Heard the learned Senior Counsel, Shri G. S. Chaturvedi, assisted by Shri Samit Gopal, the learned counsel appearing on behalf of complainant, the learned AGA and perused the record.
The instant application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the entire proceeding of criminal complaint case no.300 of 1991, State Vs. Mool Chand & others, pending in the court of Judicial Magistrate First Class, Saidpur, District Ghazipur, under Section 7/16 of Food Adulteration Act, 1954, and to quash the order dated 9.8.1999, whereby the application for claiming discharge moved by the applicants was dismissed while allowing the application no.44-Ga moved by the Food Inspector, for sending the sample to the Central Food Laboratory.
The prosecution case in a nutshell is that the Food Inspector(herein after referred to as the respondent no.2), taken samples of Lipton Golden Tea from the applicant's company on 5.12.1985 and sealed in three packets to be sent for analysis under the Prevention of Food Adulteration Act(herein after referred to as an Act). One sample was sent to the public analyst at Lucknow and the public analyst sent the report on 16.1.1986, declaring the tea as adulterated, stating therein that, "in the sample the quantity of some dust and the dust mixed with hydrochloric is higher than specified limit of maximum 8% and one percent respectively. Along with this in the sample the minute particles of iron to the tune of 320 part in per lac is also present". On the basis of the aforesaid report a complaint was filed against the applicants on 27.7.1987. The applicants were informed as provided under Rule 9A of the Act to move an application before the court of Special Magistrate, Saidpur, within ten days of the receipt of the letter for sending the sample to be examined by Director, Central Food Laboratory, Calcutta. The applicant no.2 on 22.8.1987 within ten days from the receipt of the notice moved an application under Section 13(2) of the Act, which was allowed by the court on the same day and passed the order for calling the sample from the Chief Medical Officer. The State Government, instead of sending the second sample before the court preferred a revision before the Sessions Court on the ground that the order has been passed without giving any opportunity of hearing. Ultimately, the revision was dismissed on 5.8.1999. The sample was received after twelve years before the court on 7.6.1991 but it could not be sent to the Central Food Laboratory as the prescribed fee was not deposited by the State. Without passing any order about the sample, the trial court passed the order under Section 244 Cr.P.C., hence the applicants moved an application under Section 245(2) Cr.P.C. that the valuable rights of the applicants for not getting the sample examined by the Central Food Laboratory, has been curtailed, hence they are entitled to be discharged. The State filed the objection that the sample was not sent as it was not traceable and it was traced out on 27.4.1998, even then the sample was not sent, and on 8.2.1999 an application was moved by the respondent no.2 for sending the sample to the Central Food Laboratory, Calcutta. The objection was filed by the applicants on 8.2.1999, that twelve years have been lapsed from the date of producing the sample in the court, now sending the sample would be a futile exercise as the tea leaves are perishable item and cannot be said to remained in the same texture and condition when the sample was taken. The said objection was rejected by the court below. The applicant again filed objection on 15.3.1999, the respondent no.2 filed a counter objection which was rejected by the court below by allowing the application of the respondent.
It is urged by the learned counsel for the applicant, that the prosecution of the applicant is contrary to the mandatory provision of the Act. Sub clause (1) and (2) of Section 13 of the Act reads as under :-
13.Report of public analyst.-(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.
(2). 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 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 analysed by the Central Food Laboratory.
It is thus apparent from the aforesaid provision, that only on the receipt of the report of the public analyst under sub section (1) to the effect that the article of food is adulterated, can a prosecution be launched, and a copy of the report could be supplied to the accused. Sub section 2 also indicates that on receipt of the report the accused could, if he so desired, 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 article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. In other words, in the instant case, the applicants were prevented for analysis of the second sample and it could not be analysed, therefore, now any further examination of such sample is meaningless as it could not have retain quality and texture of the tea, and it would have attracted fungus discolouration and deficiency in taste if boiled in water, therefore, continuance of the proceeding would be an abuse of the process of court.
Per contra, the learned counsel appearing on behalf of State, while admitting this fact that the sample could not be sent to the Central Food Laboratory by the trial court due to inadvertence, has vehemently argued, that in respect of the sending the sample to the Central Food Laboratory the applicants were not in favour to re-analyse the sample. The applicants have tried their level best to linger on the case by taking several adjournments for which the prosecution cannot be blamed and the proceedings cannot be quashed, by virtue of the order passed by this Court, whereby further proceeding was stayed, hence, sending of the sample could not be possible. The applicants cannot get benefit of pendency of the petition before this Court, therefore, the petition lacks merit and deserve to be dismissed.
I have considered the rival submissions advanced by the learned counsels for the parties.
There is no dispute that the sample of tea, in respect of which the complaint was filed, was collected on 5.12.1985 and after receiving report of the public analyst on 16.1.986, the complaint was filed after about eighteen months on 27.7.1987. According to the sub-section 2 of the Section 13 of the Act, on receipt of the report an application has to be moved within a period of ten days from the date of receipt of the copy of the report to get the sample of article of food kept be sent for analysis by the Central Food Laboratory, but the second sample was not sent to the Central Food Laboratory. Now twenty seven years have been elapsed and in the absence of the second report the proceeding against the applicants, merely on the report of the public analyst would be in contravention of the requirement of the law. The quality of sample would have deteriorated, as it could not retain its original quality even after twenty seven years from the date of collecting the sample, which is also accepted by the court below in its order, hence any further examination of such a sample would be a futile exercise.
In view of the matter, this Court see no reason to continue with the proceedings which have been lasted for about twenty seven years in the absence of any valid and reliable report with regard to the second sample.
Accordingly, the instant petition is allowed and the order passed by the court below is set aside and the proceeding being complaint case no.300 of 1991, pending before the court below is hereby quashed.
Office is directed to send back the lower court record before the trial court in a sealed cover forthwith.
Order Date :- 01/6/2012.
Mustaqeem.