IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Application No. 3439 of 2006
Decided On: 21.06.2010
Shivkumar alias Shiwalamal Narumal Chugwani Proprietor of Kanhaiya General Stores
Vs.
State of Maharashtra at the instance of Subhash Madhukar Choudhary
[Alongwith Criminal Application Nos. 3440, 3441, 3442, 3443, 3444, 3445 of 2006, 1290 of 2008]
Vs.
State of Maharashtra at the instance of Subhash Madhukar Choudhary
[Alongwith Criminal Application Nos. 3440, 3441, 3442, 3443, 3444, 3445 of 2006, 1290 of 2008]
Hon'ble Judges/Coram:
A.B. Chaudhari, J.
A.B. Chaudhari, J.
1. In these criminal applications, the applicants have put to challenge the order of issuance of process dated 7.1.2004 and the tenability of Regular Criminal Case No. 66 of 2009, so also the tenability of Criminal Case Nos. 393/2000, 81/1999, 31/1999, 5/1999, 18/2000, 463/2007 and 10 of 1999.
2. In view of huge increase in the offences taking place in relation to Prevention of Food Adulteration Act 1954, The Seeds Act 1966, The Insecticides Act 1968 and The Drugs and Cosmetics Act 966 and in the instant cases in relation to Prevention of Food Adulteration Act and having found pitiable condition in relation to the misconceptions, knowledge and skill of the implementing agencies, and taking stock of certain provisions which act as obstacle, ultimately resulting into defeating the very object of the Parliament in framing these laws, I have decided to deal with some of the provisions of these Acts and Rules with a view to throw light on all the above aspects.
3. In Criminal Application Nos. 3439/06, 3440/06, 3442/06 and 3444/06 sample of Kissan mixed fruit jam was collected by the Food Inspector. In Criminal Application No. 3441/06 sample of Rex Pineapple Jam was collected by the Food Inspector. In Criminal Application 3445/06 sample of Anik Ghee was collected by Food Inspector. In Criminal Application No. 1290 of 2008 sample Nutrela Vanaspati was collected by the Food Inspector.
4. In Crim. Appln. No. 3439/06 there is a challenge to the order of issuance of process by the Magistrate so also its tenability while there is a challenge to the tenability of the proceedings in Criminal Complaint Case Nos. 81 of 1999, 31 of 1999 and 10 of 1999. In support of these applications, Mr. Sunil Manor with Mr. A.A. Naik made the following submissions-
(i) In all these cases, complaint was instituted by the Food Inspector after more than a reasonable period which can be counted in years from the date of taking sample and after shelf life of the product and `best before period' had already lapsed and therefore valuable right under Section 13(2) of Prevention of Food Adulteration Act was lost and therefore the prosecution of the applicant or the said prosecution has become worthless.
(ii) The accused/applicant having lost the right to send the sample to Central Food Laboratory, since sending sample after shelf life would have been of no use and therefore the valuable right created by Section 13(2) of the Prevention of Food Adulteration Act having been lost, the prosecution is not maintainable and will have to be dismissed.
(iii) The affidavits filed by the respondent clearly show admission on the part of the respondent about delay in instituting the complaint before the Magistrate and the explanation that is furnished is that the delay was caused due to administrative delay. This socalled administrative delay cannot at all mitigate the valuable right of the accused to have the sample reanalysed/retested from the Central Food Laboratory before the expiry date of the sample.
(iv) The submission by the respondents that though the applicant was informed about the report of Public Analyst, he did not apply for sending the sample to the Central Food Laboratory and therefore he is now estopped from saying so is wholly misconceived. Admittedly, no prosecution was instituted in the Court as required by Section 13(2) of Prevention of Food Adulteration Act and in the absence of any prosecution the question of making application to the Court did not arise.
(v) Mr. Manohar invited by attention to the Circular dated 2.4.1998 issued by Central Food Technological Research Institute, Mysore and argued that this supports his submission that if the sample is sent for analysis to the Central Food Laboratory after three years and that too after the expiry date of the product, it is no use analysing such sample second time by the Central Laboratory. He relied on the following decisions
(a) MANU/SC/0102/1966 : AIR 1967 SC 970 - Municipal Corporation of Delhi v. Ghisa Ram (Para 7, 8 and 9)In the following decisions of various High Courts including this Court it has been held that the sample, if attempted to be sent after or just before expiry date is of no avail and it strikes at the valuable right under Section 13(2) of the Prevention of Food Adulteration Act.
(b) MANU/SC/0645/1999 : (1999) 8 SCC 190 - State of Haryana v. Unique Farmaid (P) Ltd. and Ors. (Para 11 and 12).
(c) MANU/SC/7327/2008 : 2008 (3) SCALE 563 - M/s Medicamen Biotech Ltd. v. Rubina Bose, Drug Inspector (Para 10).
(i) MANU/MH/0133/1969 : 1970 Mh.L.J. 229 - State of Maharashtra v. Bhagvandas Gopaldas Bhate (ii) MANU/OR/0163/1995 : 1995 Cri.L.J. 3053 (Orissa) (iii) MANU/MH/0512/2005 : 2006 (1) Bom.L.R.350 - Rohit Mull & Cadbury India Ltd. v. The State of Goa (Bom.). (iv) 2002 (2) FAC 226 - Artee Minerals & I.S. Bedi v. State of Rajasthan and Ors. (Rajasthan), (v) 2006 (1) FAC 104 - Naresh Kumar Kedia v. Director, Institute of Preventive Medicine and Ors. (Andhra Pradesh), (vi) 2005 (2) FAC 245 - Ram Singh v. State of M.P., and (vii) Criminal Writ Petition No. 1632 of 1998 - M. Ismail v. State of Maharashtra (decided on 7.10.2004 at Bombay Bench).
