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2018 DIGILAW 519 (ORI)

Ashok Kumar Khandelwal v. Paramananda Singh

2018-05-07

S.K.SAHOO

body2018
JUDGMENT S. K. SAHOO, J. - In this application under Section 482 of Cr.P.C., the petitioner Ashok Kumar Khandelwal has prayed to quash the criminal proceedings in 2(c) C.C. No.76 of 2005 pending in the Court of learned S.D.J.M., Balasore in which on submission of the prosecution report, cognizance of offences has been taken on 11.07.2005 under Section 16(1)(a)(i) read with Section 2(i-a)(m) and Section 7(i)(iv) of the Prevention of Food Adulteration Act, 1954 (hereafter ‘P.F.A. Act’) and process has been issued against him. The prosecution case, as per the prosecution report submitted by the opposite party no.1 Paramananda Singh, Food Inspector, Balasore Municipality is that on 24.08.2004 at about 11.30 a.m. he along with Ramakrushna Singh, peon, office of the Health Officer, Balasore Municipality visited a grocery shop situated at Port Road, Balasore named and styled as M/s. Shiva Durga Store. At the time of the visit of the complainant, the petitioner was present in the grocery shop and was selling the food articles such as edible oils, vanaspati, pulses, spices, iodized salt, tea (dust), wheat products etc. to the consumers for human consumption. After disclosing his identity to the petitioner, the complainant checked the food licence bearing no.127 of 2004 which was valid upto 31.12.2004. He examined the food articles which were kept in the shop premises for sale for human consumption and suspected that the vanaspati (Dalda), iodized salt (Aashirvaad) and tea dust (Tata) to be adulterated. The complainant called the persons who were in the shop as well as the persons who were at the neighbouring shop to be witnesses but they refused to be witnesses and did not disclose their identities. The complainant asked Ram Krushna Singh who had accompanied him to be a witness and he agreed. The complainant gave a notice to the petitioner in Form No.VI and prepared the inspection report. He purchased 1 kg. 500 grams of vanaspati (Dalda), 600 grams of tea dust (Tata) and 3 kg. of iodized salt (Aashirvaad) from the petitioner on payment of Rs.186/- and the petitioner granted a money receipt to the complainant to that effect. The complainant gave a notice to the petitioner in Form No.VI and prepared the inspection report. He purchased 1 kg. 500 grams of vanaspati (Dalda), 600 grams of tea dust (Tata) and 3 kg. of iodized salt (Aashirvaad) from the petitioner on payment of Rs.186/- and the petitioner granted a money receipt to the complainant to that effect. In presence of the petitioner and the witness, the complainant divided the sample of the food articles purchased into three equal parts separately and each part of the sample was labeled and then completely wrapped with thick paper and the end of the paper was neatly folded in and affixed by means of gum and again labeled on the outer cover. The paper slips bearing the signature of the Local Health Authority -cum- Chief District Medical Officer, Balasore were affixed to the sample packets of vanaspati (Dalda), tea dust (Tata) and iodized salt (Aashirvaad) from bottom to top of the sample packets after sealing the packets properly as per the provisions of the Prevention of Food Adulteration Rules, 1955 (hereafter ‘P.F.A. Rules’). The signatures of the petitioner were taken on the wrapper of all the sample packets overlapping the paper slips. It is the further prosecution case as per the prosecution report that on 25.08.2004 the complainant sent one part of the sealed sample packet from each item with a copy of memorandum in Form No.VII bearing the specimen impression of the seal used to seal the sample in a sealed packet and a separate sealed cover containing the copy of the memorandum in Form No.VII with specimen signature of seal to the Public Analyst to the Government of Orissa, State Public Health Laboratory, Bhubaneswar by special messenger. The Public Analyst, Bhubaneswar granted receipt to that effect. On 24.08.2004 the rest parts of the sealed sample packets with the copy of memorandum were also deposited with the Local Health Authority -cum- Chief District Medical Officer, Balasore. After chemical examination, the sample of Vanaspati (Dalda) was found to be adulterated vide Public Analyst report No. 486 of 2004 dated 29.09.2004 as its quality falls below the prescribed standard vide result no.4 whereas the sample of tea dust (Tata) and iodized salt were found to be up to standard. Mr. After chemical examination, the sample of Vanaspati (Dalda) was found to be adulterated vide Public Analyst report No. 486 of 2004 dated 29.09.2004 as its quality falls below the prescribed standard vide result no.4 whereas