Court fines two for supplying milk without licence

CHANDIGARH:
The Chandigarh district court on Monday made two persons stand till the rising of court and also imposed a fine of Rs 20,000 each on them for supplying milk without a valid licence.
The court of chief judicial magistrate convicted dairy owner Avtar Singh and his employee Karam Raj, who were challaned by a food inspector during a drive.
The matter dates back to November 15, 2016, when a food safety officer did a surprise checking of Milk Colony and found Karam Raj supplying milk in a maxi truck .When the food safety officer asked for the licence to supply milk, Karam Raj expressed his inability to do the same. The accused further informed the officer that he worked at Chawla Dairy and was supplyong milk from there. Later, the food an safety officer prepared a spot memo and challaned both accused for selling the aforesaid food articles for human consumption without having a valid license under the Food Safety & Standards Act, 2006.
It was argued by the accused that that they had been falsely implicated and no sample was taken during the time of inspection. However, the prosecution stated that the accused were challaned for sale of food articles without having food license and there was no requirement for taking sample of the food article as sought to be contended by defence counsel. After hearing arguments from both sides, the court convicted the two accused and made him stand till the rising of court.
Advertisements

PFA – HC of MP @ Indore – Pepsico India Holdings Vs UOI – Adulterated Mirinda case – 31 May 2018

M.Cr.C.No. 28080/2017 M/s. Pepsico India Holdings Pvt. Ltd. Vs. Union of India



         High Court of Madhya Pradesh: Bench at Indore
         Single Bench: Hon'ble Shri S.K. Awasthi, J
                  M.Cr.C. No. 28080/2017
             M/s. Pepsico India Holdings Pvt. Ltd.
                              vs.
                       Union of India
------------------------------------------------------------------
           Shri S.C. Bagadiya, learned Senior Counsel
 with Shri Pankaj Bagadiya, learned counsel for the
 applicant.
           Shri H.Y. Mehta, learned counsel for the
 respondent/Union of India.
 ---------------------------------------------------------------------------
                               ORDER
                     ( Passed on       31st May, 2018)
          The     applicant      has       invoked    the    extraordinary
jurisdiction under Section          482 of the Criminal ProcedureCode, 1973 (for brevity the Cr.P.C.) for quashingthe

proceedings of Criminal Case No. 770/2012 pending before the Court of Judicial Magistrate First Class, Nagda, District- Ujjain for the offence punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954 (for short the Act).

2. The facts which are relevant for deciding the present petition are that on 24/11/2008, at about 14:50 p.m. Food Inspector Shri Omprakash Rathore alongwith his assistant Laxman boarded the train No. 2904 Swarn Mandir Mail, from Kota Junction. In discharge of his duties he carried out an inspection of pantry car no. 968064 and taken samples of “Mirinda Orange Flavour sweetned Carbonated Water” he M.Cr.C.No. 28080/2017 M/s. Pepsico India Holdings Pvt. Ltd. Vs. Union of India purchased 3 bottles of said product. Later on the samples were sealed and sent for testing by Public Analyst, Bhopala. According to the report of the Public Analyst, the samples were found to be adulterated.

3. Upon receiving the report of the Public Analyst, the Food Inspector after taking proper sanction of prosecution filed a complaint against Amitabh Agrawal, Pantry Car Manager of Train No. 2094, vendor of the sample food article of M/s. R.K. Associates, Rakesh Kumar Mishra, Nominee of M.S. R.K. Associates and Mr. Prasoon Joshi Nominee of applicant’s Company, i.e. Pepsico India Holdings Pvt. Ltd., Mumbai, who is the manufacturer of the sample food articles. The Court below after examining the record and upon finding substance in the complaint made by the Food Inspector proceeded to take cognizance against the present applicant for commission of adultration.