5. Per contra, learned A.P.P.. opposed these applications and argued that the sample that was collected by the Food Inspector was found to be adulterated by the Public Analyst in all these cases and immediately after receipt of report of Public Analyst the same was sent to the applicants/accused persons with an intimation to apply to the Court within ten days for sending the sample for reanalysis by the Central Food Laboratory but none of the applicants made any application in all these cases to that effect and therefore they are now estopped from saying that valuable right under Section 13(2) has been lost. Nothing has been shown by the applicants that even if the shelf life or best before date the sample was not fit for reanalysis by the Central Food Laboratory and therefore the submission is merely on the basis of surmises and conjectures.
6. It has been explained in the affidavit in reply that the Complaint was lodged late because of `administrative delay'. The Food Inspector had started investigation after receipt of the report of Public Analyst and was required to collect relevant documentary proofs to establish link from vendors to manufacturers/distributors and in the absence of any instructions being furnished to that effect, reminders were required to be given. Thereafter proposal was sent to the competent authority as required by Section 20 of the Prevention of Food Adulteration Act for obtaining written consent and therefore it cannot be said that the delay caused in the process in filing the complaint has prejudiced the applicant in any manner or whatsoever. The sample does not become unfit after shelf life or best before date. The Circular issued by the Director, Central Food Technological Research Institute, Mysore shows that it is merely suggestive in nature and does not any way fix any time limit for sending of sample for reanalysis and the said Circular does not carry any value and at the most is an administrative direction. Inviting my attention to the additional affidavit filed by the respondent in all these cases learned A.P.P. explained the justification for delay datewise and yearwise and submitted that the delay having been properly explained by the respondent, the applicants have no reason to make any grievance about the same, particularly in the face of the fact that the applicants failed to make any application for reanalysis. He, therefore, prayed for dismissal of the applications.
7. After perusal of the case at hand and considering the various submissions made before me by the learned Counsel for rival parties, I quote following portion from para 6 of the submissions dated 9.2.2010 on behalf of the respondent
It is submitted that the nonapplicant has complied with the provisions of Section 13(2). The copy of the Public Analyst report was sent to the accused persons and intimated to them that in case they want to get the sample reanalyzed by Central Food Laboratory, they may apply to the Court within 10 days. But the applicants have not made any application before the Court for sending the 2nd part of the sample to the Central Food Laboratory for re analysis...
It is not disputed that the sample was collected by the concerned Food Inspector in April 1996 and the prosecution was instituted on 7.7.1999, that is after three years and three months. Report of Public Analyst was received on 23.4.1996 by the Food Inspector and the proposal for written consent was sent on 24.2.1999 to the Joint Director and the consent was received on 27.5.1999. Section 13(2) of the Food Adulteration Act states that the report of Public Analyst is to be sent to the person from whom sample was taken after the institution of prosecution. Apart from the clear language of the Section this Court in para 16 of the judgment in State of Maharashtra v. Bhagvandas Gopaldas Bhate MANU/MH/0133/1969 : 1970 Mh.L.J. 229 and Madras High Court in the case of State v. Arumugham MANU/TN/0032/1989 : 1990 Cri.L.J 1497 held that without instituting the prosecution it is no use serving the Public Analyst's report on the accused. I quote the following extract from para 7 of the said judgment of Madras High Court
...What the rule contemplates is that the serving of the Public Analyst's report and Section 13(2) notice must not be anterior in point of time to the launching of the prosecution in court. Though the prosecution has been launched on the same day, the evidence of P.W.1 makes it fluidly clear that the complaint had been filed in court only at 11 a.m. while a copy of the Public Analyst's report as well as Section 13(2) notice had been served on the respondent three hours prior to the launching of the prosecution. As such, there is a clear violation of the mandatory R.9A. In view of this, the verdict of acquittal has to be sustained dismissing the appeal preferred by the State.
8. It is thus clear that the implementing agency or the Food Inspector does not even know that without instituting the prosecution in the court, report of Public Analyst cannot be sent to the person from whom sample was taken to enable him to send the sample to the Central Food Laboratory. Thus the stand taken by the respondent in para 6 of the affidavit is wholly misconceived and shows lack of knowledge of the legal provisions. I quote para 4 from the submissions on behalf of the respondent
That the delay caused for lodging complaint is an administrative delay. It is submitted that before lodging complaint Food Inspector started investigation after receipt of the Public Analyst report and has collected relevant documentary proof to establish link from Vendor to manufacturer to acquire knowledge of accused persons. The investigating agency was required to take information from vendor, the distributor and the Manufacturer and if no instructions received, reminders were given. And after completing the same the proposal was required to be sent to the Competent Authority and after obtaining the consent from the competent authority is lodged. It is thus the delay caused is not an intentional but to follow the procedural.
