1 Cri.Appln.No.3553/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3553 OF 2010 Sachin s/o Kisanrao Kotalwar ... APPLICANT VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri S.P. Katneshwarkar, Advocate for the applicant Shri N.H. Borade, A.P.P. for respondent No.1. ..... CORAM : U.D. SALVI, J. DATED : 8th November, 2011. PER COURT : 1. Heard. Perused the application and the annexures thereto. 2. The applicant, a vendor selling food products under the name and style “M/s Kotalwar Agency”, has moved this application under Section 482 of the Criminal Procedure Code, 1973, for seeking quashing of the R.C.C. No.167/2010, pending in the Court of Judicial Magistrate, First Class, Basmathnagar. 2 Cri.Appln.No.3553/2010 3. The respondent No.2, the Food Inspector, Foods & Drugs Administration, Maharashtra State, initiated R.C.C. No. 167/2010 by lodging a complaint against the present applicant for the contravention of Section 7(1) read with Section 2(ia)(a), 2(ia) (m), 2(ia)(e) and Section 7(ii) read with Rule 32 and consequent commission of the offence punishable under Section 16 of the Prevention of Food Adulteration Act, 1954 in respect of “Appu Brand” Pepsi. According to the applicant, the Food Inspector visited his business premises and disclosed his intention to inspect and draw samples from the food articles stored and kept for sale at the said premises; and accordingly purchased food articles, one of which being 900 gms. of “Appu Brand” Pepsi, and drew therefrom the samples for analysis under a panchanama recorded in the presence of the panchas. 4. According to the prosecution/ the respondent No.2, one sealed sample so drawn was sent for analysis to the Public Analyst on 20.1.2009. Sample was received for analysis on 25.2.2009 and thereafter it was analysed between 5.3.2009 and 26.3.2009. The report of the analysis dated 31.3.2009 revealed that the sample of Pepsi (Appu Brand) did not conform to the standards of Prevention of Food Adulteration Act, and the sample was misbranded it being in contravention of Rule 32 of the Act. 3 Cri.Appln.No.3553/2010 5. It is not disputed that the administrative sanction for prosecution was granted by the Joint Commissioner, Food & Drugs Administration, Aurangabad on 7.6.2009 in response to the requisition made therefor on 14.5.2010. This sanction was communicated to the Food Inspector by local authority on 16.6.2010 and the complaint came to be filed in the Court of Judicial Magistrate, First Class, Basmath on 16.7.2000. It is also not disputed that the notice under Section 13(2) of the Food & Drugs Administration Act, 1954 was issued to the applicant on 17.7.2010 and was received on 19.7.2010. 6. This delay in giving the notice under Section 13(2) of the said Act, according to the applicant, has resulted in frustration of the valuable rights conferred by the said legislative provision and as a consequence thereof, there is miscarriage of justice. 7. Learned Advocate for the applicant, in support of this contention, cited the following judgments : i) 1967(0) AIR (SC) 970 (Municipal Corporation of Delhi Vs. Ghisa Ram 2) 2006(1) Bom.C.R. (Cri.) 258 (Rohit Mull of Mumbai & anr. Vs. State of Goa. 3) 2010(3) Bom.C.R. (Cri.) 103 (Shivkumar @ Shiwalamal Narumal Chugwa & ors. Vs. State of Maharashtra) 4 Cri.Appln.No.3553/2010 8. Learned A.P.P. for the State submitted that the commission of the offence of food adulteration is a serious offence and its disclosure is clearly made by the Public Analyst through his report dated 31.3.2009 in Form III and as such, the case is not fit to invoke extraordinary jurisdiction of this Court under Section 482 of the Criminal Procedure Code. 9. Public Analyst Report dated 31.3.2009 speaks about the receipt of the sample in sealed condition and in condition fit for analysis. It reveals that, the label on the sample was not in accordance with the provisions of Rule 32 of the Prevention of Food Adulteration Rules, 1955 as it failed to specify : (i) Names of ingredients used in the product (ii) Complete address of the manufacturer (iii) Net volume of content (iv) A distinctive Batch/ Lot/ Code number (v) The month and year up to which the product is best for consumption (vi) The month and year in which the product is manufactured 10. It also reveals that the said sample failed to confirm to the definition of standards of quality for ice candy given in Condition (B) of Prevention of Food Adulteration Rules, 1951 and 5 Cri.Appln.No.3553/2010 as such, the sample is adulterated and misbranded as per Prevention of Food Adulteration Act, 1954. 11. Controversy in the instant case revolves around section 13 of the Act. It deals with the report of Public Analyst and requires : (i) Delivery of the Public Analyst’s report regarding the result of the analysis of the food article submitted for analysis to the local health authority. (ii) In case of the report of the result of analysis disclosing 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 a person if any, whose name, address and other particulars have been disclosed, forward a copy of such report received 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 10 days from the date of receipt of copy of the report to get the sample of the article of the food kept by the Local (Health) Authority analysed by the Central Food Laboratory. It can be seen that the certificate issued by the Central Food Laboratory under sub-section 2(B) of Section 13 of 6 Cri.Appln.No.3553/2010 the said Act supersedes the Public Analyst’s report. It is not difficult to see from the said provision that the time element has an important role to play in countering the report of the Public Analyst and certainly it is in relation to the sample of food article in respect of which the accusations are made in the complaint. 