4. Learned counsel for the applicant submits that the respondent prior to filing of the present petition before Judicial Magistrate First Class, Nagda District-Ujjain, had filed complaint before the Special Railway Magistrate (First Class) at Ratlam on 17/03/2010, which vide an order dated 28/03/2012 was returned to the respondent for lack of jurisdiction and filed before the competent Court of jurisdiction. As per prosecution sample is found to be adulterated, however, reading of the report of anlyst makes it M.Cr.C.No. 28080/2017 M/s. Pepsico India Holdings Pvt. Ltd. Vs. Union of India clear that the Public Analyst has merely seen extraneous matter and no chemical analysis of the product was done by the Public Analyst, in absence of which the report of Public Analyst has no value in the eyes of law. The packing date of the sample is 13/11/2018 and the sample of the product was taken by the respondent on 24/11/2008, the sample was analyzed by the Public Analyst between 06/12/2008 to 15/12/2008; whereas the complaint was filed earlier on 17/03/2010 before Special Railway Magistrate (First Class) Ratlam, wherein the notice under Section 13(2) of PFA was allegedly given to the petitioner/accused company on 18/03/2010. However, the product in question went outside its shelf life of three months in 13/02/2009 and thus on 17/03/2010, when complaint was filed the sample was 13 months over its best before date, therefore the right of the petitioner company to get the sample of the product re- analyzed was vitiated. Thus, the delay in filing of the complaint by the respondent in the present case as result in complete denial of the right available to the applicant under Section 13(2) of the Act, 1954 to request for re-examination of the sample from the Central Food Laboratory, which causes irreperable damage and prejudice to the defence of the applicant/ company. Under these circumstances he prayed for quashment of the proceedings and process issued against the applicant in Criminal Case No. 770/2012, pending before the Court of Judicial Magistrate First Class, Nagda, District-

M.Cr.C.No. 28080/2017 M/s. Pepsico India Holdings Pvt. Ltd. Vs. Union of India Ujjain.

5 Per contra learned counsel for the respondent opposed the application by contending that the allegation made in the petition against the applicant can only be decided after appreciation of material available on record before the trial Court. There is no ground is made out in favour of the applicant for quashing the proceedings pending before the Court of Judicial Magistrate First Class, Nagda, District- Ujjain. Hence, he prayed for rejection of the petition.

6. Having considered the arguments advanced by the learned counsel for the Parties and perused the record.

7. It has borne out from the record that the present applicant is the manufacturer of the sample food articles and it is alleged to have committed adulteration under the provision of the Act, 1954. I find force in the arguments advanced by the Senior Counsel for the applicant that shelf life of the “Mirinda Orange Flavour sweetned Carbonated Water” had lapsed prior to filing of the complaint before the competent Court, therefore, this Court has no hesitation in observing that the defence of the present applicant would be severly prejudiced if the right available under Section 13(2) of the Act of 1954 is taken away.

8. In the case of M/s. R. Jagdish Tea Company Vs. State of M.P. (M.Cr.C. No. 2414/2011) decided on 04/02/2015, Udaibhan Singh and others Vs.State of M.P.

M.Cr.C.No. 28080/2017 M/s. Pepsico India Holdings Pvt. Ltd. Vs. Union of India (M.Cr.C. No. 4296/2012) decided on 05/02/2015, ITC Limited Vs. State of M.P., (2013) 1 FAC 96 and Mohd. Batiulla Vs. State of M.P., 2012 (I) MPJR 362, it has been held by this Court that infringement of the valuable right under Section 13 (2) of the Act 1954 by filing the complaint long after out of expiry of samples thereby frustrated the right of the applicant to go for a second testing, complaint liable to be quashed under Section 482 of the Cr.P.C.

9. In the present case, the panchname prepared by the Food Inspector shows that on the packing of product of which sample has been taken it has been mentioned that it is best before 3 months from the date of packing, thus, it is clear that after almost 3 ½ years from the date of sampling complaint has been filed on 09/08/2012 and the applicant has been deprived of his right of second testing, as the products were expired much before the date of filing of this complaint, therefore, considering the judgments cited above, the proceedings pending against the applicant before the trial Court are liable to be quashed.

10. Resultantly, the present petition is allowed and impugned order dated 09/08/2012 passed by learned Judicial Magistrate First Class, Nagda, District-Ujjain is hereby set aside and the proceedings and process issued against the petitioner alone in Criminal Case No. 770/2012, pending before the Court of Judicial Magistrate First Class, Nagda M.Cr.C.No. 28080/2017 M/s. Pepsico India Holdings Pvt. Ltd. Vs. Union of India District-Ujjain and the cognizance taken under Sections 7(i), 7(2)(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 is hereby quashed.