9. (a) In Crim. Application No. 3439/2006 sample of Kissan mixed fruit Jam was collected on 13.3.1996 and Public Analyst report was received by Shri B.C. Jilhekar Food Inspector on 27.6.1996 and thereafter instead of utilising powers under Section 10(6) to (8) of the Act and making day to day efforts, he started correspondence with accused and others from 5.7.1996 till 27.5.1999 and then filed prosecution unmindful of the fact that expiry date of sample was fast approaching. The Joint Commissioner after receipt of proposal for consent on 25.11.1008 raised frivolous objection which could be taken care of in court and wasted time till 27.5.1999, i.e. 1 1/2 years for giving consent.
(b) In Crim. Appln. No. 3444 of 2006, sample of the said Jam was collector by Shri A.P. Deshpande, Food Inspector, on 30.1.19997 and Public Analyst report was received by him on 18.3.1997. Thereafter instead of utilising powers under Section 10(6) to (8) of the Act, he also started correspondence with accused and others from 18.3.1997 till 30.4.1998 when he sent proposal for consent which he received on 28.12.1998. Thus the Joint Commissioner wasted eight months for giving consent unmindful of the expiry date, for which there is no explanation.
(c) In Crim. Appln. No. 1290 of 2008, sample of `Vanaspati' was collected on 30.9.2005 by Shri S.G. Boyewar, Food Inspector, and he received Public Analyst report on 19.12.2005. Then he went in deep slumber and shockingly enough on 22.6.2007 he submitted proposal for consent, thus wasting time from 19.12.2005 to 21.6.2007, i.e. 1 1/2 year perhaps on correspondence instead of utilizing powers under Section 10(6) to (8) of the Act. He received consent on 25.10.2007, i.e. after four months for which there is no explanation.
(d) In Crim. Appln. No. 3441 of 2006, sample of `Rex Pineapple Jam' was collected by Shri G.M. Rathod, Food Inspector, on 19.3.1997 and he received Public Analyst report on 12.5.1997. Thereafter he made correspondence from 19.5.1997 till 6.5.1999 when he received consent and other documents and after nine months filed prosecution for which there is no explanation.
(e) In Crim. Appln. No. 3443 of 2006, sample of `Kissan Fruit Jam' was collected on 13.12.1996 by Shri R.R. Choudhari and his superiors and he received Public Analyst report on 18.2.1997. Thereafter he started correspondence from 19.4.1997 till 11.11.1998 when he received consent which required 1 year and 7 months due to frivolous objection and non application of mind by the Joint Commissioner and unmindful of expiry date of one year.
(f) In Crim. Appln. No. 3442 of 2006, sample of above Jam was collected on 16.1.1996 by Shri M.S. Deshpande, Food Inspector, and he received Public Analyst report on 2.12.1996. Thereafter he started correspondence with accused and others till 4.1.1999 when he received the correct `consent.' After submission of proposal for consent on 30.1.1997, Joint Commissioner wasted eleven months to point out a frivolous and avoidable objection and gave consent on 4.1.1999, i.e. after two years unmindful of expiry date.
(g) In Crim. Appln. No. 3445 of 1996, sample of `Aneek Ghee' was taken on 25.3.1998 by Shri A.S. Dhule, Food Inspector, who received Public Analyst report on 30.5.1998. He started correspondence from 10.6.1998 till 24.12.1999 when he received consent, i.e. after expiry date of sample.
(h) In Crim. Appln. No. 3440 of 2006, sample of `Kissan Mixed Fruit Jam' was collected by Shri A.N. Yadao, Food Inspector, on 21.5.1996 and he received Public Analyst report on 19.7.1996. Then he started correspondence as usual on 22.5.1996 till 26.5.1999 when he received consent for which proposal was sent on 11.3.1998 and thus time of one year and two months was wasted unmindful of expiry date of sample.
(i) In Crim. Appln. No. 279 of 2010 (for reference only), I have made the following order on 16.4.2010
Heard.
Rule.
Interim relief in terms of prayer clause - (B).
A.P.P. Shri Y.B. Mandpe waives service for respondent.
On 31.3.2010, this Court made the order, which is quoted below.
