HIGH COURT OF JAMMU AND KASHMIR AT JAMMU 561-A Cr.P.C No. 49/2011 MP No. 47/2011 Date of decision: 17.05.2018 _______________________________________________________________ Om Parkash Sharma Vs. State &ors. ________________________________________________________________ Coram: Hon'ble Mr. Justice Janak Raj Kotwal, Judge. Appearing Counsel: For petitioner(s)/appellant(s) : Mr. Sachin Gupta, Advocate. For Respondent(s) : Mr. Sanjeev Block,
Petitioner invokes the inherent jurisdiction of this Court under section 561-A Cr.P.C. to seek quashing of the complaint under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954, (for short, the Act) filed against him by the Food Inspector, Block, Akhnoor, herein respondent No.2, in the court of the Learned Chief Judicial Magistrate, Jammu as also the order dated 25.06.2008 whereby the learned Magistrate issued process against the petitioner for proceeding against him for the commission of the said offence.
Heard learned counsel for the parties.
Case set out in the impugned complaint is that on 18.06.2007, the complainant, Food Inspector, purchased three sealed bottles of an article of food namely “Pine Apple Juice” with the name and style “JUICY FUN” from the shop of the petitioner and sealed them as per the prescribed procedure for their sample test. On analysis of one of these three samples by the public analyst, the said article of food was found adulterated and misbranded. After obtaining sanction for prosecution from the Local (Health) Authority, the complainant filed the complaint against the petitioner. Learned Magistrate by his order dated
Learned counsel for the petitioner submitted that prosecution of the petitioner is illegal for the reason that the petitioner was not issued notice under section 13 (2) of the Act to enable him to make an application to the court within the prescribed period to get one sample of the said article of food retained by the complainant analyzed by Central Food Laboratory. The petitioner was, thus, deprived of the valuable safeguard provided to him under law and he cannot be validly convicted for the offence alleged to have been committed by him. Learned counsel submitted further that, even if it is presumed that such a notice was issued to the petitioner, the right provided to the petitioner was defeated by the inordinate delay of about one year in filing the complaint in the court as the option of getting the sample analyzed by the Central Food Laboratory could have been exercised by the petitioner only after filing of the complaint and such analysis after a period of one year was meaningless as the article of food in question was usable only within six months from the date of its packing and loses its quality after that. Learned counsel relied upon the Supreme Court judgment in Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970.
Per contra, learned counsel for the respondents submitted that section 13(2) of the Act does not confer indefeasible right on the accused to have the sample analyzed by the Central Food Laboratory and prosecution is not rendered illegal even if notice under section 13(2) is not issued. Learned counsel argued further that whether notice as contemplated under section 13 (2) was issued or not is a question of fact which can be taken up in the course of trial before the trial court and the complaint cannot be quashed on that score alone.
Section 11 of the Act mandates taking and sealing of the sample of any article of food in three parts, sending one part for analysis to the public analyst and the remaining two parts to Local (Health) Authority to be retained inter alia for the purpose of section 13 of the Act. Section 13 (2) of the Act mandates that, after institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and particulars have been disclosed by the vendor as person from whom the said article of food was purchased, the Food Inspector has to send a copy of the report of the result of the analysis given by the public analyst to the persons against him the prosecution has been launched informing them that either he or both of them may make an application to the court within a period of ten days from the date of receipt of copy of the report to get the sample of the article of food retained by the Local (Health) Authority analyzed by the Central Food Laboratory. Sub-section 3 of Section 13 provides that the certificate issued by the Director of the Central Food Laboratory shall supercede the report given by the public analyst. To say precisely and in simple terms, section 13 (2) of the Act imposes a duty on the food inspector to provide copy of the report of the analyst after launching the prosecution to the person against whom the prosecution has been launched and confers a right on such person or persons to get the sample analyzed by the Central Food Laboratory. The report of the Director of the Central Food Laboratory in that case supercedes the report of public analyst relied upon by the food inspector by launching the prosecution.
The impugned complaint would show that the sampling of aforementioned food article was done on 18.06.2007. The analysis was done by the public analyst on 25.06.2007 to 09.07.2007 and report was sent by him to the Local (Health) Authority vide his No. PFA/J/484 dated 17.07. 2007. The sanction for prosecution was accorded by the prosecuting authority on 26.12.2007 and complaint was filed by the Food Inspector on 25.06.2008. It is not denied that the date of packing of the said article of food was May, 2007 and the period of its best use was given as six months from the date of manufacture.
The admitted position, thus, emerging is that even though analysis of the food article was completed and report received in the office of the Local (Health) Authority within two months of the date of sampling, sanction for prosecution was given five months thereafter and the prosecution was launched after another six months.
It is, thus, clear that by causing inordinate delay in launching the prosecution against the petitioner (vendor), the petitioner was deprived of his valuable right under section 13 of the Act to get the sample analyzed from the Central Food Laboratory within the best use period of the article of the food in question as such a right accrues only after the prosecution is launched. Even if it is believed for the sake of argument, that a copy of the report of the public analyst was sent to the petitioner and he was issued notice in terms of section 13(2) in that case also the right of getting the article analyzed by the Central Food Laboratory was rendered meaningless as analysis of the sample after the expiry of the period of its best use could not have served the purpose enshrined in this valuable right of the accused.
Petitioner’s contention that he was deprived of his valuable right under section 13 of the Act, therefore, deserves to be accepted. In Ghisa Ram’s case (supra) in an identical fact situation, the Supreme Court has held as under:
“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 analyzed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner 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 analyzed 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.”
In this case also the action against the petitioner has been vitiated by inordinate delay in launching the prosecution and thereby depriving him of his valuable right under section 13 of the Act.
Viewed thus, this petition has merit and is allowed and the complaint and prosecution against the petitioner are quashed.
(Janak Raj Kotwal)