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Andhra High Court · body

2006 DIGILAW 449 (AP)

Rahul Awasthi v. State of A. P.

2006-03-29

M.VENKATESWARA REDDY

body2006
ORDER Petitioners, who are A-1 and A-2 in C.C.No.169 of 2002, on the file of the VII Metropolitan Magistrate, Visakhapatnam, are seeking quashing of the proceedings in the said C.C., on the following grounds viz., I. There is inordinate delay in causing service of notice under Section 13(2) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'), thereby denying opportunity to the accused to get the sample sent to the Central Food laboratory for analysis; and II. The copy of the report of the result of the analysis is not delivered to the accused within a period of 10 days after the institution of prosecution. 2. The facts that are necessary for disposal of the present case are as under: A-2 is the manufacture of soft drinks i.e., Coca Cola. A-1 is nominee for purpose of Section 17 of the Act. On 26-09-2000, the Food Inspector, Division-I, Visakhapatnam, visited the factory of Hindustan Coca Cola Beverages Private Limited, Manchukonda Gardens, Visakhapatnam. He found 348 creoils of each 24 x 300 ml sealed bottles having label declaration i.e., Coca Cola (Coke) sealed FPO No.2922 Mfd on 13-09-2000 by Cork having Hindustan Coca-Cola Beverages Pvt. Ltd., 37-05-89 Manchukonda Garden, Visakhapatnam-530 007, and 4,298 creoils 5 x 24 bottles x 300 ml labelled as Limca Mfd on 29-09-2000 and cap having said Mfd address. He purchased six bottles of Coca Cola under a receipt, duly sealed them, following the due procedure laid down under law. On 27-09-2000, he sent the sealed container of one part of the sample to the Public Analyst, Hyderabad and two sealed containers of remaining sample to the Local (Health) Authority, as required under the provisions of the Act. The Analyst report disclosed that the sample contained moulds beyond the permissible limit and, therefore, it is adulterated. The consent for prosecution was obtained as required under Section 20 of the Act on 25-04-2002. The complaint was filed before the learned Magistrate on 27-06-2002. Notice as contemplated under Section 13(2) of the Act was sent on 17-07-2002. The Public Analyst Report was received by the Food Inspector on 18-12-2000. It can be seen from the above dates that the complaint was filed one year six months nine days after receipt of the report of the Public Analyst by the Food Inspector. Notice as contemplated under Section 13(2) of the Act was sent on 17-07-2002. The Public Analyst Report was received by the Food Inspector on 18-12-2000. It can be seen from the above dates that the complaint was filed one year six months nine days after receipt of the report of the Public Analyst by the Food Inspector. In the light of the above facts, now, I shall deal with the two points urged before me. Ground No.1 3. Some products contain expiry date and they become unfit for human consumption after the expiry period. 4. Section 13(2) of the Act confers a right on the accused to get the sample of the article of Food kept by the Local (Healthy) Authority analyzed by the Central Food Laboratory. For profit of appreciation, subsection (2) of the said Section is extracted below: “On receipt of the report of the result of the analysis under sub-section (1) to the effect 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 the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis 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 ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory." 5. When the accused was not provided with an opportunity of making an application to the Court to get the sample of article of food kept by the Local (Health), Authority analyzed by the Central Food Laboratory, he will be losing a valid defence or right of defence on the basis of the result of the analysis carried out by the Central Food Laboratory. Some times the Central Laboratory may differ with the analysis report of the Public Analyst. Some times the Central Laboratory may differ with the analysis report of the Public Analyst. When such valuable right of the accused is defeated, by filing the complaint after the expiry of the food, lot of injustice will be occasioned to the accused. 6. This Court and the Supreme Court held in a number of decisions that the accused in such case would be entitled for acquittal. One such case cited before me is the decision of the Supreme Court in Nebh Raj. Appellant v. The state (Delhi Administration) and another. Respondents, AIR 1981 SC 611 . The learned counsel for the petitioner places reliance on it and contends that this is a fit case for quashing the proceedings in the C.C. But the facts of that case are that sample of Dal Biji was analyzed by the Central Food Laboratory three years after the sample was taken. Report showed 42.2% of "free fatty acid as oleic acid" as against the permissible .25%. In those circumstances, the Court took the view that with the passage of time there is possibility of increase of fatty acid due to oxidation in storage and gave the benefit to the accused. It is in that context their Lordships observed at the fag end of the judgment as under: "we desire to add that there was no justification whatever for launching the prosecution more than two years after the sample was taken and after obtaining the report of the Public Analyst. To launch a prosecution at such a belated stage may result in causing harassment to the accused in some cases and may also result in genuine offenders escaping punishment. We are unable to see why simple cases under the Prevention of Food Adulteration Act should be launched so late. Tardiness in these matters is in excusable." 