In the instant case, sample of insecticides was drawn on 14.10.1998 and after analysing thereof the report was received on 10.12.1998 by the concerned Inspector. Despite this report, it appears that no complaint was filed by him before the Magistrate with a request to take cognizance in the matter. It further appears that without filing the complaint before the Magistrate, the concerned Inspector filed application before the Magistrate on 31.3.1999 with a request for getting the said sample of insecticides re-analysed and the Magistrate granted permission to do so. Mr. Mandpe makes statement that after the sample was sent to the Central Insecticides Laboratory, Faridabad, on 1.4.1999, the said Laboratory informed by letter dated 16.7.1999 that they never accept the fees directly from any industry but it is to be sent through the office of the Inspector. Accordingly, on 5.8.1999 the fees was sent through the office of the Inspector. Mr. Mandpe states that since thereafter the Inspector never received any report from the Faridabad Laboratory and he is unable to tell what steps were taken by the concerned Inspector to get the said report from Faridabad Laboratory. Finally without receiving any report from Faridabad Laboratory complaint was filed on 13.9.2002 by the Inspector.Pursuant to the said order dated 31.3.2010 on 8.4.2010 Shri Khedikar appeared and today he has filed affidavit which is taken on record. In paragraph No. 5 thereof Shri Khedikar states that he was incharge only for two months and therefore cannot be blamed. It has become difficult for this Court to make investigation as to the person/persons exactly responsible for filing of the complaint on 13.9.2002 when the sample was collected on 14.10.1998. Shri A.B. Mashakhatri who was said to be incharge is said to have now retired. The only anxiety this Court carried was when sample was taken in the year 1998 complaint was filed after four years by the concerned Inspector. Not only that the sample was sent to Central Insecticides Laboratory, Faridabad on 1.4.1999 and the concerned Industry was directed to pay the fees directly to the said Laboratory, which refused to accept the fees from the Industry. That shows lack of knowledge on the part of the Inspector in asking the Industry to pay the fees. The Central Laboratory thereafter intimated that they will not accept fees from private person and since then the matter remained intact. Despite this position, the Inspector filed complaint without receiving the report from the Central Insecticides Laboratory. It is, thus, clear that sample was taken and the complaint was filed just to make a show that the Insecticides Inspectors in the Government of Maharashtra are very active in collecting the adulterated samples and prosecuting the wrong doers. This Court finds that there is hardly any training and alertness and caution exercised by the Inspectors in relation to these prosecutions and as expressed by this Court earlier it is not possible to investigate and it is better to ask the concerned secretary of the Agriculture Department to cause to hold an enquiry in the matter and proceed against the guilty and file report about enquiry within a period of two months from today on record of this Court.
Looking to whole states of affairs, it clearly appears that Shri A.B. Mashakhatri was in- charge till 2000 and thereafter Shri Khedikar was incharge of the said post and thereafter Shri R.S. Marghade then assumed the charge.
In view of the above S/Shri A.B. Mashakhatri and Khedikar, District Quality Control Inspector and Insecticide Inspector, to remain present in this Court on 6.4.2010 at 10-30 a.m. Upon failure to remain present in this Court on 6.4.2010, this Court will be compelled to issue warrants against them. It is the responsibility of the A.P.P. to communicate this order to the concerned officers.
10. Criminal Application No. 279 of 2010 and Criminal Application No. 3684 of 2009 have been taken up for consideration only for reference in view of the nature of controversy and total neglect on the part of the implementing agencies that is found by me in implementing the penal provisions of (i) The Insecticides Act, 1968 and (ii) The Drugs and Cosmetics Act 1940 besides pointing out the changes required in these laws due to change in social order.
The Seeds Act, 1966
(A) Section 19 of the Seeds Act reads as under:
Penalty - If any person
(a) contravenes any provision of this Act or any rule made thereunder; or
(b) prevents a Seed Inspector from taking sample under this Act; or
(c) prevents a Seed Inspector from exercising any other power conferred on him by or under this Act, he shall, on conviction, be punishable
(i) for the first offence with fine which may extend to five hundred rupees, and
(ii) in the event of such person having been previously convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Thus, the punishment that was provided for the first offence in the year 1966 was only fine up to five hundred rupees and for second offence one thousand rupees and there does not appear to be any amendment to the provision regarding sentence since 1966 considering the value of Rs. 500/ and Rs. 1,000/ in 1966 and of today. It appears that the last amendment to the Act was made in the year 1973, i.e. 16.11.1973. There is no manner of doubt that in the last decade there have been many instances of bogus seeds being spread into the market worth hundreds of crores of rupees and still the punishment provided is fine up to five hundred rupees. A enduser customer of seed being farmer it is he who is directly affected and hence there is urgent need to provide deterrence.
(B) Section 21 of the Seeds Act reads thus:
Offences by companies. (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Provided that nothing contained in this subsection shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Nothwithstanding anything contained in Sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(C) Section 16 of the Seeds Act reads thus:
Report of Seed Analyst. (1) The Seed Analyst shall, as soon as may be after the receipt of the sample under Sub-section (2) of Section 15, analyse the sample at the State Seed Laboratory and deliver, in such form as may be prescribed, one copy of the report of the result of the analysis to the Seed Inspector and another copy thereof to the person from whom the sample has been taken.
(2) After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending any of the samples mentioned in Clause (a) or Clause (c) of subsection (2), of Section 15 to the Central Seed Laboratory for its report and on receipt of the application, the court shall first ascertain that the mark and the seal or fastening as provided in Clause (b) of subsection (1) of Section 15 are in tact and may then despatch the sample under its own seal to the Central Seed Laboratory which shall thereupon send its report to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of the analysis.
(3) ....
(4) ....
It is seen from reading of Section 16 that after obtaining the report from the Seed Analyst in respect of the sample, the Seed Inspector is supposed to file a prosecution in the court and the accused is then entitled to make application to the Court for sending the sample to the Central Seed Laboratory. No time is mentioned as to within what time from the date of receipt of report of Seed Analyst the accused/complainant is entitled to apply to the Court which, in my opinion, clearly gives scope for manipulation. Subsection (1) of Section 16 does not provide time within which the Seed Analyst shall furnish his report to the Seed Inspector or the person from whom sample was taken. As against this, Central Seed Laboratory is obliged to send its report to the Court within one month from the date of receipt of sample. It appears that in this Act there is no provision that the Court shall not take cognizance of prosecution being filed by the Seed Inspector without prior sanction of State/Central Government or the Officer authorized in this behalf, which provision is to be found in other enactments, which frustrates the smooth implementation of these enactments.