11. Let a copy of this order be sent to the trial Court for necessary compliance and information.

(S.K. Awasthi) Judge skt Digitally signed by Santosh Kumar Tiwari Date: 2018.05.31 12:56:46 +05’30’

PFA – HC Jammu – Misbranded JUICY FUN case

                    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

25. 06. 2008 issued process against the petitioner (accused) for proceeding against him for commission of offence under section 7/16 of the Act.

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)

Judge Jammu:

17.05.2018

PIL on Food Safety Act

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.

PFA – HC of MP @ Gwalior – CRP – N.P.Sahu Vs State of MP – Gram Dal adulterated case – May-3-2018

                 HIGH COURT OF MADHYA PRADESH
                        BENCH GWALIOR
SINGLE BENCH:
              HON'BLE SHRI JUSTICE G.S. AHLUWALIA
               Criminal Revision No.303/2008
.........Applicant:                 Narayan Prasad Sahu
                                    Versus
.......Respondent :                State of M.P.
----------------------------------------------------------------------
Shri M.K. Jain, Counsel for the applicant.
Shri BPS Chauhan, Public Prosecutor for the respondent/State.
----------------------------------------------------------------------
Date of hearing                     : 26/04/2018
Date of Judgment                    : 03/05/2018
Whether approved for reporting :
                              ORDER

(03/05/2018) This criminal revision under Section 397/401 of Cr.P.C. has been filed against the judgment dated 22.04.2008 passed by 2nd Additional Sessions Judge (Fast Track Court), Ganjbasoda, District Vidisha in Criminal Appeal No.199/2007 thereby affirming the judgment and sentence dated 12.10.2007 passed by JMFC, Ganjbasoda, District Vidisha in Criminal Case No.382/2007. The applicant has been convicted and sentenced for an offence under Sections 7(i)7(v) read with Section 16(1) (a) (i) (ii) of the Prevention of Food Adulteration Act and the applicant has been sentenced to undergo the rigorous imprisonment of six months and a fine of Rs.10000/- for an offence under Section 16(1) (a) (i) (ii) of the Prevention of Food Adulteration Act.

The necessary facts for the disposal of the present revision in short are that on 16.1.2002 in the weekly market, the Food Inspector Ram Singh carried out the inspection and the applicant was running a grocery shop. After introducing himself, the Food Inspector, asked for the license but the same was not made available by the applicant. The Gram Dal was purchased by the Food Inspector after making payment of Rs.18/- @ of Rs.24/- per Kg. Three samples of 250 Gms. each of Gram Daal were prepared. The said Gram Daal was sent for Public Analyst and in the report, the said Daal was found to be adulterated. After issuing a notice under Section 13(2) of the Prevention of Food Adulteration Act, a complaint was filed.

The Trial Court after recording the evidence and hearing both the parties, convicted the applicant for offence under Sections 7(i)7(v) read with Section 16(1) (a) (i) (ii) of the Prevention of Food Adulteration Act and sentenced him to undergo the rigorous imprisonment of six months and a fine of Rs.1000/-. The appeal filed by the applicant was also dismissed.

Challenging the judgments passed by the Courts below, it is submitted by the counsel for the applicant that the mandatory provision of Section 13(2) of the Prevention of Food Adulteration Act was not followed. The report of the Public Analyst was not supplied to the applicant, as a result of which his valuable right for getting the sample re-tested was taken away causing serious prejudice to the applicant. It is further submitted that it is well established principle of law that non- compliance of Section 13(2) of the Prevention of Food Adulteration Act is fatal to the prosecution case. In the alternative, it is submitted by the counsel for the applicant that the incident took place in the year 2002 and the applicant has been sentenced to undergo the rigorous imprisonment of six months. The applicant has already remained in jail for a period of one month and, therefore, the period already undergone is sufficient in the interest of justice.

Per contra, it is submitted by the counsel for the respondent/State that it is incorrect to say that the notice issued to the applicant under Section 13(2) of the Prevention of Food Adulteration Act was never served on the applicant. Exhibit P/30 is the envelope of the registered notice sent to the applicant which was received back by the complainant with an endorsement by the Postman that on 15.6.2002, 17.6.2002, 18.6.2002, 19.6.2002, 20.6.2002 and 21.6.2002, the information was given to the addressee but every time the addressee was not found in his house and accordingly the notice under Section 13(2)of the Prevention of Food Adulteration Act, which was sent to the applicant by registered post, was returned back. Under these circumstances it has to be presumed that the said notice was served upon the applicant and inspite of that, the applicant did not exercise his right of re-testing of the seized Daal and under these circumstances it cannot be said that the mandatory provisions of Section 13(2) of the Prevention of Food Adulteration Act were not followed.

