1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MMO No. 2 of 2011. Date of decision: 22nd July, 2011. __________________________________________________________ Gurpreet Singh and another. ….Appellant. Versus State of Himachal Pradesh. ….Respondent. ._________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No For the petitioners : Mr. Pushpinder Singh Jaswal, Advocate. For the Respondent : Mr. P.K. Sharma, Addl. A.G. with Ms. Shubh Mahajan, Dy. A.G. __________________________________________________________ Justice Dev Darshan Sud, J. (Oral) The petitioners challenge continuation of further proceedings against them under the Prevention of Food Adulteration Act instituted before the learned Chief Judicial Magistratre, Shimla. 2. It is undisputed before me that sample of Culinary sauces other than tomato sauce & soya sauce was taken from the premises of Domino’s Pizza at Shimla on 14.7.2009. This sample was sent for analysis to the Public Analyst which report was submitted by the authority on 21.8.2009 stating therein that the sample contains 0.63% acidity against the minimum prescribed standard of 1.0% and the culinary sauce is adulterated. Thereafter, the sample was sent for analysis to the Central Food Laboratory, Mysore. The report has also been placed on record of the case. It states: 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 “I, Mr. V.D. Sattigeri found the sample to be CULINARY SAUCES OTHER THAN TOMATO SAUCE & SOYA SAUCE falling under item No. A16.28 of Appendix B of Prevention of Food Adulteration Rules, 1955. The sample was in a condition fit for analysis andhas been analysed during 26.11.2009 & 16.12.2009 and the result of its analysis is given below: Analysis Report: (1) Sample Description: Packed in labeled Poly bag. (2) Physical appearance: Creamy white thick oily liquid. (3) Label “FUN FOODS CHEESE BLEND” Proprietary Food-Cullinary Sauce Ingredients: Edible vegetable oil, Water, Cheese Powder, Milk, Solids, Sugar, Edible common Salt, Permitted Acide (E270), Permitted Emulsifying & Stabilizing Agents (E1442, E415), Edible Starch, Spices & Condiments, Yeast Extract and Permitted Antioxidant (E319), Cotains Permitted Class-II Preservative (E211 & E202): Mfd by: V.R.B. Pvt. Ltd., Uttarakhand; Batch No. V2-345; Mfd date:25.06.2009; Best before 3 months from manufacturing; Nutrition informtion: Given; Veg symbol:Given: Net wt: 2kg. Sl. No . Quality Characteristics Method of test used Result PFA Standar ds as per item ‘A.16.28 ’ of Appendi x -B 1 ACIDITY (% AS ACETIC ACID) AOAC 18th EDN.2005, 942.15 0.7 Not less than 3 1.0% 2. TEST FOR ADDED COLOUR JFT, 1966, 1,63-72 Negative - 3. TEST FOR PRESERVATIVE (BENZOIC ACID) AOAC 18th EDN. 2005, 910.02 Positive - 4. COLIFORM COUNT APHA.2001, 8.7 Less than 10/g. - 5. E. COLI APHA.2001, 8.7 Absent - 6. SALMONELLA in 25 g APHA.2001, 37.1 Absent - 7. STAPHYLOCOCCU S AUREUS APHA.2001, 39.5 Absent - Opinion And I am of the Opinion that the sample of CHEESE BLEND CULINARY SAUCE does not conform to the Standards laid down for CULINARY SAUCES OTHER THAN TOMATO SAUCE & SOYA SAUCE under the provisions of PFA Act 1954 & Rules thereof, in that a) Acidity percentage falls below the minimum standard limit.” 3. The Director was also of the opinion that it contain 0.7% acidity which is not in conformity of the rules prescribed under the Act. 4. Learned counsel appearing for the petitioner submits that there has been violation of mandatory provisions of Section 13 of the Prevention of Food Adulteration Act which requires not only that the smaples must be analysed in time but must also be sent for analysis before its expiry. Learned counsel points out that the report itself is contradictory as the sample was analysed between 26.11.2009 and 16- 12-2009. It was also stated that the manufacturing date of the food stuff was 25.6.2009 and was also clearly marked that it is best before three months from the date of manufacture which date was 25.6.2009. Three months were to expire on 25.9.2009 . In other words, on the date when the analysis was carried out by the Central Food Laboratory, Mysore, the 4 food stuff had already expired and in these circumstances minor changes were bound to occur. He has also submitted that the result which, if any, obtained did not represent the true value of the food substance i.e. acidity etc. as by that time, the expiry date had already elapsed. The food stuff had already expired and in these circumstances, the result would not be accurate. Once the food stuff contains a clause with respect to the expiry date, it should/ought to have been analyzed before that date. Learned Addl. Advocate General submits that this would not make any difference as it was a preserved sample which had been sent for analysis. This submission cannot be accepted as the sample has been analysed by the Central Laboratory after the date certified as “ best before”. 5. Learned counsel appearing for the petitioner places reliance upon the decision of the Bombay High Court (Goa Bench) in Rohit Mull & Anr. Verus The State of Goa, 206(2) AIR Bom. R. 194 to urge that the provisions of Section 13 of the Prevention of Food Adulteration Act vesting a right in a person to have the sample analysed by Central Food Authority is mandatory. There is no dispute with this proposition. There is no doubt in my mind that the procedure tobe followed under Section13 of the Act is mandatory In Girishbhai Dahyabhai Shah versus C.C. Jani and Another (2009)15 Supreme Court Cases 64, the Supreme Court reiterates that these provisions are mandatory. This Court in Cr.MMO No. 108 of 2010, titled as ITC Ltd. versus State of H. P. & Others, decided on 28th March, 2011 has also followed these principles. In Rameshwar Dayal versus State of U.P. 1996(2) FAC 197 and in Lakshmi versus State 1996 (2) FAC 198 also supports these propositions. Adverting to the decisions referred to above, I am of the opinion that the results so obtained cannot be treated as being in violation of the standards as 5 prescribed by the Act and the Rules as admittedly the sample has been analyzed after the expiry date which was clearly indicated “Best Before”. In these circumstances, the continuation of the proceedings before the learned trial Court is nothing but an abuse to the process of law. On this principle I am supported by the Judgement of the Supreme Court in M/s Pepsi Foods Ltd. and another versus Special Judicial Magistrate and Others, AIR 1998 SC 128. The petition is allowed accordiglly and the proceedings against the petitioner are quashed. (Dev Darshan Sud), Judge. 22nd July, 2011. (jai)