1. By this petition under Articles 226 and 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the petitioners seek quashing of Criminal Case No.335 of 2007 pending in the court of the learned Judicial Magistrate First Class, Veraval as well as the order dated 4.4.2007 directing registration of the criminal complaint and issuance of process under section 16 read with sections 7(i) and 7(v) and sections 2(i-a)(a) and 2(i- a)(m) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”).
2. The second respondent – Food Inspector lodged a complaint in the Court of the learned Chief Judicial Magistrate, Veraval, inter alia, stating that on 14.6.2005, he had visited the premises of M/s Super Sales Agency and had obtained samples of packed bottles of Laher 7 Up Sweetened Carbonated Water (500 + 100) M.L. after following due procedure in accordance with the provisions of the Act and the rules framed thereunder. On 15.6.2005, a sample of the food item was sent for analysis to the Public Analyst. Vide communication dated 26.7.2005, the report of the public analyst was received by him whereby the public analyst has declared that the sample of the food article is adulterated as it does not comply with the standards laid down under the Prevention of Food Adulteration Rules, 1955. The second respondent, therefore, has lodged the above referred complaint on the ground that the sample of food article is adulterated which is violative of the provisions of section 7(i) and (v) of the Act and is an offence under section 16 of the Act.
3. Mr. Bhadrish Raju, learned advocate for the petitioners drew the attention of the court to the fact that the sample in question was collected on 14.6.2005; the same was sent for analysis to the public analyst on 15.6.2005; the report of the public analyst was received by the second respondent on 26.7.2005; sanction for prosecution was sought for on 4.1.2007; and the same was granted vide order dated 26.3.2007 pursuant to which, the complaint had been lodged and process came to be issued on 4.4.2007. Attention was invited to the report of the Public Analyst to point out that the shelf-life of the food article in question was three months from the date of manufacture. It was submitted that the sample was collected on 14.6.2005 and that by the time the complaint came to be lodged and the report of the Public Analyst was made available to the petitioners, a period of more than eighteen months had elapsed. Attention was invited to the provisions of section 13(2) of the Act, to submit that a valuable right has been conferred on the accused under the said provision whereby, the accused is entitled to make an application to the court within a period of ten days from the date of receipt of a copy of the report of the Public Analyst, for getting the sample of food article analyzed by the Central Food Laboratory. It was submitted that on account of the delay in lodging the complaint and making the report of the Public Analyst available to the petitioners, the petitioners were deprived of their valuable right under sub-section (2) of section 13 of the Act of getting the sample of food article analyzed by the Central Food Laboratory.
4. Reliance was placed upon the decision of this court in the case of Nestle India Limited, through R. K. Rajput, Manager (Sales) v. State of Gujarat, 2010 JX (Guj) 603 wherein, the court by placing reliance upon the decisions of the Supreme Court in the case of Gupta Chemicals (P) Ltd. v. State of Rajasthan, (2010) 7 SCC 735, and in the case of Northern Mineral Ltd. v. Union of India, (2010) 7 SCC 726, had, in the facts of the said case, observed that nearly after four years from the date of collection of sample, the complaint was lodged along with which report of the laboratory was made available. Even if the petitioners wish to dispute the contents thereof and seek further report from the Central Laboratory in terms of sub-section (2) of section 13, the same would be a futile exercise since for a perishable item such as tomato ketchup after four years, there would be deterioration. It was only along with the complaint that the analysis report was made available, before which the petitioners had no opportunity to raise any objection with respect to such findings. Following the above referred decisions of the Supreme Court, the court, therefore, quashed the complaint in question. The learned counsel submitted that in the light of the above referred decisions of the Supreme Court in the case of Gupta Chemicals (P) Ltd. v. State of Rajasthan (supra) and Northern Mineral Ltd. v. Union of India (supra), the complaint in question is required to be quashed.
5. Opposing the petition, Mr. K. P. Raval, learned Additional Public Prosecutor invited attention to the averments made in the affidavit in-reply filed on behalf of the respondent to submit that it was on account of the default on the part of the petitioners that the second respondent could not obtain the necessary details for lodging the complaint in question and as such, the delay having occasioned on account of the default on the part of the petitioners, they cannot raise any grievance that they have been deprived of any valuable right under section 13(2) of the Act. It was submitted that under the circumstances, the petition does not deserve to be entertained and is required to be rejected.
6. The facts are not in dispute inasmuch as, it is evident on a plain reading of the complaint itself, the sample of food article came to be collected on 14.6.2005; the report of the Public Analyst was received on 26.7.2005 and the complaint came to be lodged on or about 4.4.2007, after a delay of about eighteen months from the date of obtaining the sample in question. A perusal of the report of the Public Analyst shows that the shelf-life of the sample of food article was three months from the date of manufacture. From the said report, it is not possible to ascertain the date of manufacture. In any case, considering the fact that the sample was taken on 14.6.2005, even if the said date is taken to be date of manufacture, the shelf-life of the food article would subsist for a period of three months thereafter, that is, 14.9.2005. In the facts of the present case, admittedly, the complaint has been lodged on or about 4.4.2007, which is much after the expiry of the shelf-life of the sample of the food article.
