PFA – HC Orissa @ Cuttack – Ravi Kumar Sahukar Vs State – Adulterated Thumps Up – April-27-2018

                                                       HIGH COURT OF ORISSA, CUTTACK
CRLMC No.1969 of 2005 In the matter of an application under Section 482 Code of Criminal Procedure, 1973.
      Ravi Kumar Sahukar                                  .........                Petitioner

                                                Versus

      State of Orissa                                     .........               Opp. Party

            For Petitioner            : Mr.Debasish Panda

            For Opp. Party            : Mr.P.K.Mohanty
                                        Additional Standing Counsel

                                                 .........
      PRESENT:
                        THE HON'BLE DR. JUSTICE D.P.CHOUDHURY

Date of hearing:27.03.2018 :

Date of judgment:27.04.2018

This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “the Code”) to quash the order dated 17.9.2003 of taking cognizance of offence under Section 16(1A) read with Sections 7 & 2 (ia)(e)(l) of the Prevention of Food Adulteration Act, 1954 (hereinafter called as “the Act”) passed by the learned S.D.J.M., Parlakhemundi in the district of Gajapati in Case No.II(C) CC.04/2003 and issuance of process against the present petitioner.

2. The factual matrix leading to the case of the prosecution is that on 12.08.2003, while the Food Inspector, Gajapati visited the business point of the petitioner, he found the present petitioner and two others were selling beverages to the public for consumption. Suspecting the Thums-Up beverage to be adulterated, the Food Inspector, observing the formalities, purchased the beverages (3 X 600 ml) on payment of due consideration and sent the same, as sample, to the Public Analyst, Orissa for chemical examination. After receiving the report from the Public Analyst, Orissa through Chief District Medical Officer, Gajapati, it was found that said beverage was adulterated due to presence of bacteria and not fit for human consumption. Thereafter, the Food Inspector placed the matter before the sanctioning authority and after due sanction, the prosecution report was filed basing on which, cognizance of the offences was taken and process issued. Hence, the CRLMC.

3. Mr.Debasish Panda, learned counsel for the petitioner submitted that after the PR is filed, the cognizance of the offences is taken and notice has been issued to the petitioner. On 18.9.2003, the C.D.M.O, Gajapati sent an intimation under Section 13(2) of the Act along with the report of the Public Analyst, Orissa to the petitioner to make an application under Section 13(2) of the Act before the learned S.D.J.M., Parlakhemundi to get the sample re-analysed by the Director of Central Food Laboratory, Mysore within ten days from the date of receipt of that letter, if they so desire. According to him, Section 13(2) of the Act conveys right to the accused to get the sample examined by the Central Food Laboratory and such report of the Central Food Laboratory supersedes the report of the Public Analyst, Orissa. According to him, the provision under Section 13 is indefeasible right of the accused.

4. Mr.Panda, learned counsel for the petitioner further submitted that after receiving the notice, the petitioner immediately applied for examination of another sample of purchased beverage to send it to the Central Food Laboratory, Mysore and accordingly, the same were sent by the Court. But, the report came back without examination of the same with an intimation that the State of Orissa comes within the jurisdiction of the Central Food Laboratory, Kolkata. Accordingly, the samples should be sent to the Central Food Laboratory, Kolkata. In fact, the steps were taken by the petitioner to send the sample to Central Food Laboratory, Kolkata but the report from Kolkata is not received in next two years as per the endorsement in the order-sheet of the Court.

5. Mr.Panda, learned counsel for the petitioner further submitted that any beverage has got a life span of two years but it can be used best before expiry of six months from the date of manufacturing. Since the report of the Central Food Laboratory, Kolkata did not reach within two years from the date of manufacturing or best used before six months or till 18.8.2005 when the case is filed, there is no use of examination of second sample by the Central Food Laboratory as in the meantime the said sample must have been unfit for consumption being contaminated would render incorrect report. Since the right of the petitioner has not been addressed within the life time of the seized beverage, the impugned order of taking cognizance of the offences or proceeding thereon is abuse of process of Court because by virtue of such proceeding, the indefeasible statutory right of the petitioner becomes defeated.