Heard the learned counsel for the parties.

The counsel for the applicant in order to buttress his submissions submitted that non-service of notice under Section 13(2) of the Prevention of Food Adulteration Act is fatal to the prosecution case has relied upon the judgments passed by this Court in the cases of State of M.P. vs. Jaswant Singh passed in Criminal Appeal No.370/2000, Food Inspector, Balaghat vs. Tejlal reported in 1995(I) MPWN 92, Chandrashekhar Sharma vs. Bane Singh reported in 1997(IV) MPHT 168, Vithal vs. State of M.P. reported in 2005 (1) MPHT 10. and Pimpri Chinchwad Nagarpalika vs. Giriraj Chiranjilal Sharmareported in 1998 Crl.L.J. 4354.

The moot question for determination in the present case is that whether non-acceptance of registered notice by the applicant on different dates would amount to non-service of notice under Section 13(2) of the Prevention of Food Adulteration Act or whether it has to be presumed that as the addressee himself has avoided to receive the notice inspite of multiple informations given by the Postman on various dates, therefore, if the applicant did not receive the notice deliberately, then the same can be inferred to be served upon the applicant.

Section 27 of the General Clauses Act, 1897 reads as under:-

“27. Meaning of service by post.- Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or nay other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

Section 114 of Evidence Act reads as under:-

“114. Court may presume existence of certain facts- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

The moot question is that if a pre-paid and properly addressed letter is sent by registered post, then whether it can be held that unless and until it is actually delivered to the addressee, the delivery of the said letter cannot be presumed to have been effected on the addressee? Whenever a letter is sent by registered post, all that a sender can do is to post a properly pre-paid registered address containing the correct address of the addressee. Once the letter is hand over to the Post Office, then the sender loses all his control over the said letter. Now the matter is between the Post Office and the addressee. If the letter is actually refused by the addressee, then there is no difficulty in drawing an inference that the letter was delivered. However, the difficulty would arise when in spite of best efforts made by the Postman, if the addressee succeeds in avoiding the delivery of registered post, then under these circumstances whether the said registered letter can be treated as served or not. In the present case, as per the endorsement made by the Postman, it is clear that on various dates the Postman had given information at the house of the applicant with regard to the registered letter but on all the occasions the applicant was not available in the house. Under these circumstances, the Postman had no option but to return the registered letter back to the sender with a detailed endorsement because under the law the Postman has no authority to compel the addressee to receive the letter.

As per the endorsement made by the Postman on the registered letter Ex.P/30, the Postman had given information at the house of the applicant on 15.6.2002, 17.6.2002, 18.6.2002, 19.6.2002, 20.6.2002 and ultimately on 21.6.2002. After giving an information at the house of the applicant when the applicant was not found at his house, then the registered letter Ex.P/30 was returned back with the following endorsement-

^^ikusokys ds ?kj ij lwpuk nsus ij Hkh ikus okys Mkd okLrs le; ?kj ij ugh feyrs okilA^^ This endorsement can be safely considered to be a refusal on the part of the applicant to accept the registered post.

The Supreme Court in the case of M/s Madan & Co. vs. Wazir Jaivir Chand reported in 1989 (1) SCC 264 has observed as under:-

“6. We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of the tenant.

Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insist that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee’s absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a court under Order V of the CPC. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as “not found”, “not in station”, “addressee has left” and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee’s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him. In this situation, we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the word “served” as “sent by post”, correctly and properly addressed to the tenant, and the word “receipt” as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.”

The registered letter Ex.P/30 was produced before the Trial Court in the sealed condition by the prosecution during trial. As mentioned by the Trial Court in its judgment, the said sealed envelope was opened and it was found that the sealed envelope contained the notice under Section 13 (2) of thePrevention of Food Adulteration Act along with a copy of the Public Analyst. Thus, it is clear that the prosecution has succeeded in establishing that the provisions of Section 13(2) of the Prevention of Food Adulteration Act were complied with and the copy of the report of the Public Analyst was sent to the applicant along with notice under Section 13(2) of the Prevention of Food Adulteration Act and since the applicant himself refused to accept the same, therefore, it can be safely held that the notice under Section 13(2) of the Prevention of Food Adulteration Act was duly served upon the applicant and thus it cannot be said that the mandatory provision of Section 13(2) of the Prevention of Food Adulteration Act was violated. Accordingly, the first submission made by the counsel for the applicant is rejected.