7. It is in the context of the delay resulting in the increase of percentage of fatty acids and as there was a delay of two years in filing the complaint, the above observations were made. The learned counsel for the petitioner laying emphasis on the above observation contends that there is a delay of about one year six months in filing the complaint after the public analyst report was received and, therefore, the proceedings before the Magistrate may be quashed. It is well settled principle of law that each case must be decided on its own facts. It is well settled principle of law that each case must be decided on its own facts. The above decision has no application for another reason also which I shall be dealing with later during the course of this order. The dealer in the case before their Lordships is a petty shop owner. Indeed, for a petty shop owner inordinate delay in launching the prosecution amounts harassment. In the case on hand, the accused is a big corporate body, which can fight litigation. The passage relied upon by the learned counsel for the petitioner, in my humble opinion, cannot be called in aid by the petitioner, in the facts and circumstances of the case. 8. The learned counsel for the petitioner brought to my attention another ruling of the Supreme Court in State of Haryana v. Unique Farmaid (P) Ltd. and other, (1999) 8 SCC 190 . It was a case where insecticide sample was taken and the shelf life of the insecticide expired by the time the accused was summoned by the Court to stand trial and he was deprived of the opportunity of getting the samples sent to the Central Insecticide Laboratory. This case has no application for the reasons mentioned below, so also the decision first cited (Nebh Raj's case). 9. The article of food from which the sample is taken is Coca Cola, which has no expiry date, but best before period is given on the bottle admittedly. The meaning of the word 'best before' is given in Explanation VIII of Rule 32(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 the date the food may still be perfectly satisfactory." 10. It can be seen from the above meaning given to the word 'best before' the food will still be perfectly satisfactory even after the best before period is over. It is still consumable unlike the food articles where after the expiry time is over they become useless or even poisonous for consumption affecting the health of the consumer. This distinction must be borne in mind while appreciating the facts of this case. It is still consumable unlike the food articles where after the expiry time is over they become useless or even poisonous for consumption affecting the health of the consumer. This distinction must be borne in mind while appreciating the facts of this case. In the first case cited supra, with the passage of time the free fatty acid content went up. In the latter case, it was the insecticide, which is bound to expire with the passage of limited time. Thus, both the decisions referred to supra have no application. 11. It is not brought to my choice as to what are the specific qualities the product is likely to lose with the passage of time rendering it unfit for consumption nor I am expected to make a roving inquiry into that aspect. It is the province of the trial Court if this point is raised. 12. The learned counsel for the petitioner has brought to my choice a decision of this Court rendered by a learned Single Judge in Crl. P.No.1031 of 2003, dated 08-03-2006. It was a case where a sample of green label coffee blended with chicory was taken from a container on which best before period is given as 9 months from the date of packing. It appears that the learned Single Judge relying upon the second cited decision above quashed the proceedings. It may be pointed out that the article of food there was the green label coffee and in the case on hand it is Coca Cola, a soft drink, both used as drinks. I had already dealt with the distinction between the date of expiry and best before period. This aspect was not adverted to by my learned brother. For the foregoing reasons, I am not able to accede to the contention of the learned counsel for the petitioner. Ground No. II: 13. I had already dealt with the distinction between the date of expiry and best before period. This aspect was not adverted to by my learned brother. For the foregoing reasons, I am not able to accede to the contention of the learned counsel for the petitioner. Ground No. II: 13. Rule No.9B reads as follows:- "Local (health) authority to send report to person concerned:- The Local (health) Authority shall (within a period of ten days) after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14A of the Act: Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under subsection (2), or no action is intended under sub-section (2E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under Section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst." 14. Thus, the Rule lays down that the copy of the report of the analyst shall be forwarded within 10 days after the institution of the prosecution. As already noted, the complaint was filed in this case on 27-06-2002, while the public analyst report was forwarded to the accused with date 17-07-2002 (date of dispatch is not made available). Thus there is a delay of 10 days in sending the report to the accused. The learned counsel for the petitioner frankly conceded that this Rule is held to be directory in The Food Inspector, Div-III, Warangal... Appellant v. Balde Ramuloo... respondent, 2004 (2) L.S. 107 . Apart from holding that the Rule is directory; the Court held that the authorities concerned must remember that even directory rules are meant to be observed and substantially complied with. But that observation was made while dealing with the problem in an appeal, not in a criminal petition underSection.482 Cr.PC. Appellant v. Balde Ramuloo... respondent, 2004 (2) L.S. 107 . Apart from holding that the Rule is directory; the Court held that the authorities concerned must remember that even directory rules are meant to be observed and substantially complied with. But that observation was made while dealing with the problem in an appeal, not in a criminal petition underSection.482 Cr.PC. I will be transgressing my limits if on that ground the proceedings before the learned Magistrate are quashed when the rule is held to be directory only. Thus, on the second point also, I am not in a position to accede to the contention of the learned counsel for the petitioner. 15. At this juncture while I am closing the dictation of this order, yet another ground is urged by the learned counsel for the petitioner stating that the complaint was filed for violation of Section 2 (ia) (f) of the Act, which is not applicable. Section 2(ia) (f) reads as under: "If the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption." 16. As per the report of the Public Analyst the sample contained moulds beyond the permissible limit. The dictionary (concise oxford) meaning of the word "mould" is as under: "A furry growth of minute fungi occurring typically in moist warm conditions on organic matter - a fungus of this kind." 17. Fungus grows only on a filthy, putrid, rotten or decomposed organic matter. Thus, I repel this contention also. For the foregoing reasons, the petition is liable to be dismissed. 18. In the result, the criminal petition is dismissed.