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2014 DIGILAW 1423 (AP)

R. Hari Hara Reddy v. State of Andhra Pradesh

2014-11-25

M.SEETHARAMA MURTI

body2014
ORDER : M. SEETHARAMA MURTI, J. 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Code') by the petitioners/accused 2 and 3 requesting to quash the proceedings against them in CC No. 405 of 2010 on the file of the Judicial Magistrate of First Class at Madhira, Khammam, taken on file for the offences punishable under Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (for short 'the Act'). I have heard the submissions of the learned Counsel for the petitioners-A2 and A3 and the learned Additional Public Prosecutor. I have perused the material on record. 2. The then Food Inspector, Division-I, Khammam, filed the aforementioned private complaint stating to the following effect: "On 24.4.2009 at about 11.30 a.m., he, along with his staff, had inspected the business premises of the first accused. At that time of inspection they had found 20 sealed terra packets of Visakha Dairy, Good Milk UHT processed Toned Milk. Having suspected that the said tetra packets may not be conforming to the standards and may be adulterated, he had purchased 3 such tetra packets from A1 and had sent one sample to the Public Analyst for analysis and the remaining two samples to the Local (Health) Authority, Warangal. After analysis, the Analyst had furnished his report opining that the sample does not conform to the standard of Yeast & Mould Count and that, therefore, the same is adulterated. Subsequently, the sanction was obtained for prosecuting the first accused from whom the product was purchased, the second accused, who is the Senior Manager and Nominee of M/s. Visakha Milk Producers Company Limited, Visakhapatnam and the third accused, who is the manufacturer of the said adulterated tetra packets. Hence the complaint is filed against all the accused as they had committed the offence punishable under Section 16(1)(a)(i) of the Act." 3. Now the case of the petitioners-A2 and 3 is as follows: "The sample of Milk was lifted on 24.4.2009. The manufacturing date of the milk-the food article is 23.3.2009. As per the admitted case of the complainant, the sample lifted is best for use before 180 days from the date of manufacture. The food article is best for use before 19.9.2009. The analyst's opinion was received on 6.6.2009. The sanction for prosecution was accorded on 15.6.2009. The complaint was belatedly filed on 7.1.2010. As per the admitted case of the complainant, the sample lifted is best for use before 180 days from the date of manufacture. The food article is best for use before 19.9.2009. The analyst's opinion was received on 6.6.2009. The sanction for prosecution was accorded on 15.6.2009. The complaint was belatedly filed on 7.1.2010. A notice under Section 13(2) of the Act was given to the accused on 3.7.2010. Therefore, the accused 2 and 3 are deprived their valuable right under Section 13(2) of the Act to seek permission to send the sample to the Central Food Laboratory for second analysis. Therefore, in view of the mandatory requirements of law and the deprivation of the valuable right of the accused, no useful purpose would be served by continuing the prosecution against the petitioners A2 and A3 and hence, the proceedings in the calendar case against the petitioners herein are liable to be quashed." 4. At the time of hearing, the learned Counsel for the petitioners 2 and 3 had reiterated the pleaded facts and had prayed for quashing of the proceedings. 5. The learned Additional Public Prosecutor having submitted the chronology of events and having read portions of the complaint petition had submitted that because of the delay, no prejudice has been caused to the accused. He had placed reliance on a Division Bench judgment of this Court in Handi Instant Foods, Chennai v. State of AP, 2007 (1) ALD (Crl.) 316 (AP) and had further contended that unless prejudice is shown to have been caused to the accused herein, the proceedings cannot be quashed. 6. In the case on hand, the chronology of events would lay bare that there was inordinate delay not only in the matter of issuance of the statutory notice but also in launching the prosecution against the petitioners A2 and A3. It is not disputed that the sample of the milk/food article was collected from the premises of A1 on 24.4.2009 and it was sent to Public Analyst on the next day, i.e., 25.4.2009. The report of the Public Analyst was received by the Food Inspector on 6.6.2009 to the effect that the sample does not conform to the standard of Yeast & Mould Count and that therefore, the sample was adulterated. The permission for prosecuting was accorded on 31.10.2009. Thereafter, the complaint was filed on 7.1.2010. The report of the Public Analyst was received by the Food Inspector on 6.6.2009 to the effect that the sample does not conform to the standard of Yeast & Mould Count and that therefore, the sample was adulterated. The permission for prosecuting was accorded on 31.10.2009. Thereafter, the complaint was filed on 7.1.2010. Section 11(4) of the Act mandates that an article of food seized under sub-section (4) of Section 10 and any adulterant seized under sub-section (6) of Section 10 shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the Public Analyst. However, the seized sample, admittedly, was not produced before the Court within seven days, as required under sub-section (4) of Section 11 but placed before the Court when the complaint was filed. Thus, there has been a clear violation of the mandatory stipulation contained in Section 11(4) of the Act regarding the production of the remaining samples before the Court. It is also not disputed that the label of the milk