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2007 DIGILAW 1025 (AP)

Radheshyam Lohiya v. State of A. P. , rep. By Public Prosecutor, High Court of A. P. , Hyderabad

2007-10-16

G.V.SEETHAPATHY

body2007
Judgment :- This petition is filed under section 482 Cr.P.C. by the petitioners-A2 & A3 seeking to quash the proceedings against them in CC No.174 of 2005 on the file of the Judicial Magistrate of First Class, Nagarkurnool. 2. The first petititioner-A.2 is said to be the Managing Director of 2nd petitioner-A.3 company. The brief facts of the case are that on 18.7.2001 the Food Inspector visited the Kirana shop of first accused for inspection and first accused was present at that time and during the investigation, the Inspector found 20 packets of Gold Drop Vanaspasti Lohiya Brand each containing 500 ML and A.1 failed to produce purchase bill and the packet containing the label of M/s Lohiya Vanaspathi Pvt. Ltd. and the Food Inspector purchased three sample packets duly following the procedure prescribed and sent one of the packets for analysis on 19.7.2001 to the Public Analyst and the Public Analyst in his report dated 24.8.2001 opined that the sample does not conform to red units in respect of Sesame oil and is therefore adulterated. On 21.8.2002 the Food Inspector received written consent from the Director of Food (Health) Authority for prosecution and subsequently filed a complaint on 27.8.2003. The learned Magistrate has taken the same on file as CC No.174 of 2005 for the offence under Section 7(i)& 2(ia)(m) r/w Section 16(1)(a)(i) of Prevention of Food Adulteration Act (For short 'the Act'). The present application is filed seeking to quash the proceedings against the petitioners-A.2 & A.3 in CC No.174 of 2005. 3. Arguments of the learned counsel for the petitioners and the learned Public Prosecutor for the respondents are heard. Records are perused. 4. The main contentions of the petitioners are two fold. Firstly, they contended that as A.1 failed to produce the bill, there is no record to show that the petitioners are the manufacturers of the product and simply because the label on the packet contains the name of petitioners-A.2 and A.3, they cannot be prosecuted. Records are perused. 4. The main contentions of the petitioners are two fold. Firstly, they contended that as A.1 failed to produce the bill, there is no record to show that the petitioners are the manufacturers of the product and simply because the label on the packet contains the name of petitioners-A.2 and A.3, they cannot be prosecuted. Secondly, the petitioners contend that under Section 13 (2) of the Act, it is mandatory on the part of the Food Inspector to serve notice within ten days of filing of the complaint informing them to make an application to the Court for getting sample analyzed by the Central Food Laboratory and no such notice was served on the petitioners and therefore, the valuable right conferred under Section 13(2) of the Act is lost. 5. According to the respondents, as the label on the packets contains the names of the petitioners-A.2 and A.3, they proceeded against them. 6. Section 14-A of the Act states as follows: "Vendor to disclose the name, etc. of the person from whom the article of food was purchased: Every vendor of an article of food shall, if so required, disclose to the food inspector the name, address and other particulars of the person from whom he purchased the article of food." 7. A perusal of the above provision shows that every vendor of an article of food shall disclose to the Food Inspector the name and other particulars of the person from whom he purchased the article of food. In 'Mathew Xavior and another vs. State of A.P., Crl.P.No.269/2003 dated 16.3.2006', this Court held that 'the name of the manufacturer, supplier, marketing agency found on the label cannot form the basis for prosecuting them and taking into consideration that there is nothing on record other than the label connecting concerned petitioners with the product, the proceedings are liable to be quashed'. The same view was reiterated in 'T.Srihari Ltd. & others Vs. State of A.P., 2006(2) ALT (Crl.) 459 (AP). 8. In the present case also except label obtaining on the sample packets containing the names of the petitioners-A.2 and A.3, there is absolutely no other record to show that the 2nd petitioner-A.3 represented by first petitioner-A.2 was the manufacturer of the product, inasmuch as, A.1 has admittedly failed to produce the purchase bills. 8. In the present case also except label obtaining on the sample packets containing the names of the petitioners-A.2 and A.3, there is absolutely no other record to show that the 2nd petitioner-A.3 represented by first petitioner-A.2 was the manufacturer of the product, inasmuch as, A.1 has admittedly failed to produce the purchase bills. In the absence of any such documents like purchase bills, receipts or invoice etc., no liability can be fastened on the petitioners-A.2 and A.3, merely because their names appears on the label of the seized sample packets in the light of the decisions cited supra. 9. The other contention raised by the petitioners is that no notice was served on them as per Section 13(2) of the Act and thereby their valuable right to seek permission of the Court to send the sample for re-analysis by Central Food Laboratory is denied to them. In 'Naresh Kumar Kedia V. Director, Institute of Preventive Medicine and others 2006 (1) FAC 104, the proceedings are quashed when the prosecution was launched with a delay of nearly one year eight months on the ground of valuable right of the accused has been denied because of the delay. In 'Konda Suryanarayana and others Vs. State of A.P., 2006 (1) FAC 157, the proceedings were quashed observing that no useful purpose would be served by sending the sample for analysis after lapse of two years nine months. In 'Vinod Namviar, Regional Sales Manager (Foods) & others vs. State of A.P., rep. By Food Inspector 2006 (1) FAC 235, the proceedings were quashed when there was a delay of 27 months in launching the complaint. In 'Neghraj V. The State (Delhi Administration) & Another 1980 (2) FAC 191, it was held that 'there is no justification for launching the prosecution with a delay of two years after a sample was taken and after obtaining the report of the Public Analyst.' 10. It is not disputed that no such notice under Section 13(2) of the Act was served on the petitioners after filing of the complaint. The sample was taken on 18.7.2001 and it was sent for analysis to the Public Analyst on 19.7.2001. The report of the Public Analyst was received on 25.8.2001. It is not disputed that no such notice under Section 13(2) of the Act was served on the petitioners after filing of the complaint. The sample was taken on 18.7.2001 and it was sent for analysis to the Public Analyst on 19.7.2001. The report of the Public Analyst was received on 25.8.2001. Almost one year later on 21.8.2002, the Food Inspector stated to have received written consent from the Director and Food (Health) Authority and one year thereafter on 27.8.2003, the present complaint is filed. There is absolutely no reason or explanation furnished as to why the Food Authority has taken almost one year for according written consent and why there was further delay of one year in filing the complaint by the Food Inspector. 11. In the present case, apart from the unexplained and inordinate delay in producing the samples before the Court, there has been no service of notice within the prescribed period under Section 13(2) of the Act on petitioners-A.2 and A.3 and as such, the petitioners are deprived of their valuable right to make a request to the Court for getting the sample re-analyzed by Central Food Laboratory. The petitioners have thus established both the grounds urged by them for quashing the proceedings in CC No.174 of 2005 on the file of the Judicial Magistrate of First Class-Special Mobile Court, Nagarkurnool and accordingly, further proceedings against the petitioners-A.2 & A.3 are quashed. 12. In the result, the criminal petition is allowed quashing the proceedings against the petitioners-A.2 & A.3 in CC No.174 of 2005 on the file of the Judicial Magistrate of First Class-Special Mobile Court, Nagarkurnool.