12. In Ghisa Ram’s case (supra), there were accusations in respect of curd of cow’s milk collected from the shop of Ghisa Ram on 20.9.1961. Sample drawn from the curd was sent to the Public Analyst and its analysis was carried out on 3.10.1961. Certificate of analysis dated 23.10.1961 noted that the fats content in the curd was 11.6% and the non-fatty solids were 7.3 % - Not keeping with the standards prescribed by the rules framed under Prevention of Food Adulteration Act, 1954. The complaint was filed before the Magistrate by the Municipal Corporation of Delhi for commission of the offence under Section 16 of the Act for contravening Section 7 of the Act on 23.5.1962. On 4.10.1963, the respondents applied that the sample be sent for examination by the Director of Central Food Laboratory in accordance with the provisions of Section 13(2) of the Act and consequently, the Director of the Central Food Laboratory reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible. At the trial, a plea was taken by the respondent that his right of 7 Cri.Appln.No.3553/2010 obtaining the report of the Director of Central Food Laboratory was denied because of the delay by the appellant in launching the prosecution and the respondent could not be validly convicted. This defence was accepted by the Magistrate and the respondent was acquitted. The Punjab High Court reversed the acquittal and the decision of the High Court came to be challenged before the Apex Court. 13. The Hon’ble Apex Court in Ghisa Ram’s case held that if, for any reason, no such report is issued by the Central Food Laboratory, the report given by the Public Analyst does not cease to be the evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory. The Hon’ble Apex Court further clarified that this aspect, however, does not conclude the matter so far as the question of the validity of the acquittal of the respondent/ accused is concerned, and proceeded to make the following observations at para (4) of the judgment : ‘There can be no doubt that sub-section 2 of Section 13 of the Act confers a right on the accused/vendor to have the sample given to him examined by Director of Central Food Laboratory and to obtain a certificate from him on the basis 8 Cri.Appln.No.3553/2010 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 Central Food Laboratory and that certificate then supersedes the report given by the Public Analyst. If, in any case, the accused does not chose to exercise this right, the case against him can be decided on the basis of the report of the Public Analyst. Difficulty, however, arises in a case where the accused does exercise the right by making a request to the Court to send his sample for analysis to the Director of the Central Food Laboratory and the Director is unable to issue a certificate because of some reason, including the reason that the sample of the food article has so deteriorated and become decomposed that no analysis is possible. 14. Referring to the facts of the case thereafter, the Hon’ble Apex Court, in Ghasi Ram’s case, noticed that, it was a case where the respondent was deprived of the exercise of his right to have the sample examined by the Director of Central Food Laboratory by the conduct of the prosecution. 15. In the instant case, the applicant has not moved the trial Court invoking sub-section 2 of Section 13 of the Prevention of Food Adulteration Act, 1954 for getting the sample of the article of food kept by the Local Health authority analysed by the Central 9 Cri.Appln.No.3553/2010 Food Laboratory within a period of 10 days from the date of the receipt of the notice under the said provision. Nor there is any material to suggest the shelf life of the said article – Pepsi “Appu Brand” before this Court. It would, therefore, be preposterous to conclude that the delay in lodging the complaint has resulted in deprivation of the opportunity of exercising the right under Section 13(2) of the Prevention of Food Adulteration Act, to have the food sample examined by the Director of Central Food Laboratory by the conduct of the prosecution. 16. In Kabani’s case as well as in Rohit Mull’s case, a logical conclusion was possible for the reason of stipulation of “Best before period/ shelf life of the product mentioned on the food products. 17. At this stage, therefore, it is not possible to invoke the inherent jurisdiction of this Court under Section 482 of the Criminal Procedure Code, 1973. However, it will be open for the accused/ applicant to agitate this issue before the trial Court on the basis of the evidence led before it. The application is, therefore, rejected. ( U.D. SALVI, J. ) fmp/