6. Mr.P.K.Mohanty, learned Additional Standing Counsel for the State submitted that sending of the sample to be analyzed at Central Food Laboratory, Mysore was mistake of fact at the instance of the Food Inspector but at the same time, the delay occurred to send the same to the Central Food Laboratory, Kolkata at the instance of the present petitioner also. When the petitioner seeks enforcement of his right, he must come with clean hand. Since the petitioner took step in late hour, the material was sent to Central Food Laboratory, Kolkata in delay and accordingly report was not received within six months from the date of manufacturing. Although Section 13(2) of the Act is a statutory right of the accused but the contribution to the delay at the instance of the petitioner should not be lost sight off and for that, the contention of learned counsel for the petitioner has no merit.

7. Considered the submission of the learned counsel for the respective parties. The question of law is crystal clear. For better appreciation, Section 13 of the Act is placed below for reference:

“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 the 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:

(2-A) When an application is made to the court under sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition.

(2-B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause

(b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. (2-C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court:

Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B). (2-D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution.

(2-E) If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.

(3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2B) shall supersede the report given by the public analyst under sub-section (1).

(4) Where a certificate obtained from the Director of the Central Food Laboratory under sub-section (2B) is produced in any proceeding under this Act, or under sections 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis. (5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code (45 of 1860):

[Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1A) of section 16 shall be final and conclusive evidence of the facts stated therein. Explanation.–In this section, and in clause (f) of sub-section (l) of section 16, “Director of the Central Food Laboratory” shall include the officer for the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section.”

8. In view of the aforesaid provision of law, different Courts have rendered different decisions highlighting the right of the accused accrued thereunder. The Hon’ble Supreme Court in the case of Municipal Corporation of Delhi -V- Ghisa Ram; 1975 (I) FAC 186, at paragraph- 7, have observed in the following manner:

“7.It appears to us that when a valuable right is conferred by s. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right 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, we think that 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.”

With due regard to the aforesaid decision, it is clear that the report of the Central Food Laboratory, being a conclusive evidence, must be given due importance and it is an indefeasible right of the accused to send the same to the Central Food Laboratory for conclusive proof.

9. It is reported in the case of Girishbhai Dahyabhai Shah -V- C.C.Jani and another; (2009) 15 SCC 64, where Their Lordships, at paragraphs-8 and 9, have observed in the following manner:

“8.It will be apparent from the above, that only on 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 10 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.

9.In other words, in the instant case, the appellant was prevented from applying for analysis of the second sample before 17th July, 1989, by which time the second sample of curd had deteriorated and was not capable of being analysed as was found in the case of Ghisa Ram (supra) referred to above.”

With due regard to the above decision, it is clear that the opportunity should be given to the accused to get the sample of adulterated food to be examined by the Central Food Laboratory under Section 13(2)of the Act within the period of validity. On the other hand, in the earliest opportunity immediately after the appearance of the accused, he should be allowed to exercise indefeasible right. Said view has also been followed by this Court in the case of Nestle India Limited -V- A.K.Chand, Food Inspector, Kalahandi and another; 1996 (1) FAC 304, where His Lordship, at paragraphs-7, 8 and 9, has observed in the following manner:

“7.Section 13(2) of the Act Confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst’s report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. The apex Court held so in Municipal Corporation of Delhi v: Ghisa Ram : 1975 (I) FAC 186. Delay in such cases plainly comes to the fescue of the accused. On the other Hand, if the sample continues to remain for analysis in spite of the delay, the accused is certainly not prejudiced notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterer tribe from the net of law. The liability in law is absolute with mandatory sentence but the conviction dependant on sophisticated chemical tests, compliance with rigorous requirements to ensure fair trial to the accused. Section 13(2) aims to provide that safety valve to him.

8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the apex Court in State of Tamilnadu v. Shanmugham Chettiar and Ors. : 1980 (2) FAC 187; Dhadu Behera v. Puri Municipality and Another, 1992(1) FAC 101; and Chamurulal Agarwala v. State of Orissa; 1992 (1) FAC 173, no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis. The determinative factor would be the nature of commodity.

