opined that the sample did not conform to the prescribed standards and CRL. M.C. No.199 of 2011 -: 2 :- hence is adulterated. That report was forwarded to the first respondent on 14.09.2009 with a direction to launch prosecution. The first respondent conducted some enquiry regarding the manufacturer, etc., of the food article. The first respondent launched prosecution on 17.12.2009 against the vendor and others including petitioner. On launching prosecution a copy of report of the Public Analyst was forwarded to the petitioner as required under Sec.13 of the Act. Petitioner (in the words of learned Public Prosecutor, about a year after launching prosecution) has filed this petition on 20.01.2011) requesting to quash proceeding against it on the ground that prosecution was launched after the date stipulated for best use of the food article, there was inordinate delay in the first respondent launching the prosecution and that has virtually deprived petitioner of its right under Sec.13(2) of the Act to have the second sample analysed by the Central Food Laboratory (for short, “the CFL”). In the circumstances it is requested that proceeding against petitioner be quashed. Learned Senior Advocate appearing for petitioner contended that the right provided under Sec.13(2) of the Act is a valuable right which could not be defeated by the delaying tactics of the first CRL. M.C. No.199 of 2011 -: 3 :- respondent. It is pointed out that though the expression ‘expiry date’ is not mentioned on the label of the food article, the expression ‘best for use’ and the date mentioned on the label are synonymous with the expression ‘date of expiry’ and in the circumstance as the prosecution was launched after the date stipulated for best use the second sample could not be analysed by the CFL. It is contended that there is no mention in the complaint that the second sample was stored below 300 C which alone could preserve quality of the food article and make it fit for analysis by the CFL. Learned Senior Advocate has referred me to Section 24 of the Insecticides Act (Act 1968) (for short, “the Act of 1968”) and the decisions of the Supreme Court in Munpl. Corpn of Delhi v. Ghisa Ram (AIR 1967 SC 970), State of Haryana v. Unique Farmaid (P) Ltd ([1998] 8 SCC 190), Gupta Chemicals (P) Ltd. v. State of Rajasthan ([2010] 7 SCC 735) and of the Bombay High Court in Shri Rohit Mull and Candbury India Limited v. The State of Goa ([2006] 108 Bom. L.R) 350). Learned Senior Advocate in the circumstances contended that proceeding against petitioner may be quashed. CRL. M.C. No.199 of 2011 -: 4 :- 3. Learned Public Prosecutor contended that decisions of the Supreme Court relied on by the learned Senior Advocate have no application to the facts of the case since those decisions concerned Sec.24 of Act of 1968 which is not parimateria with Sec.13 of the Act. According to the learned Public Prosecutor unlike Sec.24 of the Act of 1968, the necessity to forward a copy of report of the Public Analyst to the accused arises only after prosecution is launched in view of Sec.13(2) of the Act. It is pointed out that it is referring to the delay on the part of the Inspector in not forwarding a copy of the report under Sec.24 of the Act of 1968 that the Supreme Court held that proceeding initiated after the expiry date of the insecticides concerned, that the delay was held to be fatal to the prosecution as it affected valuable right of the accused and hence proceedings were quashed. It is contended by the leaned Public Prosecutor that in the present case delay in launching prosecution could not be attributed to any act or omission of the first respondent since in the meantime he was enquiring about the manufacturer and others involved in the matter. On getting information prosecution was launched against petitioner as well. According to the learned Public Prosecutor the decision of the Bombay High CRL. M.C. No.199 of 2011 -: 5 :- Court cannot be accepted since it has not properly considered the proviso to Explanation VIII(i) of Rule 32(1) of the Rules. 4. The first respondent took the sample in the present case on 31.07.2009 and Annexure-I, report of the Public Analyst on the sample is dated 09.09.2009. Petitioner would contend that Annexure-I, report was forwarded to the first respondent on 14.09.2009 with direction to launch prosecution. Sanction for prosecution was given on 14.09.2009 and the complaint was filed on 17.12.2009. Annexure-IV is the letter dated 25.09.2009 from the first respondent to the Managing Director of petitioner informing the latter that the packet of margarine bore the label as if the food article was manufactured by the petitioner and calling upon the latter to furnish full details of the said company along with its PFA licence and nomination under Sec.17(2) of the Act for further action. According to the first respondent, information from the petitioner pursuant to that request reached him only on 10.12.2009 (which of course is disputed by the petitioner who says that information was given on 06.10.2009 itself) and thereafter complaint was filed on 17.12.2009. 5. Learned Senior Advocate for petitioner contended that it was not necessary for the first respondent to have waited for CRL. M.C. No.199 of 2011 -: 6 :- information from the petitioner to launch prosecution going by Sec.13(2) and 14A of the Act. Section 13(2) of the Act states that on receipt of report of result of analysis the local health authority shall after the institution of the prosecution against the person from whom the sample of the food article was taken and the person if any whose name, address and other particulars have been disclosed under Sec.14A of the Act forward in such manner as may be prescribed a copy of the report of result of analysis to such person or persons as the case may be. That requirement of course arises after the institution of prosecution. But it is not as if the Food Inspector is not required to conduct any enquiry as to the dealer, manufacturer, etc., of the food article if information regarding that is not available with him. In this case in Annexure-V, the label, name and address of petitioner is given as the manufacturer. It is with respect to that, the Food Inspector by Annexure-IV made enquiries with the petitioner. I leave that matter there, in the light of the order I propose to pass since it is for the trial court to consider whether there was delay or laches on the part of the first respondent in filing the complaint. 