It is next contended by the counsel for the applicant that the incident took place in the year 2002 and 16 years have passed and this revision is pending since 2008 and, therefore, a lenient view may be adopted, and one month detention as already undergone by the applicant may be treated as sufficient to meet the ends of justice.

The submissions made by the counsel for the applicant cannot be accepted for the simple reason that deterrence is one of the important factors of sentencing policy. The applicant has been convicted under Section 16(1) (a) (i) (ii) of the Prevention of Food Adulteration Act and the minimum sentence provided for the said offence is six months which may extend to three years. The Trial Court has already imposed the minimum sentence by adopting a very lenient view. Under these circumstances, the sentence awarded to the applicant cannot be reduced to the period already undergone by him. Consequently, the prayer for reducing the sentence to the period already undergone by the applicant is rejected. Consequently, the applicant is held guilty for committing offence under Section 7(i)7(v) read with Section 16(1) (a) (i)

(ii) of the Prevention of Food Adulteration Act and the sentence of rigorous imprisonment of six months and a fine of Rs.1000/- awarded by the Courts below is hereby affirmed.

Accordingly, the judgment and sentence dated 12.10.2007 passed by JMFC, Ganjbasoda, District Vidisha in Criminal Case No.382/2007 and judgment and sentence dated 22.4.2008 passed by 2nd Additional Sessions Judge (Fast Track Court), Ganjbasoda, District Vidisha in Criminal Appeal No.199/2007 are hereby affirmed.

The applicant is on bail. His bail bonds and surety bonds are cancelled with immediate effect. The applicant is directed to surrender before the Trial Court immediately for undergoing the remaining jail sentence.

The revision fails and is hereby dismissed.

                                            (G.S. AHLUWALIA)
                                                 Judge
                                               03/05/2018

                                                   
                                                   

PFA – Supreme Court – Criminal Appeal – Delhi Administration Vs Vidya Gupta – April-24-2018


                              IN THE SUPREME COURT OF INDIA
                             CRIMINAL APPELLATE JURISDICTION


                              Criminal Appeal No.625 of 2018
                        [Arising out of SLP (CRL.) No. 999 of 2015]



         Delhi Administration                                                 ….. Appellant (s)


                                               Versus



         Vidya Gupta                                                       ….. Respondent (s)




                                            JUDGMENT

S.A. BOBDE, J.

1. Leave granted.

2. The accused, a vendor of M/s New Bikaner Sweet Center was in charge of the day to day business of the shop 1. On 08.04.2004 at about 7.00 PM, Food Inspector Shri S.K. Sharma purchased a sample of Ghee, a food article for analysis from the shop of the accused where the said food article was stored for sale.

The sample consisted of approximately 600 gms of Ghee taken from an open tin bearing no label or declaration, after proper mixing Located at M/s New Bikaner Sweet Center, Sl.No. A-9, Tilak Market, Ramesh Nagar, New Delhi- 110015.

with the help of a clean and dry long spoon. The sample was divided into three equal parts and stored separately as per the requirements in three separate clean and dry glass bottles under the supervision and direction of Shri B.M. Jain, SDM/LHA. The vendor’s signature was obtained on the LHA slip and the wrapper of the sample bottles and the Panchnama was prepared on the spot.

One counterpart of the sample 2 was sent to the Public Analyst, Delhi (hereinafter referred to as “PA”), and the other two counterparts were deposited with the LHA. The PA opined that the sample exceeds the maximum Butyro Refractometer (hereinafter referred to as “BR”) reading limit of 43 and has a Reichert value of less than 28. The sample also tested positive for Baudouin Test, which should be negative in case of Ghee. And thus, does not conform to the standard.