the sample of tea dust (Tata) and iodized salt were found to be up to standard. Mr. Sumit Lal, learned counsel appearing for the petitioner emphatically challenging the correctness of the impugned order dated 11.07.2005 as well as the criminal proceeding in 2(c) C.C. No.76 of 2005 contended that when the sample was collected on 24.08.2004 and it was sent to the public analyst on 25.08.2004 and the Public Analyst report was made ready on 29.09.2004, the inordinate delay in launching of the prosecution on 11.07.2005 was not proper and justified. It is further contended that after launching of the prosecution, the petitioner received an intimation (Annexure-5) dated 07.07.2005 from the Local Health Authority –cum- Chief District Medical Officer, Balasore under Section 13(2) of P.F.A. Act wherein it is indicated that if the petitioner so desires, he can make an application before the learned S.D.J.M., Balasore within ten days from the date of receipt of the intimation to get the food sample analyzed by the Central Food Laboratory. It was further intimated that sample of Tata tea (dust) and iodized salt (Aashirvaad) were up to prescribed standard as per Public Analyst report. Learned counsel for the petitioner drew the attention of this Court to Annexure-1 which was the cover note of the Dalda (Aashirvaad) and it reveals the inscription ‘best before six months from packing’. It is contended by Mr. Lal that even if the date of collection of the sample i.e. 24.08.2004 is taken to be the date of manufacturing then also the self-life of stock of Dalda i.e. six months had already expired by the time the petitioner got intimation under Annexure-5 and therefore, no fruitful purpose would have been served in making an application before the concerned Court for sending the sample analyzed by the Central Food Laboratory. It is further contended that due to laches on the part of the prosecution in launching the prosecution after an inordinate delay, a valuable right conferred by the statute has been lost and the petitioner has been deprived of challenging the report of the Public Analyst before Central Food Laboratory and in such a scenario, the continuance of the proceeding would be an abuse of process. The learned counsel for the petitioner further drew the attention of this Court to the public analyst report annexed as Annexure-3 wherein in Colum No.4, it is mentioned that Baudouin test (expressed as read units in a 2 cm. cell on Lovibond scale) is negative and the method of test is ‘DGHS’ and the criteria for conformity used is not lighter 2.0 red units. Learned counsel for the petitioner contended that so far as Vanaspati is concerned, clause A.19 (x) of Appendix B to the P.F.A. Rules indicates that the ‘Vanaspati’ means any refined edible vegetable oil or oils, subjected to a process of hydrogenation in any form and it shall conform to the standards that it shall contain raw or refined sesame (til) oil in sufficient quantity so that when the vanaspati is mixed with refined groundnut oil in the proportion of 20:80, the colour produced by the Baudouin test shall not be lighter than 2.0 red unit in a 1 cm. cell on a lovibond scale. It is contended that even though the statute provides that the measurement has to be taken in a 1 cm. cell on a Lovibond scale but in this case, the measurement has been taken in a 2 cm. cell on a lovibond scale and therefore, no sanctity can be attached to the report given by the Public Analyst. It is further contended by Mr. Lal that the report of Public Analyst under Annexure-3 indicates that DGHS method of analysis was adopted for Baudouin test for obtaining result no.4. It is contended that Section 23 of P.F.A. Act provides that the Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette make rules to carry out the provisions of the Act and Section 23(1A)(hh) of P.F.A. Act indicates that such rules may provide for ‘defining the methods of analysis’. It is contended that Section 23 of P.F.A. Act provides that the Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette make rules to carry out the provisions of the Act and Section 23(1A)(hh) of P.F.A. Act indicates that such rules may provide for ‘defining the methods of analysis’. It is contended that until 25.03.2008, Central Government had not made any rule defining the methods of analysis and in absence of any prescribed method of analysis under Section 23(1A)(hh) of P.F.A. Act, the Public Analyst has resorted to methods which was convenient to him and as such the result of the analysis cannot be accepted as valid. It is contended that the Public Analyst, Orissa under Annexure-3 has adopted Directorate General of Health Services (DGHS) method which is not the prescribed method and therefore, on the basis of such report which is invalid, no prosecution is maintainable. Learned counsel for the petitioner while relying upon the case in Pepsico India Holdings Private Limited -Vrs.