IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No.202 of 2010. Judgment Reserved on: 18.06.2011 Date of decision: 24.06.2011 M/s.Ruchi Oil & Vanaspati Pvt.Ltd. … …Petitioner Versus State of H.P. & Others. … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1yes. For the Petitioner: Mr.Narinder Sharma, Advocate. For Respondent No.1: Mr.P.K. Sharma, Additional Advocate General with Ms.Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud,J. This petition has been preferred against the order passed by the learned Sessions Judge praying for quashing of proceedings pending before the learned trial Court where the petitioner has been impleaded as one of the accused. 2. The learned trial Court, by its order dated 22.12.2009, had dismissed an application under Section 468 Cr.P.C. instituted by the petitioner herein praying that continuation of the proceedings against him would be an abuse of the process of law as the material on 1 Whether the reporters of Local Papers may be allowed to see the judgement?yes. 2 the record does not warrant its impleadment and valuable rights available to the petitioner under Section 13 of the Prevention of Food Adulteration Act (hereinafter referred to as the `Act’) have been violated. 3. Application under Section 20-A of the Act was filed by the accused before the Court praying that it had received packed `Ruchi Oil and Vanaspati’ from the manufacturer and supplied it further in the same condition and that in these circumstances the liability would be that of the manufacturer. It is this petition which prompted the Court to implead manufacturer as one of the accused. 4. Application under Section 468 Cr.P.C. was filed by the petitioner herein stating therein that notice of accusation was put to applicant/accused on 13.10.2009. The applicant states that the record itself shows that the samples of the alleged articles of food were taken on 17.9.2004 as pleaded by the Food Inspector and sent to the Public Analyst who submitted his report on 27.10.2004 to the Local Health Authority, Una. Thereafter, the case was sent to the Chief Medical Officer, Una, for obtaining sanction for launching the prosecution and the complaint was filed before the Court on 14.11.2006 i.e. after two years and 17 days of the original sample having been taken. 5. According to the petitioner, the present case is a summons case and to be tried summarily as provided 3 under Section 16-A of the Act. The application continues that the shelf life of the alleged food product is limited and the valuable rights of the applicant under the law has also been infringed which has cause prejudice to the applicant and has resulted in manifest injustice to the applicant. 6. Application has been instituted on pleadings in very general terms. This application was rejected by the learned trial Court holding that the right of the accused under Section 13(2) of the Act has not been infringed because this is also a case of misbranding as also adulteration and as such there was nothing to show that the sample cannot be analyzed. The petitioner thereafter went in revision before the learned Additional Sessions Judge, Una challenging the order of dismissal dated 22.12.2009. The Court after noticing the facts, holds that the summoning order dated 16.3.2009 and the notice of accusation dated 13.10.2010 have not been challenged and they attained finality. It also notes that the accused has not exercised its right of having the second sample tested from the Central Food Laboratory by taking recourse to the provisions of the Section 13(2) of the Act. The warranty, purporting to be of the food stuff, has also been established on the record and in these circumstances the application was rejected. 7. Learned counsel for the petitioner submits that both the Courts below are wrong in holding that 4 the petitioner can be tried for the offences as alleged. Learned counsel urges (a) that the right under Section 13(2) of the Act has been violated, the provisions are mandatory and in these circumstances, serious prejudice has been caused to the petitioner herein; (b) that there is no warranty issued/held out by the petitioner which can be ascertained from the record and in these circumstances, the proceedings are nothing but an abuse of the process of law. To strengthen his argument, learned counsel relies on the judgment of the Supreme Court in Girishbhai Dahyabhai Shah vs. C.C. Jani and Another, (2009)15 SCC 64. Dealing with the provisions of Section 13 of the Prevention of Food Adulteration Act, the Court in this case, after considering the provisions of the statute, holds:- “8. It will be apparent from the above, that only on receipt of the report of the Public Analyst under sub- Section(1) to the effect that the article of food is adulterated, can a prosecution be launched and a copy of the report could be supplied to the accused. Sub-Section(2) also indicates that on receipt of the report the accused could, if he so desired, make an application to the court within a period of 10 days form the date of the receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. In other words, in the 5 instant case, the appellant was prevented from applying for analysis of the second sample before 17th July, 1989, by which time the second sample of curd had deteriorated and was not capable of being analysed as was found in the case of Ghisa Ram (supra) referred to above. 9. In that view of the matter, we are unable to sustain the judgment of the High Court impugned in this appeal and we also see no reason to continue with the proceedings which have lasted for 28 years in the absence of any valid and reliable report with regard to the second sample. 10. Accordingly, the appeal is allowed. The order passed by the High Court is set aside and the proceeding, being Crl. Complaint No.58 of 1989, pending before the Metropolitan Magistrate, Ahmedabad, is quashed.” (p.66) 8. Learned counsel also places reliance on another decision of the Supreme Court in M/s.Murlidhar Shyamlal and another vs. State of Assam, 1996(1)F.A.C. 86. The Court holds:- “8. It is then contended that cash memo contains such a recital and he has taken us through the evidence stated by the witness. From the evidence, it is not clear that it contained a warranty as prescribed in Form VI-A. Counsel seeks to place reliance on the judgment of this Court in K.Ranganatha Reddiar vs. The State of Kerala 6 [(1969)2 SCC 457 at 459}. In that case, since the cash memo was produced as a part of the record and on consideration of recitals, this Court had considered that when a cash memo was given by the dealer to the accused, it must be construed in the language employed therein and the benefit of doubt was given. In this case, we cannot make any guess as to what would be the nature of the language used in the cash memo which was not filed in the absence of any specific recital therein. As seen in the recital of the Panchanama, there is no mention thereof as envisaged in Form VI-A. Under these circumstances, we are constrained to confirm the conviction and sentence minimum period of six months and is mandatory after the Amendment Act, 1976, we cannot interfere with the sentence.” (p.88) 9. Learned counsel also places reliance on a decision of this Court in Harish Rangta vs. State of H.P. and another, Latest HLJ 2009 (HP) 118, to urge that since the warranty has not been in any manner proved/established and does not connect the petitioner, the continuation of proceedings are an abuse of the process of the Court. 10. I have not been able to ascertain as to why the summoning order or the order of impleadment thereafter has not been challenged. In any event, subsequent challenge on the ground that there is no 7 evidence against the petitioner and even the documents prima facie do not establish it, should have been at the conclusion of the trial for the reasons that the facts urged were to be proved by leading cogent evidence are not a matter of mere conjecture on the record. I need not reiterate that the provisions of Section 13 of the Prevention of Food Adulteration Act are mandatory and do not brook of any other interpretation. But, what is required is proof of a fact negativing the complicity of the petitioner herein. The submission that the accused was never an agent of the petitioner or authorized to sell the food stuff, subject matter of the petition, is a question of fact to be established by leading of evidence. Whether a warranty has been issued or not is a fact requiring proof, surely, this could have been done at the very initial stage itself. These facts can be established by leading evidence before the learned trial Court to apply principles of law applicable. Such a foundation having not been established/laid down before the Court below by actual proof, cannot now be adjudicated in the present petition. It will be open to the petitioner to urge and establish the point as pleaded in this petition and to establish these facts by evidence before the learned trial Court. There is no gainsaying that, once these facts are established, the petitioner would obviously be entitled to acquittal. 8 11. On the apprehension expressed by the petitioner that the representative of the petitioner is being asked to attend Court on every date of hearing, I direct that in case an application for exemption is made, it shall be disposed of in accordance with law. In case exemption is granted that will be no ground for adjournment and also to urge that evidence was recorded at the back of the petitioner seriously prejudices its right. The petition is disposed of. June 24, 2011 (Dev Darshan Sud) (aks) Judge.