Upon summoning, the accused opted to get the second counterpart3 of the sample analyzed by the Director, Central Food Laboratory (hereinafter referred to as “the Director”) under Section 13 (2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”). The report 4 opined that the sample did not conform to the standards of Ghee as per the Act and the charges were framed. The ACMM-II held the accused guilty of the violation of the provisions of Section 2 (ia) (a) (c) & (m) of the Act, Bearing LHA Code No. 93/LHA/7757 Bearing No. 93/LHA/7757 Certificate No.CFL/679/743/2004 dated 20.10.2004  punishable under Section 16 (1) (a), read with Section 7 of the Act and convicted him5. The Sessions Judge set aside the order of the ACMM-II, vide order dated 15.04.2011 and acquitted the accused. Against the order of acquittal, the prosecution applied for leave to appeal under Section 378(1) of the Code of Criminal Procedure. The High Court declined to grant relief6, and hence the present appeal is before us.

3. There are two reasons why the High Court had declined to grant leave to appeal against the judgment of acquittal of the Sessions Court.

(1) First, the sample of Ghee that was taken was itself not meant for sale but it was meant to be used merely as an ingredient in the preparation of sweets which in turn were meant for sale, and therefore no offence is made out under the provisions of Section 2 (ia) (c) & (m) and Section 16 (1)

(a) read with Section 7 of the Act.

(2) Secondly, there was a discrepancy between the report of PA and that of the Director with respect to the BR reading. The PA had recorded the BR reading as 52.7, whereas the Director had recorded the BR reading as 53.1. This variation was 0.76% i.e. more than 0.3%, and therefore the sample cannot be considered as representative in nature Vide order dated 15.04.2011 Vide order 20.12.2013 (CRL. M.A. 19502/2013)  as held in State (Delhi Administration) v. Ram Singh and Another7.

We have carefully considered the provisions of the Act and find no merit in either reason.

Whether the Food was illegally stored

4. Section 7 of the Act prohibits storing of any adulterated food, it is as follows:-

“7. Prohibitions of manufacture, sale, etc., of certain articles of food.—No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute —

(i) any adulterated food;

(ii) any misbranded food;

(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;

(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority [in the interest of public health;]

(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; [or] [(vi) any adulterant.] [Explanation.—For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article of food for sale.]” (2009) 1 FAC 371  This section must be construed according to the rule of interpretation enunciated in Municipal Corporation of Delhi v. Kacheroo Mal8, which also arose under this Act. This Court enunciated the Rule as follows:

“5. The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well- settled that wherever possible, without unreasonable stretching or straining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention…….”

5. This case turns on the above explanation to the section. According to the accused, since the Ghee which was found to be adulterated was not itself meant for sale, but was meant to be used as an ingredient in the sweets that were in turn meant for sale, no offence is made out. The contention in other words is that it was legal to store adulterated Ghee, if the Ghee itself was not meant for sale.

6. The explanation to the section does not support this contention. It clearly lays down that if a person stores any adulterated food for the purpose of manufacturing from it any article of food for sale, he shall be deemed to store adulterated food. The purpose of this provision is clear, it prohibits the storing of adulterated food notwithstanding the (1976) 1 SCC 412  fact that such adulterated food is itself not offered for sale, but is used in making some food which is offered for sale. It is clearly to prevent the adulteration of food and its sale to the public even when it is meant to be used for preparing some other food which is offered for sale. Thus, either way, whether the adulterated food is stored for sale, or if such food is stored for making some other food which is sold, such storing is an offence. Parliament has rightly assumed that no one, who offers food for sale, would store food which is not meant to be used in some food meant for sale.

7. The learned counsel for the accused relied on the judgement of this court in Municipal Corporation of Delhi v. Laxmi Narain Tandon 9. In that case, this Court upheld the decision of a full bench of the Delhi High Court which held that the expression “store” in Section 7 means “storing for sale” and consequently the storing of an adulterated article of food not meant for sale would not constitute an offence under Section 16 1(a). According to the learned counsel, therefore, the High Court was right in maintaining the acquittal of the respondent since the Ghee was found to have been stored not for sale, but for a purpose other than that of sale i.e. for the purpose of preparation of sweets. Though valid when rendered, the decision relied on can no longer govern the point decided. When this Court decided Tandon’s case (supra), the section did not explicitly prohibit the storing of adulterated food which was not meant for sale. This Court, therefore, held that (1976) 1 SCC 546 storing of adulterated food which was not meant for sale was not an offence. Tandon’s case (supra) was decided on 17.12.1975; the amendment which introduced the deeming fiction that a person shall be deemed to store any adulterated food, even if he stores such food for manufacturing from it any article for sale was introduced by Act 34 of 1976 w.e.f. 01.04.1976. Tandon’s case (supra) therefore has no application to the present case.