The Insecticides Act, 1968
(D) Section 29 of The Insecticides Act reads thus:
Offences and punishment. (1) Whoever
(a) imports, manufactures, sells, stocks or exhibits for sale or distributes any insecticide deemed to be misbranded under subclause (i) or subclause (iii) or Subclause (viii) of Clause (k) of Section 3; or
(b) imports or manufactures any insecticide without a certificate of registration; or
(c) manufactures, sells, stocks or exhibits for sale or distributes an insecticide without a licence; or
(d) sells or distributes an insecticide, in contravention of Section 27; or
(e) causes an insecticide, the use of which has been prohibited under Section 27, to be used by any worker; or
(f) obstructs an Insecticide Inspector in the exercise of his power or discharge of his duties under this Act or the rules made thereunder,
shall be punishable
(i) for the first offence, with imprisonment for a term which may extend to two years, or with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees, or with both;Clause (f) (i) shows that no minimum sentence of imprisonment is provided and, on the contrary, dispensing with imprisonment, fine only can be imposed for the first offence and similar is the case with second and subsequent offence.
(ii) for the second and a subsequent offence, with imprisonment for a term which may extend to three years, or with fine which shall not be less than fifteen thousand rupees but which may extend to seventy five thousand rupees, or with both.
(E) Section 24 reads thus:
Report of Insecticide Analyst. (1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under subsection (6) of Section 22, shall, within a period of [thirty] days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form.
(2) The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty eight days of the receipt of a copy of the report notified in writing the Insecticide Inspector or the court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.
(4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under subsection (3) notified his intention of adducing evidence in controversion of the Insecticide Analyst's report, the court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the Magistrate under subsection (6) of Section 22 to be sent for test or analysis to the said laboratory, [which shall, within a period of thirty days, which shall make the test or analysis] and report in writing signed by, or under the authority of, Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central Insecticides Laboratory under subsection (4) shall be paid by the complainant or the accused, as the court shall direct.
Section 24 was amended and period of thirty days was provided within which the Insecticides Analyst has to deliver the report.
(F) Rule 25 of the Insecticides Rules, 1971 reads thus:
Fees payable for testing or analysis . (1) The fees payable for testing or analysing insecticides under subsection (5) of Section 24 of the Act shall be as specified in the Second Schedule.
(2) The fee payable for testing or analysing samples received from the Insecticides Inspector shall also be as specified in the Second Schedule;
Provided that the Central Government may, after taking into consideration the genuine difficulties of any particular State Government, exempt the payment of the fee for such as it may consider reasonable.
(G) Section 31 of the Insecticides Act reads thus:
Cognizance and trial of offences. (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorized in this behalf by the State Government.
(2)
Reading of Section 31 shows that without the written consent of the State Government or the person authorized, no prosecution can be instituted.
(H) Section 33 reads thus:
Offences by companies - (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this subsection shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding any contained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Reading of Section 33 shows that the persons responsible to the company for conduct of the business shall be deemed to be guilty. As a matter of fact, Directors of a company forms Board which looks after the business of the company, as the person responsible to the company for the conduct of its business in their capacity as Directors and therefore providing for blanket exemption to the Directors of a company, who are the actual beneficiaries of the business of the company but holding only the persons working in the manufacture of product guilty would serve no purpose as only a front is projected before the prosecuting agency or the Court, and the persons who are the actual beneficiaries, i.e. Directors of the company, continue their business without being brought to justice. The provision regarding institution or bar for institution of prosecution without the consent of the State Government or its authorized officer has proved to be a clear cut obstruction for implementing the provisions of these Acts. Under the provisions of Food Adulteration Act, such provision in Section 20 has now been deleted as applicable to Maharashtra, but there is no central amendment. Subsection (1) of Section 24 of the Insecticides Act provides for delivery of report by Insecticide Analyst to Insecticide Inspector within thirty days from the receipt of the sample, but subsection (2) does not provide any time limit for the Insecticide Inspector to deliver copy of the said report to the person from whom sample was taken. Thereafter the person from whom sample was taken has to notify the Insecticide Inspector or the Court within 28 days from the receipt of such report from the Insecticide Inspector for sending the sample to the Central Insecticides Laboratory. From reading of Section 31, it clearly appears that the prosecution even cannot be instituted without written consent of the State Government and if the prosecution cannot be instituted without written consent, it is difficult for the person from whom sample was taken to apply to the Court for sending the sample to the Central Insecticides Laboratory within 28 days. It is seen as a matter of experience that consent spoken of in Section 31 is never received within reasonable time and on the contrary there are cases where consent was given after a period of more than one year thus rendering the whole prosecution ineffective and useless. It appears that the main object of requirement of consent from the State/Central Government or its authorized officer was to prevent frivolous cases being filed in the court by the Inspectors. The Court where such frivolous cases are filed is duty bound not to take cognizance and reject such prosecution without taking cognizance. These provisions regarding consent before instituting prosecution have thus become clear cut obstruction in the process of administration of justice and not only that the said provisions can easily be misused thereby frustrating the very object of the enactments.The Prevention of Food Adulteration Act, 1954
(I) Section 13 of The Prevention of Food Adulteration Act reads thus:
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 subsection (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 proscribed, 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 subsection (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 subsection (2A), the Court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of subsection 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.