7. At this juncture reference may be made to the decision of the Supreme Court in State of Haryana Vs. Unique Farmaid (P) Ltd, (1999) 8 SCC 195, wherein, in the context of the Insecticides Act, it had been contended that the shelf life of the sample was not relevant as the Insecticides Act does not prescribe any expiry date. The court found no substance in the said contention. It was observed that if the expiry date is not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned.
8. The contention raised on behalf of the petitioners that as the complaint was filed belatedly after a period of about eighteen months, no request for reanalysis could be effectively made as the shelf life expiry date of the sample of the food article had already expired and, as such, no purpose would be served by requesting the court to send the matter for analysis by the Central Food Laboratory also merits acceptance. As held by the Supreme Court in State of Haryana v. Unique Farmaid (P) Ltd (supra), once the shelf life of the sample of food article has expired, no useful purpose would be served by informing the court of an intention to have the sample analysed by the Central Food Laboratory.
9. In the case of Municipal Corporation of Delhi v. Ghisa Ram, (1967) 2 SCR 116, wherein the article of food was curd and there was a delay in lodging the prosecution. When the sample was received by the Director, he reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible. The Supreme Court held that “the right under section 13(2) is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein”.
10. In the aforesaid case, the sample in question was a sample of loose curd which does not bear any label indicating the date of manufacture or best before date. However, in a case like the present one where the article of food bears a “Use before date”, the same bears some significance. Hence, in such a case after the said date it would not be necessary to obtain a certificate of the Central Food Laboratory as to whether or not the food article is capable of analysis. The fact that the shelf life of the food article has expired would be indicative of the fact that the same is no longer capable of analysis.
11. In Gupta Chemicals Private Limited v. State of Rajasthan (supra), the Supreme Court held that due to sheer inaction on the part of the Inspector, it had not been possible for the appellants therein to have the sample examined by the Central Insecticides Laboratory and in the meantime, the shelf life of the sample of insecticide seized, had expired and for that reason no further steps could be taken for its examination and was, accordingly, of the view that continuing the criminal prosecution against the appellant therein would be a futile exercise and abuse of the process of court. In Northern Mineral Limited v. Union of India (supra), the Supreme Court observed that the statute mandates disclosure of expiry date of the insecticide. The form prescribed for submission of the report of the Insecticide Analyst contains columns for the dates of the manufacture and expiry. Insecticides are substances specified in the Schedule to the Insecticides Act and from perusal thereof it is evident that many of the substances with the passage of time lose their identity if exposed or come into contact with other substance. Therefore, there is no escape from the conclusion that the shelf life of an insecticide shall have its bearing when it is tested or analysed in the laboratory. In the said case, the shelf life of the insecticide had expired even prior to the filing of the complaint. The court, accordingly, held that by sheer inaction, the shelf life of the sample of insecticide had expired and for that reason, no step was possible to be taken for its test and analysis by the Central Insecticides Laboratory. It was held that a valuable right of the appellant therein having been defeated, allowing the criminal prosecution against the appellant to continue shall be futile and abuse of the process of the court.
12. This court in an unreported decision in the case of Nestle India Limited v. State of Gujarat rendered on 22.10.2010 in Criminal Miscellaneous Application No.10732 of 2010 was dealing with a case wherein nearly four years from the date of collection of sample, the complaint was lodged along with which the report of the Public Analyst was made available. The court held that even if the petitioners wish to dispute the contents thereof and seek further report from the Central Food Laboratory in terms of sub-section (2) of section 13, the same would be a futile exercise since a perishable item such as tomato ketchup after four years, there would be deterioration. Following the decisions of the Supreme Court in Gupta Chemicals Pvt. Limited (supra) and Northern Minerals Ltd. (supra) the court quashed the proceedings. This decision would be squarely applicable to the facts of the present case.
13. Besides, as observed by the Supreme Court in the above referred decisions, many of the substances with passage of time may lose their identity if exposed or come into contact with other substances and, as such, there is no escape from the conclusion that shelf life of an insecticide shall have its bearing when it is tested or analysed in the laboratory. In case of chemicals and drugs, it would be the efficacy of the chemical or drug that would deteriorate upon expiry of the shelf life, whereas in case of articles of food, they, by their very nature, are perishable and, as such, susceptible to growth of various microorganisms and insects. Under the circumstances, the decision of the Supreme Court in the case of chemicals and drugs would apply with more vigour to food articles. Sending a sample of a food article for analysis after the expiry of the best before period, therefore, would be an exercise in futility.
14. In the light of the aforesaid discussion, the court is of the view that the complaint having been lodged and consequently, the copy of the report of the Public Analyst having been supplied to the petitioners after the expiry of the “Best before” date stated in the label of the sample of the food article, in other words, after the expiry of the shelf life of the sample of the food article, the petitioners has been deprived of its valuable right under sub-section (2) of section 13 of the Act of getting the sample analysed by the Director, Central Food Laboratory and, as such, the continuance of the criminal prosecution against the petitioners, will be futile and an abuse of the process of court.
15. In the light of the aforesaid discussion, the petition succeeds and is, accordingly, allowed. Criminal Case No.335 of 2007 pending in the court of the learned Judicial Magistrate First Class, Veraval as well as the order dated 4.4.2007 directing registration of the criminal complaint and issuance of process, are hereby quashed and set aside, qua the present petitioners. Rule is made absolute accordingly.
[HARSHA DEVANI, J.] parmar*