packets contains a caution that it is best for use before 180 days, thereby indicating that the contents of the packet would be intact without undergoing any process of degeneration or decomposition for a period of 180 days from the date of manufacture. In the case on hand, the date of manufacture is 23.3.2009. The sample was placed before the Court almost more than eight months after it was taken and almost after seven months from the date of receipt of the report of the Public Analyst. In fact, the material record shows that the Public Analyst had furnished his report on 28.5.2009 alongwith a covering letter to the Local (Health) Authority, Warangal. The inordinate delay in producing the sample before the Court from the date of taking the sample and also from the date of receipt of the report of the Public Analyst would certainly cause prejudice to the accused and such prejudice is naturally detrimental to the case of the accused and inasmuch as there is every likelihood of the food article getting degenerated or decomposed after a period of 180 days. No explanation is forthcoming for the abnormal delay in production of the sample before the Court. 7. No explanation is forthcoming for the abnormal delay in production of the sample before the Court. 7. Now coming to the aspect of delay, in the case of Handi Instant Foods, Chennai v. State of A.P. (supra), relied upon by the learned Additional Public Prosecutor, the question that was referred to the Division Bench was - 'whether the prosecution under the Prevention of Food Adulteration Act can be quashed merely on the ground of delay without there being any prejudice to the accused?' The Division Bench having referred to the ratios in various precedents had held as follows: "It is clear that Section 13(2) of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of a copy of the report of the Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. That would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case, even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay." A reading of the Division Bench decision of this Court would show that delay is per se not fatal to the prosecution case in cases where the sample continues to remain fit for analysis in spite of the delay and when no prejudice is caused to the accused. In the case on hand, the packing label cautions that the content of the packet, i.e., the food article, which is milk, is best for use before 180 days from the date of its manufacture. Section 13(2) of the Act confers a valuable right on the accused. In the case on hand, the packing label cautions that the content of the packet, i.e., the food article, which is milk, is best for use before 180 days from the date of its manufacture. Section 13(2) of the Act confers a valuable right on the accused. Under the said provision the accused can make an application to the Court, within a period of 10 days from the receipt of a copy of the report of the Public Analyst by them, to get the samples of food analysed in the Central Food Laboratory. And, in case the sample is found by the Central Food Laboratory unfit for analysis due to decomposition or degeneration by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right provided under the said provision would stand denied. That would constitute prejudice to the accused entitling him to acquittal. Therefore, in the facts and circumstances of the case, it cannot be said that no prejudice has been caused to the petitioners-A2 and A3 and therefore, the ratio in the Division Bench judgment of this Court is not helpful to the respondent-State. It is common knowledge that the product, being milk, would get purified after the period of expiry mentioned on the label of the packet/the sample. Thus, in the well considered view of the Court, the accused A2 and A3 are, therefore, deprived of their valuable right under Section 13(2) of the Act to seek permission to send the sample for second analysis to the Central Food Laboratory. 8. Thus, in the well considered view of the Court, the accused A2 and A3 are, therefore, deprived of their valuable right under Section 13(2) of the Act to seek permission to send the sample for second analysis to the Central Food Laboratory. 8. In Girishbhai Dahyabhai Shah v. C.C. Jani and another, (2009) 15 SCC 64 ; of the Hon'ble Supreme Court, the facts and ratio are as under: 'A sample of curd was collected on 8.4.1988 and thereafter, there was a delay of 15 months in serving the Public Analyst's Report on the first sample on the accused and that delay lead to the deterioration of the second sample and the accused was prevented from applying for analysis of the second sample before 17.7.1989, i.e., till 15 months after the sample has been collected and that by that time, the second sample of curd had deteriorated and was not fit for being analyzed.' In the light of the above facts, the Hon'ble Supreme Court while setting aside the judgment of the High Court had quashed the proceedings against the accused. 9. In view of the principle laid down in the above decision and in view of the fact that there has been inordinate delay in filing the complaint and thereby, deprivation of valuable right conferred on the accused 2 and 3 under Section 13(2) of the Act and because of the violation of the mandatory requirement under Section 11(4) of the Act, this Court holds that no purpose would be served by continuing the prosecution against the petitioners/A2 and A3. 10. In the result, the criminal petition is allowed and the proceedings in CC No. 405 of 2010 on the file of the Judicial First Class Magistrate at Madhira, Khammam District, against the petitioners/A2 and A3 are quashed. Miscellaneous petitions, if any, pending in this criminal petition shall stand closed.