Subsection (2) provides time limit of one month to the Central Food Laboratory to submit its report from the date of receipt of the sample. This subsection (2) provides that the Local (Health) Authority shall after the institution of the prosecution, forward the report of Public Analyst to the person from whom the sample was taken and such person will have to then apply within ten days to the Court, if he so desires to send the sample to the Central Food Laboratory.
(J) Section 20 reads thus:
Cognizance and trial of offences (1) [No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14A] shall be instituted except by, or with the written consent of, [the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government:
Provided that a prosecution for an offence under this Act may be instituted by a purchaser [or recognised consumer association] referred to in Section 12, [if he or it produces] in Court a copy of the report of the public analyst along with the complaint.
[(2) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained, in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under subsection (1AA) of Section 16 shall be cognizable and nonbailable.
Section 20 thus in clear terms provide that no prosecution can be instituted except with the written consent of the Central or State Government or by the person authorized by it. In other words, without instituting the prosecution the person from whom sample was taken cannot even be informed or the Public Analyst report forwarded by the Food Inspector to apply to the Court if he so desires within ten days to send the sample to the Central Food Laboratory. Section 20 creates a bar for instituting prosecution without the consent. As stated by me earlier, obtaining consent is a process which has clearly been seen as a clear cut obstruction in the administration of justice. Subsection (2) does not provide for any time limit for the Local (Health) Authority within which he must institute the prosecution and within which time it must forward the report of Public Analyst to the person from whom sample was taken.
(K) Section 17 of the Act reads as under:
Offences by companies - (1) Where an offence under this Act has been committed by a company
(a) (i) the person, if any, who has been nominated under subsection (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the persons responsible),
or
(ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and
(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;
Provided that nothing contained in this subsection shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, order in writing, authorise any of the directors, or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, alongwith the written consent of such director or manager for being so nominated.
Explanation - Where a company has different establishment or branches or different units in any establishment or branch, different persons may be nominated under this subsection in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under subsection (2) shall, until
(i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; orwhichever is the earliest, continue to be the person responsible.
(ii) he ceases to be a director or, as the case may be, manager of the company; or
(iii) he makes a request in writing to the Local (Health) Authority under intimation to the company, to cancel the nomination (which request shall be complied with by the Local (Health Authority],
Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority.
Provided further that where such person makes a request under Clause (iii) the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing Sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary, or other officer of the company [not being a person nominated under subsection (2)] such director, manager, secretary, or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(L) Rule 12B of the Rules reads thus:
Form of nomination of Director or Manager and his consent under Section 17(1) A company may inform the Local (Health) Authority of the concerned local area, by notice in duplicate, in Form VIII containing the name and address of the Director or Manager, who has been nominated by it under subsection (2) of Section 17 of the Act to be in charge of, and responsible to, the company for the conduct of the business of the company or any establishment, branch or unit thereof:
Provided that no such nomination shall be valid unless the Director or Manager who has been so nominated, gives his consent in writing and has affixed his signature, in Form VIII in duplicate in token of such consent.
(2) The Local (Health) Authority shall sign and return one copy of the notice in Form VIII of the company to signify the receipt of the nomination and retain the second copy in his office for record.
11. The aforesaid provision clearly provides for the company to appoint or nominate a person for facing the prosecutions in the court of law. This provision clearly exonerates the real culprits who manufacture adulterated and dangerous products or articles by saying that they are merely sleeping directors of the company having no role to play in the actual process of manufacturing and though they are real beneficiaries of the adulterated goods or articles sold by the company, the person nominated by them shall be only guilty of any of the offence even if the offence is punishable under Section 1A up to life imprisonment. The activity of adulteration by extending such an exemption to the real beneficiaries and the manufacturers of the adulterated products is not at all checked and thus such provisions clearly act as an obstacle in the administration of justice and the provisions of these welfare legislation concerning the human health are not at all implemented, which is the object in framing these laws.
12. In Criminal Application No. 1827 of 2007 decided on 29.3.2010 I have already held that `Gutka' and other similar products manufactured by certain companies being dangerous to human health, it would be a traversity of justice that at no point of time the real masters and beneficiaries who have been spreading these deadly articles in market at the cost of human health of majority of poor people are never brought to justice. Therefore, in my opinion, it is necessary to have a second look at these types of provisions in these enactments concerning human health.
The Drugs and Cosmetics Act, 1940
(M) Section 32 of the Drugs and Cosmetics Act reads thus:
Cognizance of offences. (1) No prosecution under this Chapter shall be instituted except by an Inspector [or by the person aggrieved or by a recognized consumer association whether such person is a member of that association or not].
(2) No Court inferior to that of [a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitute an offence against this Chapter.
13. Perusal of the above provision of Section 32 shows that for instituting prosecution there is no requirement for obtaining written consent of the State Government or Central Government or the Officer authorised by any of them or a recognized consumer association or a person aggrieved can also institute prosecution which is not so prevented in other enactments.
(N) Section 30 of the Act reads thus:
Penalty for subsequent offences . [(1) Whoever having been convicted of an offence
(a) under Clause (b) of Section 27 is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to six years and with fine which shall not be less than ten thousand rupees;
Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than two years and of fine of less than ten thousand rupees;
(b) under Clause (c) of Section 27, is again convicted of an offence under that clause shall be punishable with imprisonment for a term which shall not be less than six years but which may extend to ten years and with fine which shall not be less than ten thousand rupees;
(c) under Clause (d) of Section 27, is again convicted of an offence under that clause shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to four years or with fine which shall not be less than five thousand rupees, or with both.].