- Food Inspector and another reported in (2011) 1 Supreme Court Cases 176 contended that no methods of analysis having been defined under Section 23(1A)(hh) of the P.F.A. Act by the Central Government, the report submitted by the Public Analyst by following whatever method he thought to be appropriate is not valid and correct and cannot be accepted at all even at this stage and therefore, the criminal proceeding should be quashed. Though the complainant-Food Inspector was arrayed as the opposite party no.1 and notice was issued to the opposite party no.1 but nobody appeared on behalf of the opposite party no.1. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate produced a letter dated 03.05.2018 of the Executive Officer, Balasore Municipality wherein it is mentioned that the Food Inspector of Balasore Municipality is under the control of Health Officer, Balasore Municipality who is drawing and disbursement officer and the immediate disciplinary authority and the Executive Officer, Balasore Municipality has no authority to direct or to instruct the Food Inspector in connection to his job assignment. It is further mentioned that soon after receiving the letter from the Advocate General Office, the same was communicated to the Health Officer on 30.04.2018 which has also been received by the Health Officer on the same day and Paramananda Singh, the then Food Inspector was also intimated over phone. It is further mentioned that soon after receiving the letter from the Advocate General Office, the same was communicated to the Health Officer on 30.04.2018 which has also been received by the Health Officer on the same day and Paramananda Singh, the then Food Inspector was also intimated over phone. Learned counsel for the State placed the matter on behalf of the opposite parties and contended that failure of the petitioner to exercise his option in making an application to the Court to get the sample analyzed by the Central Food Laboratory would disentitle him claiming prejudice of denial of right under Section 13(2) of P.F.A. Act. He further contended that there is no illegality in the impugned order and the contentions raised by the learned counsel for the petitioner can be dealt by the learned trial Court at appropriate stage and this Court should not invoke the inherent power to interfere with the same. After going through the prosecution report and the documents annexed to the 482 of Cr.P.C. application, there are some undisputed facts which are as follows:- (i) The sample of the alleged adulterated Vanaspati (Dalda) was collected by the Food Inspector (complainant) on 24.08.2004; (ii) One part of the sealed sample packet was sent to the Public Analyst by the Food Inspector on 25.08.2004; (iii) The Public Analyst prepared his report on 29.09.2004; (iv) The Local Health Authority and Chief District Medical Officer, Balasore gave his written consent under Section 20(1) of the P.F.A. Act on 07.07.2005 for prosecution of the petitioner; (v) The prosecution was launched on 11.07.2005. From the aforesaid chronology of events, it is clear that even though the report of the Public Analyst was made ready on 29.09.2004 and it was submitted along with other necessary documents before the Local Health Authority and Chief District Medical Officer, Balasore for according written consent but the written consent to prosecute the petitioner was given only on 07.07.2005 i.e. after a lapse of nine months. On a plain reading of the written consent which has been annexed as Annexure-4 and the documents submitted with prosecution report, no reason has been ascribed as to why there was such an inordinate delay in giving the written consent. On a plain reading of the written consent which has been annexed as Annexure-4 and the documents submitted with prosecution report, no reason has been ascribed as to why there was such an inordinate delay in giving the written consent. Section 9B of the P.F.A. Rules, 1955 which deals with Local Health Authority to send report to the person concerned, inter alia, indicates that Local Health Authority shall within a period of ten days after the institution of the prosecution, forward a copy of the report of the result of the analysis in Form No.