6. Section 13(2) of the Act states that on receipt of report of result of analysis the authority concerned shall, after CRL. M.C. No.199 of 2011 -: 7 :- institution of the prosecution forward a copy of that report to the person from whom the sample of food article was taken and the person, if any whose name, address and other particulars have been disclosed under Sec.14A of the Act, informing such person/persons that if it is so desired, either or both of them may make an application to the court within ten days of receipt of a copy of the report to get the sample of food kept by the Local (Health) Authority analysed by the CFL. Though a time limit of ten days is fixed by the said provision for such person/persons to make such an application, this Court has consistently held that the mere delay in filing an application by the accused is not fatal and that if sufficient cause is shown an application under Sec.13 (2) of the Act could be entertained even beyond the said period of ten days (See Food Inspector v. Karingarappully Co-op. M.S. Society Limited - 1986 KLT 174). 7. Under Sec.24 of the Act of 1968, the Insecticide Analyst to whom a sample of insecticide has been submitted for test or analysis under sub-sec.(6) of Sec.22 shall within a period of thirty days deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form. Sub-sec.(2) of Sec.24 says that the Insecticide Inspector on receipt of the report CRL. M.C. No.199 of 2011 -: 8 :- shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample. In other words, as distinguished from Sec.13(2) of the Act the Inspector of insecticides under Sec.24(2) of Act of 1968 is not required to wait till launching of prosecution to give a copy of the report to the person concerned. That cardinal distinction has to be borne in mind while considering the arguments advanced by learned Senior Advocate. 8. Now I shall refer to the decision cited at the Bar by the learned Senior Advocate. In Muncpl. Corpn of Delhi v. Ghisa Ram true, it related to sub-secs. (2) and (5) of Sec.13 of the Act. There it was held that when a valuable right has been conferred on the accused under Sec.13(2) of the Act and that if that right is deprived it is fatal to the prosecution. In that case the second sample was sent to the CFL which reported that it being highly decomposed is not fit for analysis. It was held that in a case where there is denial of right on account of deliberate conduct of prosecution, e.g., delay in prosecution as a result of which the sample is highly decomposed and could not be analysed the vendor in his trial is so seriously prejudiced that it CRL. M.C. No.199 of 2011 -: 9 :- would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. Two things emerge from the said decision: firstly, it was not a case where prosecution was sought to be quashed under Sec.482 of the Code and secondly, it was a case where on account of deliberate conduct of the prosecution, i.e., delay in prosecution the sample became highly decomposed and hence was not fit for analysis. In that case there was a total negation of right of accused under Sec.13(2) of the Act to get the second sample analysed by the CFL. Had the CFL analysed the second sample and given a report contrary to the report of the Public Analyst, report of the CFL would have superseded the report of the Public Analyst and would have been conclusive evidence of the contents therein. It was in the situation that the sample was totally deteriorated and unfit for examination that the Supreme Court took the view that right of accused under Sec.13(2) has been deprived and hence even if the report of the Public Analyst stood a conviction based on that is not possible. 9. State of Haryana v. Unique Famaid (P) Ltd (supra) concerned Sec.24 and other relevant provisions of the Act CRL. M.C. No.199 of 2011 -: 10 :- of 1968. I referred to the cardinal distinction that should be borne in mind with respect of Sec.24(2) of the Act of 1968 and Sec.13(2) of the Act. In the said decision in paragraph 11 referring to Sec.30 of the Act of 1968 which dealt with the defences which may or may not be available in a prosecution under the said Act it was held that the accused has a right to seek dismissal of the complaint when there is a contravention of mandatory provisions of the said Act and he is left with no other remedy. It was held that in order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory it was incumbent on the prosecution to file the complaint expeditiously so that right of the accused is not lost. In the present case by the time the accused were asked to appear before court expiry date of the insecticide was over and sending of the sample to the Central Insecticides Laboratory at that stage was found to be of no consequence (on the facts of the case as the life of the insecticide was over). The Supreme Court referred to certain other decisions on the point and held that the said issue is no longer res integra. Learned Senior Advocate has drawn my attention to paragraph 10 of the decision where reference is made to the contention of the State that the mere fact that CRL. M.C. No.199 of 2011 -: 11 :- prosecution was launched after the date of expiry of the insecticide is not sufficient to quash proceeding against the accused. The Supreme Court held that though the