[(1A) Whoever, having been convicted of an offence under Section 27A is again convicted under that section, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to [two thousand rupees], or with both].
(2) Whoever, having been convicted of an offence under Section 29 is again convicted of an offence under the same section, shall be punishable with imprisonment which may extend to [ten years], or with fine, or with both].
14. Sections 27, 28, 28A, 28B, 29 and 30 of the said Act provide for various punishments and it is seen from the perusal of the above provision that the penalty is of imprisonment and in Section 30 minimum sentence is provided which is not provided under Insecticides Act or the Seeds Act.
(O) Section 25 of the Act reads thus:
Reports of Government Analysts. (1) The Government Analyst to whom a sample of any drug [or cosmetic] has been submitted for test or analysis under subsection (4) of Section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.
(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken [and another copy to the person, if any, whose name, address and other particulars have been disclosed under Section 18A] and shall retain the third copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken [or the person whose name, address and other particulars have been disclosed under Section 18A] has, within twenty eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.
(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under Sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: cause the sample of the drug [or cosmetic] produced before the Magistrate under subsection (4) of Section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central Drugs Laboratory under subsection (4) shall be paid by the complainant or accused as the Court shall direct.
Subsection (1) of Section 25 does not prescribe any time limit for the Government Analyst to send his report of test/analysis, nor subsection (2) provides for any time limit to the Inspector to deliver the copy of the report to the person from whom sample was taken, but subsection (3) provides that Central Laboratory shall within 28 days notify the Inspector or the Court about sending sample to the Central Drugs Laboratory. The Central Drugs Laboratory shall submit report to the Court but no time limit is prescribed for the Central Drugs Laboratory to send such report and the cost for such analysis can be paid either by the complainant or the accused as the Court shall direct. Rules 3 and 45 of The Drugs & Cosmetic Rules, 1945 are silent as to the time qua analyst and Central Drugs Laboratory. There are the areas which require a fresh look by the authorities.
15. The question whether for retesting the sample at the instance of the accused by Central Laboratory, whether the complaint must be filed well in advance before the shelf life of the sample or expiry date of the sample, is the moot question that is required to be addressed. The stand taken by the Department as well as A.P.P. with vehemence before me is that the shelf life or expiry date of sample even if mentioned any where is no ground to claim that the sample must have deteriorated and since the limitation for filing a case is three years, the department is justified in filing the prosecution before three years or even thereafter and this contention regarding shelf life or the expiry date is wholly irrelevant. It is seen that in none of these cases in which the samples were collected, it is the case of prosecution that any preservative was added. Learned A.P.P. cited few judgments of other High Courts in support of his proposition but they are not directly on the question of expiry date or shelf life of the sample. On the above question since the Hon'ble Supreme Court has consistently taken a view about filing of prosecution well in time it would be profitable for me to quote relevant portion from some of the judgments to show that the stand taken by the department and the learned A.P.P. is wholly illegal and how the department is not at all equipped with the legal knowledge in the matter. In Municipal Corporation of Delhi v. Ghisa Ram MANU/SC/0102/1966 : AIR 1967 SC 970 the Supreme Court in para 7 and 8 pronounced thus:
It appears to us that when a valuable right is conferred by Section 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 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 the 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.
We are not to be understood as laying down that in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.
16. In MANU/SC/0645/1999 : (1999) 8 SCC 190 - State of Haryana v. Unique Farmaid (P) Ltd., the apex court in para 11 held thus:
Subsection (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, the expiry date of the insecticide was already over and sending of the sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In State of Punjab v. National Organic Chemical Industries Ltd MANU/SC/1779/1996 : (1996) 11 SCC 613 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost despatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal MANU/SC/0336/1998 : (1998) 5 SCC 343 under the Drugs and Cosmetics Act, 1940, Municipal Corporation of Delhi v. Chisa Ram MANU/SC/0102/1966 : AIR 1967 SC 970; Chetumal v. State of M.P. MANU/SC/0130/1981 : (1981) 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf MANU/SC/0011/1999 : (1999) 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954.
It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under subsection (4) of Section 24 of the Act. Under subsection (3) of Section 24 report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticide Inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases the Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the Court, the shelf life of the sample had already expired and no purpose would have been served informing the Court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case the accused have been deprived of that right, thus, prejudicing them in their defence.
17. In Medicamen Biotech Ltd. v. Rubina Bose MANU/SC/7327/2008 : 2008 (3) SCALE 563, the apex court in the facts of the said case and relying on the aforesaid earlier judgments held in para 10 thus
... It is also clear that the complaint had been filed on the 2nd July 2002 which is about a month short of the expiry date of the drug and as such had the accused appellant appeared before the Magistrate even on 2nd July 2002, it would have been well nigh impossible to get the sample tested before its expiry. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9th May 2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for retesting of the drug had been made by the appellant in August/ September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time....
18. After perusal of the case at hand and considering the various submissions made before me by the learned Counsel for rival parties, I quote following portion from para 6 of the submissions dated 9.2.2010 on behalf of the respondent
It is submitted that the nonapplicant has complied with the provisions of Section 13(2). The copy of the Public Analyst report was sent to the accused persons and intimated to them that in case they want to get the sample reanalyzed by Central Food Laboratory, they may apply to the Court within 10 days. But the applicants have not made any application before the Court for sending the 2nd part of the sample to the Central Food Laboratory for re-analysis...