9. The case at hand has some peculiar features. The Cerelac Wheat Appeal (Batch No. USAE 1) was manufactured in August, 1992. The package contained a declaration that- the Cerelac would be fit for consumption within 9 months from the date of manufacture’. The outer limit would therefore extend to end of May, 1993 (by excluding the month August, 1992 from computation). Sample was collected on 18-9-1992, analysed by the Public Analyst on 13-10-1992, and report of the Public Analyst was received by the Food Inspector on 4.11.92. Prosecution report was prepared on 4-9-1993, and complaint was instituted in the Court of SDJM, Bhawanipatna on 10.9.93. Since the report itself was prepared and complaint lodged long after the period of fitness of consumption as indicated in the sample packet itself, analysis by the Central Food Laboratory, even if a request had been made therefore would have yielded no fruitful result. Taking into consideration, the nature of the commodity, I am inclined to hold that petitioner’s valuable right conferred under Section 13(2) of the Act has been prejudicially affected and the continuance of the proceeding would serve no useful purpose.”

With due respect to the above decision, it also appears that the right accrued to the accused under Section 13(2) of the Act must be exercised within time, particularly taking the nature of the food into consideration because after expiry of the food in question, the valuable right of the accused gets diluted and the purpose of proceeding against him would be not in the interest of justice.

10. In the instant case, the following events, as per LCR, will bring out a clear picture.

Admittedly, the Food Inspector visited the business premises of the petitioner on 12.08.2003 and on 15.9.2003, the sanction order was issued by the C.D.M.O., Gajapati to prosecute the petitioner because of selling the adulterated food beverages. The PR was filed on 08.09.2003 by the Food Inspector and on 17.09.2003, learned Magistrate took cognizance of the offences and issued summon to the accused to appear on 10.11.2003. Annexure-3 shows that on 18.9.2003, the C.D.M.O., Gajapati issued intimation under Section 13(2) of the Act to the petitioner asking him to exercise his right to get the sample examined by the Director, Central Food Laboratory, Mysore within ten days from the date of receipt of that letter, if he so desire. Actually on 21.10.2003, a petition was filed by the present petitioner before the learned Magistrate and the same was allowed at the cost of the petitioner to send the sample to Central Food Laboratory, Mysore. Accordingly, learned trial Court asked the local health authority to send the sample. On 27.10.2003, the petitioner deposited money to send the sample to the Director, Central Food Laboratory, Kolkata but surprisingly, the local health authority sent the sample to Mysore. On 4.11.2003, the Director, Central Food Laboratory, Mysore returned the sample and requested to send the sample to the Central Food Laboratory, Kolkata as the jurisdiction of CFL, Mysore has been changed. Again learned Court below asked the petitioner to deposit a sum of Rs.1000/- (rupees one thousand only) for sending the sample to Kolkata

– 10 –

fixing the case to 14.05.2004. Thereafter, the sample was sent to Kolkata but no intimation was received till 25.06.2005.

11. From the aforesaid events, it is clear that from the date of manufacturing, already six months passed. No doubt, the beverages are normally kept for best use for six months from the date of manufacturing. The instant CRLMC was filed on 18.08.2005 after waiting for two years, but no report was received from the Central Food Laboratory, Kolkata. Thus, the report when not received after examination by the Central Food Laboratory, Kolkata either within six months from the date of manufacturing or within two years, the purpose of sending the sample in the event of exercise of right under Section 13(2) of the Act get frustrated. Therefore, keeping in mind the decisions of the Hon’ble Supreme Court and this Court and the facts and circumstances of the case, this Court is of the view that the indefeasible right of the petitioner has been violated by not making availability of said statutory right of the petitioner on time. The matter would have been otherwise if at all the petitioner had got any role to frustrate the provisions of law, but it appears that he had applied for sending the sample to Central Food Laboratory, Kolkata but the local health authority has sent the sample to the Central Food Laboratory, Mysore and after six months from the date of purchase of the sample by the Food Inspector, the same was sent to Kolkata but that report also did not see the day till filing of this CRLMC under Section 482 of the Code. So, it is reiterated that the unfettered right of the petitioner under Section 13(2) of the Act has been totally violated and as such any proceeding

– 11 –

further will be an abuse of process of Court. Hence, the impugned order of taking cognizance including issuance of process and the proceeding vide Case No.II(C)C.C.04/2003 pending in the Court of the learned S.D.J.M., Parlakhemundi in the district of Gajapati are quashed.

The CRLMC is disposed of accordingly.

The LCR along with a copy of this judgment be sent immediately to the learned trial Court.

Dr.D.P.Choudhury,J.

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