In the present case, the sample of Ghee that was taken was from the Ghee that was stored for the purpose of making jalebis. On the accused’s own admission, the offence is clearly made out underSection 7 of the Act.

Variation between the reports of Public Analyst and the Director, Central Food Laboratory

8. Section 1310 lays down the procedure by which the report of the PA that an article of food is adulterated is dealt with. In brief the procedure is as follows:-

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.

(2A) 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.

(2B) 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 dispatch 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.

(2C) 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).

(2D) 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.

(2E) 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  When a report, that the article of food is adulterated, is received and a prosecution is instituted, the local health authority is enjoined to forward a copy of the report of such analysis to such person or persons who may have applied for having such food analyzed vide Section 12. Such persons may, if desired, make an application to the Court to have the sample of the article of food analysed by the Director, and the Court may then dispatch a part of the sample received to the Director. The Director shall send a certificate specifying the result of the analysis. Where two parts of the sample have been sent to the Court and one part has been sent by the Court to the Director, the Court is bound to send the remaining part to the local health authority who is 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.] bound to destroy it after a certificate is received from the Director vide sub-section (2C) of Section 13.

9. The law accords such great importance to the report from the Director that it prohibits the Court from continuing with the prosecution until the receipt of the certificate from the Director.

Sub-section 3 of Section 13 clearly attributes a higher evidentiary value to the certificate from the Director when compared to the report given by the PA. It reads as follows:-

“13. Report of public analyst-

(1) .………….

(2) …………… (2A)…………..

(2B)…………..

(2C)…………..

(2D)…………..

(2E)…………..

(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).” The proviso to sub-Section 5provides that the certificate from the Director shall be final and conclusive evidence of the facts stated therein.

The above scheme, particularly sub-Section 3 which provides that the certificate of the Director shall supersede the report of the PA and the proviso which makes such a certificate final and conclusive evidence, puts it beyond any shadow of doubt that the report of the PA loses any significance in the proceedings as a piece of evidence.

10. Therefore, there is no reason for the Court to refer to the contents of the report of the PA. Where there is no reason to refer to its contents of the report of the PA, there is even less reason to refer to the variation between the report of the PA and the Director. The Court is enjoined by law to consider the contents of the certificate of the Director only.

11. Moreover, this view is no more res integra in view of the judgment of this Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf and another11. This Court held as follows:-

“Per majority (Thomas and Quadri, JJ.) When Section 13(3) says that the certificate of Director, CFL shall supersede the report, it means that the report would stand annulled or obliterated. The word “supersede” in law means “obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal”.

Once the certificate of the Director of the Central Food Laboratory reaches the court, the report of the Public Analyst stands displaced and what may remain is only a fossil of it. In the above context the proviso to sub-section (5) of Section 13 can also be looked at which deals with the evidentiary value of such certificate. If a fact is declared by a statute as (1999) 2 SCC 400  final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is the import of Section 4 of the Evidence Act. Thus the legal impact of a certificate of the Director of the Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.”

12. The finding of the High Court that the variation between the two reports was 0.76% and therefore more than 0.3% as permitted in Ram Singh’s case (supra) is completely unsustainable and liable to be set aside. The reliance placed by the High Court on the decisions in Kanshi Nath v. State12 and State v. Mahender Kumar & Ors. 13, which hold that if in the comparison of the reports of the PA and the Director vast variations are found, then the samples are not representative, is improper. Those decisions do not lay down good law.

It is thus clear that the accused was not entitled to the acquittal and the acquittal is liable to be set aside. We, therefore, set aside the acquittal of the respondent and convict him for the offence under Section 2 (ia) (a) (c) & (m) of the Act, punishable under Section 16 (1) (a), read with Section 7 of the Act.

However, the proceedings commenced in the year 2004, the business has closed down since and the accused is now about 70 years 2005 (2) FAC 219 – Delhi High Court 2008 (1) FAC 177 old. In these circumstances, we direct that the sentence shall be confined to the period already undergone.

13. Appeal is allowed accordingly.

….………………………………..J.

[S.A. BOBDE] ….………………………………..J.

[L. NAGESWARA RAO] NEW DELHI APRIL 24, 2018