Act of 1968 did not refer to the expiry date of the insecticide, the said argument of the State could not be accepted since in the form prescribed for report by the Insecticide Analyst the date of manufacture of the insecticide and its expiry date are mentioned and the State had no answer to that. I have not been shown any provision in the Act or Rules or any form prescribed by the Act or Rules which required the date of expiry of the food article to be mentioned so that a view as in State of Haryana v. Unique Farmaid (P) Ltd (supra) could be taken. Rule 32 of the Rules says that every package of food shall carry a label. The sub rules say what the label should contain. Under clause (i), the following are to be mentioned on the label: “(i) the month and year in Capital letters upto which the product is best for consumption, in the following manner namely:- “BEST BEFORE…..MONTHS AND YEAR” CRL. M.C. No.199 of 2011 -: 12 :- OR “BEST BEFORE……MONTHS FROM PACKING” OR “BEST BEFORE….MONTHS FROM MANUFACTURE” OR BEST BEFORE WITHIN.............MONTHS FROM THE DATE OF PACKING/MANUFACTURE” Explanation VIII(i) of Rule 32 referred above says: “Best before” means the date which signifies the end of the period under any stated storage conditions during which the product will remain fully marketable and will retain any specific qualities for which tacit or express claims have been made. However, provided that beyond the date the food may still be perfectly satisfactory.” (emphasis supplied) 10. The food article in question also contained a label (a copy of which is Annexure-V). There it is stated: CRL. M.C. No.199 of 2011 -: 13 :- “BEST BEFORE SIX MONTHS FROM PACKING WHEN STORED BELOW 300 C” It is contended by learned Senior Advocate that the packing of the food article was on 07.06.2009 and the period of six months expired before prosecution was launched. But as aforesaid the expression “best before use” referred above cannot be linked with the date of expiry mentioned in the form prescribed for the Analyst to give the report under Sec.24 of Act of 1968 particularly as Explanation VIII(i) of Rule 32(1) of the Rules provided that “however provided that beyond the date the food may still be perfectly satisfactory”. It is not as if beyond the period of best for use the food article became deteriorated or unfit for analysis. 11. Yet another decision relied by the Senior Advocate is Gupta Chemicals (P) Ltd v. State of Rajasthan which also referred the provisions of Act of 1968. 12. The last decision cited is that of the Bombay High Court. There, of course prosecution launched beyond the “best before date” was found to be affecting the right of accused under Sec.13(2) of the Act. CRL. M.C. No.199 of 2011 -: 14 :- 13. With great respect, I express my disagreement with the view taken by the Bombay High Court in the said decision. For, that decision has not given proper consideration to the proviso to Explanation VIII(i) of the Rules quoted supra. 14. Otherwise also it is difficult to accept the argument of learned Senior Advocate. Assuming that period of best before use was to expire on 07.12.2009 and the Food Inspector seized the food article on 06.12.2009, certainly it takes at least a few days for the Food Inspector to get the report from the Public Analyst and it is idle to contend that period of best use having expired on 07.12.2009 prosecution even if launched on 08.12.2009 is invalid, unless the statue so prescribed which I said, the Act and Rules do not prescribe. 15. Then the question is whether on account of delay if any in launching prosecution and a copy of the report reaching petitioner its right under Sec.13(2) has been affected for the reason that the sample has become unfit for analysis by the CFL. I referred to the decision of this Court which said that even beyond the period of ten days prescribed under Sec.13(2) of the Act it is within the power of the court to forward the second sample to the CFL if there was no laches on the part of the CRL. M.C. No.199 of 2011 -: 15 :- accused. Whether there was any delay on the part of the first respondent in launching the prosecution and that has affected right of petitioner in getting the second sample analysed by the CFL are questions of fact which the court has to consider. It is for the trial court to consider whether the second sample became unfit for analysis on the date petitioner could have applied for sending the same to the CFL. Petitioner has a contention that it has not been given a copy of the report of the Public Analyst, nor any summons served on it from the court. Learned Public Prosecutor contends that a copy of the report has already been sent to the petitioner as seen from Annexure-VIII, letter dated 21.12.2009. I do not intend to enter into that controversy in this proceeding. That is a matter which the trial court has to decide if raised before it. 16. Another argument advanced by learned Senior Advocate is that there is no material on record to show and no whisper is made in the complaint also that the sample of food article was stored below 300 C. No doubt there is no specific averment about that in the complaint. The question whether the sample was stored below 300 C being a disputed question of fact CRL. M.C. No.199 of 2011 -: 16 :- is not required to be decided in a proceeding under Sec.482 of the Code. I leave that matter to be decided by the trial court if it is relevant for decision. 17. In the light of the discussion I have made above I hold that the mere fact that the prosecution was launched after the date prescribed for best use as per the label on the food article is not by itself a ground to quash proceeding against the accused. I make it clear that it is open to the petitioner to raise all its contentions on facts before the trial court at the appropriate stage. Criminal Miscellaneous Case fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv