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Andhra High Court · body

2005 DIGILAW 935 (AP)

Gangaiahnaidu Rama Krishnan v. State Of A. P.

2005-10-05

V.ESWARAIAH

body2005
( 1 ) ALL these criminal petitions are filed by the petitioners to quash the proceedings in different calendar Cases on the file of the Courts of the Judicial First Class Magistrates pending against them for the offences under Sections 2 (ia) (l) and 7 (1) of The Prevention of Food adulteration Act, 1954 (for short the Act) and punishable under Sections 16 (c) (a) (i) of the Act and The Prevention of Food adulteration Rules, 1955 (for short the rules ) ( 2 ) VARIOUS grounds have been raised to quash the prosecution contending that the rights conferred on the accused under section 13 (2) of the Act has become illusory, frustrated and lost. The right under section 13 (2) of the Act is a guaranteed right to the accused. The shelf life of the beverage is six months from the date of package and as there is a label on the package stating that it is to be used best before six months, the beverage in question will not retain the specific qualities and will not give the true and correct values. Hence the complaint ought not to have been filed. The preservative was not added, which is evident from the Public Analyst report. The impleading of other accused who are not in charge or responsible to the conduct of the business is illegal and mala fide. In some of the cases as required under law, a nominee was appointed and therefore, the nominee is alone liable for prosecution but not the other Directors. It is stated that the mere presence of suspended particles and the rusting of crown cork would not amount to adulteration of the beverage. Rusting of the crown cork cannot be attributed to the manufacturer, as it is only rust proof crown cork that is used to seal the bottle not only here but elsewhere in the country and worldwide. It may be due to mishandling by the retailer/vendor by which the manufacturer cannot be made as accused. The nature of suspended particles is not mentioned in the Analyst report. It is stated that the learned Magistrates have mechanically taken cognizance of the complaints without looking into their contents and the documents filed along with the complaints. Therefore, the CCs are liable to be quashed. The nature of suspended particles is not mentioned in the Analyst report. It is stated that the learned Magistrates have mechanically taken cognizance of the complaints without looking into their contents and the documents filed along with the complaints. Therefore, the CCs are liable to be quashed. ( 3 ) THE Food Inspector inspected the shops of the first accused, who are liable for all the acts and omissions committed during the course of the business. The other accused in various cases either the Assistant General Managers or Managers or in charge of the business of the Hindustan coca Cola Beverages Private Limited, are responsible for the conduct of the business of the said company. Thus, the persons who are in charge of the business, the directors of the company and the persons who are responsible for the conduct of the business for all acts and omissions committed during the course of the business of the said company are also made as accused in the inception. It is stated that the Food inspectors purchased the sealed bottles of coca Cola, Thums Up, Limca, Fanta, Sprite, kinley Club Soda, Kinley pure drinking water etc, from the vendors, which are kept for sale for human consumption, which are manufactured, marketed and supplied by the said company. They collected the samples of the said sealed sweetened carbonated beverages for analysis to check whether the above said sealed sweetened carbonated beverages are adulterated as contemplated under sub-sections 1 and 2 of Section 10 of the Act and accordingly served notices in Form VI to the first accused. The food Inspectors divided the sample collected into three equal parts. After purchasing the required samples in the presence of the panch witnesses one of the samples was sent to the Public Analyst, Food Laboratory, nacharam, Hyderabad and also a copy of the memorandum and specimen impression of the seal used to seal the packet was sent to the Public Analyst. The remaining two parts of the sample parts and two copies of the memorandum of Form VII was sent in the sealed packets to the local Health Authority. The Public Analyst after conducting due analysis of sample opined that the sample was adulterated as it contains suspended particles etc. upon which the complaints have been filed against the accused for commission of offences under the relevant sections of the act. The Public Analyst after conducting due analysis of sample opined that the sample was adulterated as it contains suspended particles etc. upon which the complaints have been filed against the accused for commission of offences under the relevant sections of the act. ( 4 ) AS the contentions in all the criminal petitions are similar the facts in one criminal petition would suffice to appreciate the contentions of all the criminal petitions. Accordingly the facts of the first case in crl. P. No. 327 of 2003 are narrated as follows: ( 5 ) C. C. No. 424 of 2002 was filed on the file of the II Additional Munsif Magistrate, mangalagiri, Guntur District by the State of andhra Pradesh represented by the Food inspector against three accused, who are petitioners in the said criminal petition. The first accused is the Quality Assurance manager of Hindustan Coca-Cola Beverages private Limited, the second accused is the nominee of the said company and the third accused is M/s. Hindustan Coca-Cola beverages Private Limited represented by its nominee. ( 6 ) ON 27-12-2000 the concerned notified Food Inspector visited M/s. Hindustan coca-Cola Beverages Private Limited, where A. 1 was present and managing the factory. In the presence of two witnesses of the company the Food Inspector inspected the said factory and suspected the quality of the sweetened carbonated beverage (Thums-up) as adulterated, which is meant for sale to the public for human consumption and purchased six bottles of 300 ml each by paying its cost. Then a notice in Form VI was issued to A. 1 intimating the intention of sending the so purchased sweetened carbonated beverage to the public analyst for the analysis purpose and the copy of the served notice was attested by other two witnesses. The so purchased six bottles were sealed as per the prescribed procedure in three equal parts by making two bottles as one part. Then one of the sample bottles was sent to the public analyst along with memorandum of Form VI and the remaining two parts of the sealed samples were sent to the local Health Authorities. The Public Analyst state Food Laboratory, Hyderabad analysed the sample and forwarded the same to the Local Health Authority, Guntur wherein it was opined that the sample contains e. coli and it does not conform to Coliform count and therefore, it is adulterated. The Public Analyst state Food Laboratory, Hyderabad analysed the sample and forwarded the same to the Local Health Authority, Guntur wherein it was opined that the sample contains e. coli and it does not conform to Coliform count and therefore, it is adulterated. After obtaining the written consent from the competent authority for the prosecution of the accused for manufacturing, stocking and selling adulterated Sweetened Carbonated beverage (Thums-up) meant for sale to the public for human consumption in the interest of the public. As per the Public Analyst report and the material evidence collected the accused were liable for prosecution for the offences under Sections 2 (ia) (l) and 7 (1) of the Act and punishable under Section 16 (c) (a) (i) of the Act and as per Rule 16 of the Rules it was requested to levy fines to be credited to the Local Health Authority concerned. ( 7 ) SRI. E. Manohar, learned senior counsel appearing for the petitioners submits that the Public Analyst opined vide his report dated 8-2-2001 that the sample contains e. Coli and it does not confirm to Coliform count and therefore, it is adulterated. On 16-7-2002 the Director, Institute of Preventive medical, Public Health Laboratories and food (Health) Administration, Hyderabad has accorded a written consent for launching prosecution against the accused persons and accordingly a complaint was filed on 14-10-2002. Taking cognizance of the complaint by the learned Magistrate is wholly illegal, without jurisdiction and an abuse of the process of the Court and therefore the CCs are liable to be quashed on the ground that the right guaranteed of the accused under Section 13 (2) of the Act is denied. The shelf life of the beverage is six months from the date of manufacture. it was manufactured on 23-12-2000 and as such its shelf life expired by 23-6-2001. Rules 32 (i) of the Rules was inserted on 13-6-2000 with effect from 1-9-2000 making it mandatory to specify on every label that the product is "best BEFORE. . . . . . . . . MONTHS AND YEAR". Explanation viii (i) says that "best before" means the date which signifies the end of the period under any stated storage conditions which the product will remain fully marketable and will retain any specific qualities for which tacit or express claims have been made. . . . . . . . . MONTHS AND YEAR". Explanation viii (i) says that "best before" means the date which signifies the end of the period under any stated storage conditions which the product will remain fully marketable and will retain any specific qualities for which tacit or express claims have been made. On the ground that on the cap of the beverage bottle in question it was specified that the produce was best before six months from the date of manufacture, filing a complaint is wilful and with a mala fide intention to launch prosecution against the petitioners. The food Inspector has only mentioned the batch no. and manufacturing dated as 23-12-2000. After 23-6-2001 the beverage will not retain specific qualities and any analysis will not give correct and true picture of its quality. Label on the container, which is marked as document No. 4 and Form No. VI - memorandum of Public Analyst, clearly establishes that preservative was not added to the sample by the Food Inspector. Hence, even if the Central Food Laboratory (for short the CFL ) analyzes the beverage, after six months period, the values permitted in Clause A. 01. 01 in Appendix B to the rules will not be reflected and thus, the right under Section 13 (2) of the Act has become illusory. But the delay of 23 months in launching the prosecution has not at all been explained in the complaint and on filing of the complaint cognizance was taken for the offences under Sections 2 (ia) (l) and 7 (1) of the Act. Section 2 (ia) (l) of the act states that an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health. The report of the public Analyst shows that 4 colonies/ml of Coliforms was present which should be absent and E. Coli was present. The public Analyst opined that sample contained e. coli and it does not conform to Coliform count and in the said report the opinion of the Public Analyst does not state that the article is injurious to health. The public Analyst opined that sample contained e. coli and it does not conform to Coliform count and in the said report the opinion of the Public Analyst does not state that the article is injurious to health. Hence, there being no violation of Section 2 (ia) (l) of the Act, the learned Magistrate ought not to have taken cognizance for the said offences. ( 8 ) IT is further stated that there is violation of provisions of Section 13 (2) of the Act read with Rule 9 (b) of the Rules, which states that Local (Health) Authority shall within a period of 10 days after institution of the prosecution forward a copy of the report of the result of the analysis, to the person from whom the sample of the article of food was taken, informing that he may make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample of the article of the food kept by the Local (Health) Authority analysed by the CFL. In the instant case the complaint was filed on 4-10-2002 and notice dated 6-11-2002 under Section 13 (2) of the Act was forwarded to the accused after 32 days and not within a period of ten days. Non-compliance of this mandatory provision vitiates the prosecution and the case cannot be continued more so, when the product is having best before date or the shelf life tested and that under Section 17 (l) (a) (i) of the Act read with Rule 12 (b), A. 3 company nominated A. 2 and therefore, the prosecution cannot be launched against A. 13. A. 1 is the Quality Assurance Manger, who was present when the sample was drawn and he is not the nominee of the A. 3, therefore, a. 1 cannot be prosecuted. It is further stated that the consent for prosecution granted under Section 20 (1) of the Act on 16-7-2002 long after the expiry of the best before dated by 23-6-2001 is wholly illegal. The consent was given mechanically without looking into the documents and various factual aspects and the statutory provisions. Had the authority looked into the documents and the provisions of the Act and the rules he would have riot given the consent. The consent was given mechanically without looking into the documents and various factual aspects and the statutory provisions. Had the authority looked into the documents and the provisions of the Act and the rules he would have riot given the consent. Likewise the learned Magistrate also mechanically took cognizance of the complaint without perusing the contents in the complaint and the documents annexed to the complaint and issued summons to the accused. ( 9 ) IT is further stated that in some of the other cases the manufacturers, distributors and dealers were also illegally implicated for a joint trial along with the sellers/vendors based on the label contained by the bottle/package though no warranty is given by the said accused. It is stated that under Section 14 of the Act no manufacturer or distributor of, or dealer in, any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. In some of the cases there is no bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor or dealer when the samples were taken from the vendor and therefore, in the absence of any such warranty the manufacturers or distributors or dealers cannot be prosecuted. It is further stated that under Section 14a of the Act it is mandatory duty of the said vendor of an article to disclose the name, address and other particulars of the person from whom he purchased the article of food. In the absence of any such disclosure by the vendor the manufacturers or distributors or dealers cannot be prosecuted based on the label of the bottle. Only under Section 20a of the Act during the course of the trial of any offence if the court satisfies on the evidence adduced before it that such manufacturer, distributor or dealer is also concerned with that offence, then the Court may proceed against them as though a prosecution had been instituted against them under Section 20 of the Act. Therefore, the joint trial is illegal and unsustainable. Therefore, the joint trial is illegal and unsustainable. ( 10 ) LEARNED Senior Counsel for the petitioners further contended that as per the judgment of the Supreme Court in the case of State of Harayna v. Unique Farmaid private Limited, 1999 (2) ALD (Crl.) 908 (SC) = (1998) 8 SCC 190, it is expedient to launch prosecution so that the right of the accused is not lost and in the instant also the expiry of the date of the concerned beverage was already over and sending the sample to the CFL would serve no purpose. The valuable statutory right available to the accused under Section 13 (2) of the Act has been deprived with and therefore, the said judgment rendered under the Insecticides act, 1969 is clearly applicable to the present cases as the shelf life of the samples had already expired and no purpose would be served by sending the second sample bottles to the CFL. He also stated that following the said judgment of the Supreme Court this court allowed Crl. P. Nos. 1396, 1397, 2725 of 2002 and Crl. P. Nos. 4654 and 4908 of 2003. Therefore, all these criminal petitions are liable to be allowed following the said judgments by quashing the CCs. ( 11 ) ON the other hand, Sri H. Prahalada Reddy, the learned Additional public Prosecutor appearing for the respondent - State submits that the said judgment of the Supreme Court delivered under the Insecticides Act has no application to consider the cases under the Prevention of Food Adulteration Act. The provisions under the Insecticides Act are different and distinct from that of the provisions of the prevention of Food Adulteration Act. Therefore, the judgments of the learned single Judges of this Court following the said judgment of the Supreme Court have no relevance. It is stated that no prejudice is caused to the accused and none of the accused have availed the right to get the second sample bottle analysed and tested by the CFL under Section 13 (2) of the Act and in the absence of any contrary report, the report of the State Public Analyst becomes final under Section 13 (5) of the act. Without availing the opportunity of sending the second sample bottle, it is not open for the accused to contend that the shelf life of the contents of the concerned bottle has expired. Without availing the opportunity of sending the second sample bottle, it is not open for the accused to contend that the shelf life of the contents of the concerned bottle has expired. It is also further stated that no preservative is required to be added for the Sweetened Carbonated Beverage. There are certain other food items to which the concerned preservative is required to be added but in the absence of any rule it cannot be said that Coca-Cola, thums-up, Fanta etc. seized from the accused is not fit for analysis by the CFL. It is always open for the accused to adduce , evidence during the course of the trial stating that the second sample bottle became unfit for analysis and that prejudice has been caused to them. But, on the other hand, the petitioners themselves have stalled the criminal proceedings by obtaining interim directions from this Court without availing their statutory right to get the second sample bottle tested and analysed by CFL. The petitioners are liable to blame themselves for delaying the matter and for not taking recourse for sending the second sample to the CFL. If there is a report of CFL, the said report supersedes over the report of the State Food Laboratory but without availing the opportunity it is not open for the petitioners to contend that their valuable right has been deprived with. He further submits that the main objective of the Act is to prevent adulteration of food and protect the health of citizens. Preservatives will be added only to Milk, Cream, Dhahi, Khua and Khoa based and paneer based sweets, such as kakkad and burfi, chutnery and prepared foods as per Rule 20 of the Rules. As far as the sweetened carbonated water is concerned no preservatives are added at the time of lifting the sample, or at the time of testing of the sample. As far as best before is concerned there is no expiry date. Best Before is defined in explanation VIII of Rule 32 of the Rules. If the manufacturer uses the contaminated water the sample will be found in microbiological examination. The Insecticides act, Drugs and Cosmetics Act and seeds Act does not have relevance as far the provisions of the Prevention of Food adulteration Act is concerned. There is no shelf life as far as the Act is concerned. If the manufacturer uses the contaminated water the sample will be found in microbiological examination. The Insecticides act, Drugs and Cosmetics Act and seeds Act does not have relevance as far the provisions of the Prevention of Food adulteration Act is concerned. There is no shelf life as far as the Act is concerned. ( 12 ) THE Prevention of Food adulteration Act was enacted by the parliament to prevent the adulteration of food. Food is one of the basic necessities for sustenance of life. Pure, fresh and healthy diet is most essential for the health of the people. It is no wonder to say that the community health is national wealth. Adulteration of food stuffs was so rampant, widespread and persistent and as there was need to take a drastic remedy in the form of a legislation, which is the need of the hour, to check this kind of anti-social evil, this Act was enacted. The Act has been enacted to correct and remedy the widespread evil of food adulteration to ensure the sale of wholesome food to the people. It is well settled that wherever possible, without unreasonable stressing and straining in all such statutes should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circulation. As per the various judgments of the Supreme court I am of the opinion that the provision of the Act are required to be observed in the strict adherence to safeguard the interest of the consumers of the article of food. Stringent laws will have no meaning if the offenders get away on some or the other technicalities. ( 13 ) THE words adulterant and adulterated have wide meaning as defined under Section 2 (i) and 2 (ia) of the Act. Food means any article used as food or drink for human consumption other than drugs and water. Stringent laws will have no meaning if the offenders get away on some or the other technicalities. ( 13 ) THE words adulterant and adulterated have wide meaning as defined under Section 2 (i) and 2 (ia) of the Act. Food means any article used as food or drink for human consumption other than drugs and water. Under Section 7 of the act no person shall himself or by any person on his behalf manufacture for sale, or store or distribute any adulterated food; any misbranded food; any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; any article of food the sale of which is for the time being prohibited; any article of food in contravention of any other provision of the Act or of any rule made under the Act and any adulterant. As per explanation to Section 7 of the Act, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) of Section 7 of the act, if he stores such food for the manufacture therefrom of any article of food for sale. Sections 10 and 11 of the Act deals with powers of food inspectors and the procedure to be followed by them. The manner of purchase of food is dealt within section 12 of the Act. The food inspector after taking samples under Section 11 of the Act he shall send one of the samples for analysis to the Public Analyst under section 11 (l) (c) (i) of the Act and thereafter the Public Analyst shall test the sample and send the report to the Local (Health) authority. There is no time limit prescribed under Sections 11, 12 and 13 of the Act in respect of the non-perishable nature of the food. There is no time limit prescribed under Sections 11, 12 and 13 of the Act in respect of the non-perishable nature of the food. The time limit is only prescribed under Section 13 (2) of the Act that after instituting the prosecution against the person from whom the article of food was taken and also the persons whose names were disclosed under Section 14 (a) of the act for the forwarding the copy of the report of the result of the analysis to them, then only such persons are entitled to make an application to the Court within a period of 10 days from the date of receipt of the copy of the report to get the sample and the article kept by the Local Authority analysed. If any such right has been exercised under Section 13 (2) of the Act then the certificate issued by the Director , central Food Laboratory shall supersede the report given by the Public Analyst under section 13 (3) of the Act. If no opportunity has been availed for sending the second sample the question of superseding or the question of depriving the right of the accused to get the second sample analysed does not arise and if that be so, under section 13 (5) of the Act the Public Analyst report unless it has been superseded by sub-section (3) of Section 13 of the Act it becomes an evidence. ( 14 ) UNDER Section 14 there is bar that no manufacturer or distributor of, or dealer in, any article of food shall sell such article to any vendor without warranty in writing in the prescribed form about the nature and quality of such article to the vendor. Any bill, cash memorandum or invoice in respect of the sale of any article of food given by the manufacturer or distributor of, or dealer in, such article to the vendor shall be deemed to be a warranty given by them. Under Section 14a of the Act every vendor of an article of food, if so required, disclose to the food inspector the name, address and others particulars of the person from whom he purchased the article of food. Under Section 14a of the Act every vendor of an article of food, if so required, disclose to the food inspector the name, address and others particulars of the person from whom he purchased the article of food. Therefore, in the absence of the any warranty, bill or invoice, on the particulars furnished by the vendor also the manufacturer or distributor or dealer can be prosecuted and proceedings can be initiated on the particulars disclosed by the vendor. ( 15 ) SECTION 16 of the Act deals with penalties. Section 17 of the Act deals with the offence by the companies and their nominees. The vendor cannot plead any defence that he was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale. But, however, the said vendor shall not be deemed to have committed offence for adulteration or misbranding an article of food if he proves that he purchased the article of food from the licensed manufacturer, distributor or dealer or any other manufacturer, distributor or dealer with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and sold in the same state as he purchased it. ( 16 ) UNDER Section 20 of the Act no prosecution for an offence under the Act shall be instituted except by or with the written consent of the concerned authority. But, however, for the offences under Section 14 and 14a of the Act no such consent is required for launching prosecution and for taking cognizance and trial. For the offences punishable under Sections 14 and 14a of the Act prosecution can be instituted without any written consent from the competent authority. Section 14 and 14a of the Act deals with the liability of selling the food article without any warranty. For the offences punishable under Sections 14 and 14a of the Act prosecution can be instituted without any written consent from the competent authority. Section 14 and 14a of the Act deals with the liability of selling the food article without any warranty. ( 17 ) UNDER Section 20a where at any time during the trial of any offence under the Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer and if the Court is satisfies on the evidence adduced before it, such manufacturer, distributor or dealer is also concerned with that offence then notwithstanding anything contained either under Section 319 (3) of the Code of Criminal procedure or in Section 20 of the Act proceed against him as though a prosecution had been instituted against them. ( 18 ) THE time limit has been prescribed under Rule 9b of the Rules to forward a copy of the report of the result of the analysis in Form III within ten days after institution of the prosecution to the persons from whom the article of food was taken and also to the persons whose particulars have been disclosed under Section 14a of the Act. Under Rule 15 (f) the label on any sample of food sent for analysis shall bear the nature and quantity of preservative, if any, added to the sample. Rule 19 deals with addition of preservatives to samples. Any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis. In certain milk products certain preservatives are prescribed to be added under Rule 20 of the Rules. Rule 32 of the Rules deals with package of food to cany a label. Rule 32 (g) of the Act states that the date of expiry in case of packages of aspertame which shall not be more than three years from the date of packing. Under Rule 32 (i) the month and year in capital, upto which the product is the best for consumption has to be mentioned stating:"best BEFORE. . . . . . MONTHS AND YEAR or"best BEFORE. . . . . . . . . MONTHS FROM packingor"best BEFORE. . . . . . . . . . . . Under Rule 32 (i) the month and year in capital, upto which the product is the best for consumption has to be mentioned stating:"best BEFORE. . . . . . MONTHS AND YEAR or"best BEFORE. . . . . . . . . MONTHS FROM packingor"best BEFORE. . . . . . . . . . . . . . MONTHS FROM manufactureor"best BEFORE UPTO MONTH AND year" ( 19 ) BEST before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable. ( 20 ) BEST before is also explained in explanation VIII (i) or Rule 32 of the Rules which 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. In addition to the date of best before, any special conditions for the storage of the food shall be declared on the label if the validity of the date depends on such storage. The conditions for the sale have been mentioned under Rule 49 of the Rules and the conditions for the licence are mentioned in Rule 50 of the Rules. The definition of preservative is mentioned at Rule 52, the classification of preservatives is mentioned as Rule 53 and the use of more than one Class II preservative is prohibited at Rule 54 of the rules. Under Rule 55 of the Rules the use of Class II preservatives is restricted in every article of food. But nowhere the sweetened Carbonated Beverage, which is an article of food, is mentioned requiring the preservative. It is also pertinent to note that under Rule 55d of the Rules it is mentioned that Nisin is used as a preservative in coconut water drink. Therefore, the learned Additional Public Prosecutor submits that if pure water is used then the question of any decomposition does not arise and no preservative is required for carbonated water. It is also pertinent to note that under Rule 55d of the Rules it is mentioned that Nisin is used as a preservative in coconut water drink. Therefore, the learned Additional Public Prosecutor submits that if pure water is used then the question of any decomposition does not arise and no preservative is required for carbonated water. Under Rule 5 of the Rules standards of quality of various articles of food are specified in Appendix B. The beverages non-alcoholic standards of quality are prescribed in Appendix B. The Public analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Courts below as to how prejudiced has been caused to them either because of the delay in launching the prosecution or for any other reasons. ( 21 ) THE contention of the learned senior Counsel for the petitioners that the manufacturers have mentioned the shelf life of the product on the label of the product and that the period of the shelf life is over and therefore, prejudice has been caused to them in launching prosecution after the period of the shelf life cannot be accepted as I am of the opinion that the article of food is meant for the human consumption and there is no evidence adduced to show that the sample has become unfit for analysis. Merely because the best before period prescribed by them is over it cannot be said that the said article of food is not adulterated. ( 22 ) HOWEVER, it is pertinent to note that the Supreme Court of India in the case of Tusiram v. State of Madhya Pradesh, (1984) 4 SCC 487 , held that Rule 9a is directory and if after receiving the Public analyst s report, the accused does not apply to the Court to have the sample sent to the Central Food Laboratory, he may not be heard to complain about delay in receipt of the report by him, unless he is able to establish some other prejudice to him. ( 23 ) THE Supreme Court in the case of prabhu v. State of Rajasthan, 1994 (2) scc 177, held that unless the accused avails his right under Section 13 (2) of sending the sample in the custody of the Court for analysis by the Central Food Laboratory after prosecution was laid or immediately after the notice was received by him in the case, by making an application to the Court, it cannot be said that prejudice has been caused to him. It is settled law and consistently held by the Supreme Court that if the accused had not availed the remedy under Section 13 (2) to send the sample of the article of food for analysis by the Central food Laboratory, it cannot be held that the accused suffered prejudice on account of delay in laying the prosecution. ( 24 ) IN all these cases the accused have not taken any steps for sending the second sample to the CFL. If that be so, it cannot be said that the accused are disputing the correctness of the report of the Public analyst. Therefore, I am of the opinion that no prejudice has been caused to the petitioners under Section 7 read with sections 17 and 20 of the Act for continuing the prosecution against them. ( 25 ) IN fact, the Apex Court also held that Rule 7 of the Rules relating to the duties of the Public Analyst in strictly not following the procedure is directory but not mandatory in the case of T. V. Usaman v. Food Inspector, Tellichery Municipality, air 1994 SC 1818 . It is held that merely because the public analyst has not sent the copy of the report within period of 40 days to the local health authority in the prescribed for under Rule 7 (3) of the Rules, which is only procedural to speed up the process of investigations it cannot be said that the valuable right of the accused under Section 13 (2) of the Act has been deprived with. ( 26 ) A Full Bench of Gauhati High court in the case of Ratanlal Agarwala, jorhat v. State of Assam, 1993 Cri. ( 26 ) A Full Bench of Gauhati High court in the case of Ratanlal Agarwala, jorhat v. State of Assam, 1993 Cri. LJ 2747, held that Rule 9a of the Rules is not mandatory but directory and the non compliance or the defective compliance, as long as there is no prejudice caused to the accused, cannot vitiate the prosecution or lead to acquittal. Courts cannot assume prejudice without any factual foundation or data. As the accused did not apply to the court to send parts of the sample to the central Food Laboratory for analysis it cannot be said that prejudice has been caused to him. ( 27 ) THERE is no dispute that the report of the Central Food Laboratory supersedes the report of the Public Analyst as held by the Apex Court in the cases of Chetumal v. State of Madhya Pradesh, (1981) 3 scc 72 and Calcutta Municipal corporation v. Pawan Kumar Saraf 1999 (1) ALD (Crl.) 354 (SC) = (1999) 2 SCC 400 . Therefore, unless the petitioners question the validity of the Public Analyst report and avail the opportunity under Section 13 (2) of the Act and without leading any evidence as to how prejudice has been caused to them it cannot be said that prejudice has been caused to them. ( 28 ) THE case of Ajitprasad v. State of Maharahstra, AIR 1972 SC 1631 , relates to the food product of milk. In the said case the Food Inspector took the samples and the Public Analyst reported that the milk was adulterated. Based on the Public analyst report the prosecution was launched. It was contended that by the time the notice was received by the accused the sample would have become decomposed therefore, he lost the valuable right of sending the other part of the sample for analysis by central Food Laboratory. He was acquitted by the Magistrate on the ground that on account of the delay as no useful purpose would be served if the other part of the sample is sent to the Central Food laboratory (Director ). But in the said case the accused never applied for sending the second sample under Section 13 (2) of the act and therefore, it was held that the magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the director. But in the said case the accused never applied for sending the second sample under Section 13 (2) of the act and therefore, it was held that the magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the director. In fact, in that case, the Food inspector adduced evidence to show that he has added 8 drops of Formalin though the rules require adding 16 drops to each part. There was no evidence before the magistrate that for the reason that the prescribed quantity of Formalin was not added to each part, the part of the sample delivered to the vendor was incapable of being analysed by the Director. There was no evidence to show that the part of the sample available with the Court or the vendor had deteriorated at the time summons was served as incapable of being analysed. As no prejudice said to have been caused to the accused was established or proved the accused was found guilty. ( 29 ) THE case of Babulal v. State of gujarat, ARI 1971 SC 1277, also relates to the milk food product. As the rules requires adding preservatives for the milk product in the said case also preservative was added and the sample was found adulterated and an opportunity was afforded to the accused for sending the second sample to the director, Central Food Laboratory. The opportunity was not availed by the accused under Section 13 (2) of the Act and therefore, it cannot be said that prejudice has been caused to the accused. In fact, in the case of Municipal corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 , an opportunity was availed and when the sample was sent to the director, Central Food Laboratory, at the instance of the accused, the Director reported that the sample had become highly decomposed and could not be analysed. Therefore, the principle laid down in the said case has no application as in all other cases it was consistently held by the supreme Court that where no opportunity was availed to exercise the right under section 13 (2) of the Act it cannot be said that prejudice has been caused. Therefore, the principle laid down in the said case has no application as in all other cases it was consistently held by the supreme Court that where no opportunity was availed to exercise the right under section 13 (2) of the Act it cannot be said that prejudice has been caused. ( 30 ) THEREFORE, the contention of the learned senior Counsel for the petitioners that the other parts of the sample available with the Court are not fit for analysis cannot be accepted as in none of the instant cases no preservative is required to be added under the Rules and the petitioners themselves are liable to be blamed as they have not availed the statutory right of sending the sample to the director, CFL, but, on the other hand, they have approached this Court and obtained interim stay of further proceedings. ( 31 ) IN the case of Sukamal Gupta v. Corporation of Calcutta, 1948 - 1997 FAC (SC) 265, the Supreme Court distinguished the Ghisa Ram s case (supra) wherein the valuable right to have the sample given to the accused for analyzing the same by the director of the Central Food Laboratory was availed but the reason why the conviction cannot be sustained is that the accused is prejudiced in his defense and the sample was found to be highly decomposed but in the Sukamal s case no prejudice of the defense has been shown and it had not been established that the sample had deteriorated by the time the summons was received by the accused. In the absence of any evidence to show that the sample deteriorated by the time the summons was received and the fact that the right under Section 13 (2) of the Act was never utilized for sending the sample to the Director of Central Food Laboratory it cannot be said that prejudice has been caused. ( 32 ) IT is relevant to place reliance on the judgment of the Supreme Court in the case of Bhagwan Das v. Delhi administration, AIR 1975 SC 1309 , wherein a joint a trial was launched in respect of the food product of ghee. The vendor took the plea of defence under Section 19 (2) of the act. Both the main supplier and the distributor were tried jointly. The vendor took the plea of defence under Section 19 (2) of the act. Both the main supplier and the distributor were tried jointly. The question arose whether the joint trial of the vendor, distributor and the manufacturer for the offences under the provisions of the Act is illegal. That question was answered stating that if there is unity of purpose between the manufacturer, distributor, vendor and the adulterated article of food sold, all of them come within the meaning of sellers and section 19 of the Act does not require that a warranty should be separately prosecuted only after the vendor had successfully established that he can rely upon the warranty covered under Section 19 (2) of the Act; that, as both the vendor and his warrantor could get an adequate opportunity to prove their cases in a trial for sale of an adulterated article under the Act, no right of an accused person, either in law or justice, was jeopardized by such a joint trial; that, in any event a person accused of such an offence under the Act "can always insist that a co-accused should be discharged or acquitted on the ground that he wants to examine him as a witness"; that Section 19 (3) of the Act confers a right upon the vendor and not upon the warrantor; that, no interests of an accused persons were prejudicially affected in the case by a joint trial of the vendor and the distributor. Para 12, which is relevant, is extracted as follows:"we are not impressed by the argument that a distributor could only prosecuted for selling without giving a warranty to a vendor which is a separate offence under section 14 of the Act. It is clear from section 14 itself that a manufacturer as well as a distributor can sell. The definition of "sale", given in Section 2, sub-section (xiii) of the act, is wide enough to include every kind of seller. Every seller can be prosecuted of an offence created by Section 7 of the act which prohibits a sale as well as distribution of an adulterated article of food. The definition of "sale", given in Section 2, sub-section (xiii) of the act, is wide enough to include every kind of seller. Every seller can be prosecuted of an offence created by Section 7 of the act which prohibits a sale as well as distribution of an adulterated article of food. The mere fact that, for the purposes of section 14, the person who could be the last seller, in the sense that he sells to the actual consumer, is described as "the vendor", could not affect a liability for an offence under Section 7 of the Act of a sale of article of food which is found to be adulterated. A sale of an article of food by a "manufacturer, distributor, or dealer" is a distinct and separable offence. Section 14 of the Act was not meant to carve out an exemption in favour of a distributor or manufacturer who sells articles of food, found to be adulterated, irrespective of the question whether any warranty was given for them. It is true that the manufacture of an adulterated article of food for sale is also an offence under Section 7 of the Act. But, neither Section 7 nor Section 14 of Act bars trial of several offences by the same accused person, be he a manufacturer a distributor, or a last seller, referred to as "the vendor" in Section 14 of the Act. " ( 33 ) AS can be seen from the above para the selling of food product without warranty itself is an offence under Section 14 of the Act. If the manufacturer, distributor or dealer is entitled to sell the food product, every seller can be prosecuted of an offence created by Section 7 of the Act which prohibits the sale as well as distribution of adulterated article of the food. The mere fact that, for the purposes of Section 14, the person who could be the last seller, in the sense that he sells to the actual consumer, is described as the vendor could not affect a liability for an offence under Section 7 of the Act of a sale of article of food which is found to be adulterated. The mere fact that, for the purposes of Section 14, the person who could be the last seller, in the sense that he sells to the actual consumer, is described as the vendor could not affect a liability for an offence under Section 7 of the Act of a sale of article of food which is found to be adulterated. Section 14 of the Act was not meant to carve out an exemption in favour of a distributor or manufacturer who sells articles of food, found to be adulterated, irrespective of the question whether any warranty was given for them. Neither section 7 nor Section 14 of Act bars trial of several offences by the same accused person, be he a manufacturer a distributor, or a last seller. ( 34 ) IN view of the aforesaid ruling of the Supreme Court the contention of the learned senior Counsel for the petitioners that the joint trial is illegal and unsustainable cannot be accepted as the product that is sold is in a sealed bottle and there is no evidence to show that the said product did not belong to the manufacturer distributor or dealer. ( 35 ) ACCORDINGLY, I am of the opinion that in all these cases the manufacturers, distributors, dealers or retail seller are all sufficiently connected in the case of adulterated beverage to be tried jointly. There is no conflicting defence among the accused in all these case. All the accused are either to be convicted or acquitted on the main defense that the said food article is not adulterated, unless any of them blames the other taking certain defences in the joint trial. ( 36 ) THE further contention of the learned senior Counsel for the petitioners that there is no evidence to implicate the manufacturer, distributor or dealer either under Section 14 of 14a of the Act cannot be accepted without there being any trial and on the other hand, the charge-sheets go to show that the food inspectors have examined the vendors, collected the particulars and necessary steps have been taken to implicate the manufacturers, distributors or dealers by securing their names, addresses and other particulars and that is one o the reasons that caused the delay in launching the prosecution. Therefore, it cannot be said that the prosecution is launched merely on the label of the bottle. Therefore, it cannot be said that the prosecution is launched merely on the label of the bottle. ( 37 ) THE learned senior Counsel for the petitioners heavily relied on the Unique far maid s case (supra ). The said case arose under the Insecticides Act, 1968. The act is to regulate the import, manufacture, sale, storage, transport, distribution and use of insecticides with a view to prevent the risk to human beings or animals, and for matters connected therewith. By reason of spurious insecticides there would be risk to the agricultural operations etc. but the risk is not to human health. However, there is clear distinction with regard to the time limit, manner and method of sending and getting the report of the insecticides analysis and the report relating to the food under both the Acts. Under Section 24 of the Act the Insecticides Analyst shall analyse the sample within 30 days and deliver the same to Insecticide Inspector, who on receipt of such report deliver one copy of the report to the person from whom the sample was taken. Then that person is entitled to make a request disputing the report of the analyst to send the said sample to Central insecticides Laboratory. The Central insecticides Laboratory s report will be the conclusive evidence. On every insecticides the batch no. manufacturing date, the expiry date will be mentioned as certified by the competent authority. In the said case the insecticides Analyst report was questioned and a request was made for sending the second sample, but that request was not considered and a reply was sent by the insecticides Inspector stating that the court is only competent to get the sample tested from the Central Insecticides laboratory. In those facts and circumstances, it was contended that the Insecticides inspector failed to get the sample tested by the Central Insecticides Laboratory in terms of their request and by the time they were asked to appear in Court, the shelf life of the sample had already expired. They contended that they were deprived of their valuable right of their evidence. The High court found substance in their plea and held that the accused have been deprived of their right under Section 24 of the Act, it was obvious that they were prejudiced and it would be an abuse of the process of the Court for the complaint to proceed further. The High court found substance in their plea and held that the accused have been deprived of their right under Section 24 of the Act, it was obvious that they were prejudiced and it would be an abuse of the process of the Court for the complaint to proceed further. In those circumstances, the supreme Court held that the right of the accused to have the sample tested from the Central Insecticides Laboratory has been lost and by the time the accused reached the Court, the shelf life of the sample had already expired and sending the sample to the Central Insecticides laboratory would have served no purpose. Following the earlier judgments under the insecticides Act, as the procedure laid down under Section 24 of the Act, was not followed, the Supreme Court held that the accused have been deprived of their valuable right and accordingly upheld the order of the High Court quashing the criminal complaint. Some of the cases cited in the above case relates to the Drugs and cosmetics Act, 1940. ( 38 ) A careful reading of the facts of the said case goes to show that the request of the accused to adduce evidence in support of their contention to get the sample analysed by the Central Insecticides Laboratory as per the provisions of Section 24 of the act, was not considered by the Insecticides inspector. ( 39 ) IN all the instant cases no request as such has been made by any of the accused. The judgments of this Court in crl. P. Nos. 1396, 1397, 2725 of 2002 and crl. P. Nos. 4654 and 4908 of 2003 also go to show that no such request has been made by any of accused therein to send the second sample bottle to the CFL and there was a report of the Public Analyst to show that the samples were adulterated and no evidence was adduced as to how the prejudice was caused to them. Therefore, i am of the opinion that as the aforesaid judgments of the Apex Court have not been cited and in those circumstances the aforesaid cases were allowed. In view of the aforesaid judgments of the Supreme court, I am unable to follow the said judgments of this Court, as the law laid down by the Supreme Court is binding. Therefore, i am of the opinion that as the aforesaid judgments of the Apex Court have not been cited and in those circumstances the aforesaid cases were allowed. In view of the aforesaid judgments of the Supreme court, I am unable to follow the said judgments of this Court, as the law laid down by the Supreme Court is binding. The judgments under the Drugs and Cosmetics act also have no application with regard to the cases relating to the adulteration of food under the Act. ( 40 ) FOR the aforesaid reasons I am of the opinion that there are reports against the petitioners/accused to show that the food article manufactured, distributed, sold by the dealers and vendors are found adulterated under various provisions of Section 2 (i) (a) of the Act and therefore the complaint was rightly lodged for joint trial of manufacturers, distributors or dealers as they are liable to be punished for the offences under Section 7 of the Act punishable under Section 16 (l) (a) of the act. As already stated manufacturer, distributor or dealer of any article of food sells the same without any warranty they are also liable to be punished under Section 14 of the Act. In all these cases, no prosecution has been launched under Section 14 of the Act but the prosecution has been launched for adulteration of said beverage under Section 7 of the Act punishable under Section 16 of the Act. There are no any conflicting pleas among the accused and therefore, the prosecution was rightly launched and cognizance was rightly taken under Section 20 of the Act. If there is no evidence to implicate the manufacturer, distributor or dealer at the inception then it may not be just and proper to add them as Section 20a provides to prosecute them also if during the course of the trial any evidence is found against them. Therefore, I do not see any illegality for the joint trial of all the accused in all these cases. ( 41 ) THE contention of the learned senior counsel for the petitioners that in the absence of any warranty, bill, cash memorandum etc. Therefore, I do not see any illegality for the joint trial of all the accused in all these cases. ( 41 ) THE contention of the learned senior counsel for the petitioners that in the absence of any warranty, bill, cash memorandum etc. , and on the mere disclosure of the vendor, the manufacturer, distributor or dealer cannot be implicated in a joint trial also cannot be accepted as it is a matter of evidence whether there was any material, information or any warranty or not. The other contention that the beverages require preservatives to be added and in the absence of any preservatives, the food article is not fit for analysis after expiry of the best before dated also cannot be accepted as the shelf life as certified under the Insecticides Act is different from that of the best before under the Prevention of Food Adulteration Act. Even according to the petitioners it is not their case that the said food article is not fit for human consumption. According to Rule 32 (1) of the Rules read with explanation VIII (i) 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 that date the food may still be perfectly satisfactory, which means the best before date only signifies that the said food article contains specific qualities in all circumstances of any whether; cold, dry or rainy weather. Therefore, there is no prohibition for human consumption even after the best before, if that be so, the only question that arises for consideration is as to whether the said food article is adulterated or not. ( 42 ) WITHOUT adducing any evidence and without availing the opportunity under section 13 (2) of the Act for sending the second sample to the Central Food laboratory it cannot be said that the shell life of the said food article has expired. The said rule prescribing best before is not mandatory to make use of the said food item before the date of the best before, but it is only recommendatory or directory. The best before is only a guaranteed period for carrying specific qualities in all weathers for that particular period. The said rule prescribing best before is not mandatory to make use of the said food item before the date of the best before, but it is only recommendatory or directory. The best before is only a guaranteed period for carrying specific qualities in all weathers for that particular period. Therefore, it cannot be said that the shelf life of the said beverages have been expired. ( 43 ) IN view of the aforesaid facts and circumstances, I do not see any merits in any of the criminal petitions to quash the proceedings in the calendar cases on the ground that prejudice has been caused to the petitioners/accused for the delay in filing the complaints and in having joint trial of all the petitioners. Therefore, it cannot be said that there is an abuse of process of law. It is left open to the accused to file discharge application if there is any material to prove that the prosecution launched against them is nothing but an abuse of process of law. ( 44 ) THE criminal petitions accordingly dismissed.