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 P.F.A. Act. After getting the copy of the report, the person concerned 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 Local Health Authority analyzed by the Central Food Laboratory. In this case when the Food Inspector was aware that there would be expiry of the self-life period of the sample collected within six months from the date of packaging, immediate step should have been taken after receipt of the public analyst report for launching the prosecution so that the petitioner gets his valuable right of giving his option getting the sample analyzed by the Central Food Laboratory as prescribed under Section 13(2) of the P.F.A. Act. Since there was inordinate delay in getting the written consent from the Appropriate Authority, the prosecution was launched at a belated stage. 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 delay because accused is in no way prejudiced on the merits of the case on account of such delay. Whether delay has led to the denial of valuable right conferred under Section 13(2) of the P.F.A. Act depends on the facts of each case. Even if intimation was given to the petitioner indicating his valuable right, Mr. Whether delay has led to the denial of valuable right conferred under Section 13(2) of the P.F.A. Act depends on the facts of each case. Even if intimation was given to the petitioner indicating his valuable right, Mr. Lal is right in his submission that at that stage, no fruitful result could have come out by giving the option to get the food sample analyzed by the Central Food Laboratory as by that time the self-life period of the sample had expired. The complainant seems to have ignored the time limit which has been prescribed on the self-life of Dalda Vanaspati. There is every possibility of change of nature of the sample collected after the self-life period and submission of sample for re-analysis by the petitioner would have been a futile exercise. Therefore, I am of the view that the authorities have acted in a callous manner frustrating the valuable right of the petitioner. Mr. Lal is also right that the Baudouin test which has been conducted by the Public Analyst in 2 cm. cell on a Lovibond scale is also not permissible in view of clause A.19 (x) of Appendix B to the P.F.A. Rules. In case of Pepsico India (supra), the Hon’ble Supreme Court framed, inter alia, one issue for consideration which is as follows:- “In the absence of any prescribed and validated method of analysis under Section 23(1A)(hh) of P.F.A. Act, could a prosecution have been launched against the appellants based on a report submitted by the Public Analyst using the method of the Directorate General of Health Services (DGHS)?” The Hon’ble Court answered the issue as follows:- “41. The High Court summarised its view into several grounds of challenge. Grounds 1 and 2 relate to the non-framing of Rules under Section 23(1A)(ee) and (hh) of the 1954 Act..... 42. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the Appellants that in the absence of any prescribed and validated method of analysis under Section 23(1A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. 43. 43. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick-and-choose method to suit the prosecution..... 44. The High Court also misconstrued the provisions of Section 23(1A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing the Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non-formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution. xx xx xx xx xx 47. Both the questions regarding the failure of the Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(i-a)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the Appellants was adulterated in terms of the said Rules.......The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose.....” In view of the law laid down by the Hon’ble Supreme Court in case of Pepsico India (supra), I am in agreement with the contention raised by Mr. Lal that no methods of analysis having been defined under Section 23(1A)(hh) of the P.F.A. Act by the Central Government, the report submitted by the Public Analyst by following DGHS method of analysis was not proper and valid in the eye of law. In view of the foregoing discussions, I am of the humble view that the case is of an exceptional character and the continuance of the criminal proceeding against the petitioner would result in causing grave prejudice to the petitioner and it would amount to abuse of process. In view of the foregoing discussions, I am of the humble view that the case is of an exceptional character and the continuance of the criminal proceeding against the petitioner would result in causing grave prejudice to the petitioner and it would amount to abuse of process. Therefore invoking my inherent power under Section 482 of Cr.P.C., I quash the impugned order dated 11.07.2005 passed by the learned S.D.J.M., Balasore in 2(c) C.C. No.76 of 2005 in taking cognizance of offence under Section 16(1)(a)(i) read with Section 2(i-a)(m) and Section 7(i)(iv) of the P.F.A. Act and issuance of process against the petitioner. Accordingly, the CRLMC application is allowed. CRLMC allowed.