It is not disputed that the sample was collected by the concerned Food Inspector in April 1996 and the prosecution was instituted on 7.7.1999, that is after three years and three months. Report of Public Analyst was received on 23.4.1996 by the Food Inspector and the proposal for written consent was sent on 24.2.1999 to the Joint Director and the consent was received on 27.5.1999. Section 13(2) of the Food Adulteration Act states that the report of Public Analyst is to be sent to the person from whom sample was taken after the institution of prosecution. Apart from the clear language of the Section this Court in para 16 of the judgment in State of Maharashtra v. Bhagvandas Gopaldas Bhate MANU/MH/0133/1969 : 1970 Mh.L.J. 229 and Madras High Court in the case of State v. Arumugham MANU/TN/0032/1989 : 1990 Cri.L.J 1497, cited supra, held that without instituting the prosecution it is no use serving the Public Analyst's report on the accused.
19. It is thus clear that the implementing agency or the Food Inspector does not even know that without instituting the prosecution in the court, report of Public Analyst cannot be sent to the person from whom sample was taken to enable him to send the sample to the Central Food Laboratory. Thus the stand taken by the respondent in para 6 of the affidavit is wholly misconceived and shows lack of knowledge of the legal provisions. I quote para 4 from the submissions on behalf of the respondent
That the delay caused for lodging complaint is an administrative delay. It is submitted that before lodging complaint Food Inspector started investigation after receipt of the Public Analyst report and has collected relevant documentary proof to establish link from Vendor to manufacturer to acquire knowledge of accused persons. The investigating agency was required to take information from vendor, the distributor and the Manufacturer and if no instructions received, reminders were given. And after completing the same the proposal was required to be sent to the Competent Authority and after obtaining the consent from the competent authority is lodged. It is thus the delay caused is not an intentional but to follow the procedural.
20. From the above, it clear appears that the department is under the impression that administrative delay in instituting the prosecution or for whatever reasons including the time required for investigation etc. is a good ground in criminal cases to meet the challenges from the accused on the ground of delay. In my opinion, the said stand taken by the respondent is wholly misconceived and shows how casually the Food & Drugs Department and its officials are implementing the law. When the various provisions of Food Adulteration Act and the Rules thereunder require compliance to be made within stipulated period at every stage, no delay muchless administrative delay can be an excuse for the implementing agency in filing the complaint with delay. This Court has found in these cases that after taking sample or after receipt of report from Public Analyst the Food Inspector goes on making correspondence with the person from whom sample is taken or the dealer or the manufacturer for a long time or even till the expiry date of the sample or even thereafter and prosecutions are launched after one to five years. Is it that the Foods and Drugs Department does not know that Prevention of Food Adulteration Act provides for time limit for performing or taking each step. I fail to understand as to why Food and Adulteration Department and its officers waste time in making correspondence with the accused when Section 10(7A)(7B)(6)(7) and (8) reproduced below clearly empower them to act to find out all details required. How the department expects accused to disclose all details which would be adverse to his and his masters interest. The Section reads thus:
10. Powers of Food Inspectors.
(6) [Any adulterant found in the possession of a manufacturer or distributor of, or dealer in, any article of food or in any of the premises occupied by him as such] and for the possession of which he is unable to account to the satisfaction of the Food Inspector, [and any books of account or other documents found in his possession or control and which would be useful for, or relevant to, any investigation or proceeding under this Act, may be seized by the Food Inspector] and [a sample of such adulterant] submitted for analysis to a public analyst:
Provided that no such books of account or other documents shall be seized by the Food Inspector except with the previous approval of the authority to which he is official subordinate.[
(7) Where the Food Inspector takes any action under Clause (a) of subsection (1), subsection (2), subsection (4) or subsection (6), he shall [call one more persons to be present at the time when such action is taken and take his or their signatures].
(7A) Where any books of account or other documents are seized under subsection (6), the Food Inspector shall, within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies thereof or extracts therefrom as certified by that person in such manner as may be prescribed have been taken:
Provided that where such person refuses to so certify, and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof or extracts therefrom as certified by the Court have been taken.
(7B) When any adulterant is seized under subsection (6) the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.]
(8) Any Food Inspector may exercise the powers of a police officer [under Section 42 of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized.
21. It is also observed that authority giving consent, i.e. Joint Commissioner, Foods & Drugs Department, also take too much time to give consent by raising unnecessary and avoidable objections without understanding the time frame under the Act and other provisions of Prevention of Food Adulteration Act and Code of Criminal Procedure which allow addition of accused persons. Looking to the scenario discussed by me above, I conclude that the Food and Drugs Department and its officers right from the cadre of Food Inspectors to Joint Commissioner do not have any legal knowledge, legal skill and seriousness with which the provisions of these Acts concerning human health is required. They are casual, callous and hardly concerned. Relevant and concerned provisions/amended provisions of Code of Criminal Procedure are not even known to them to make use thereof. They are making cases only to show that cases are being prepared and instituted in courts and finally tell the people that courts have discharged or acquitted the accused persons and thus save their skin. In my opinion, Government is simply wasting money on Food and Drugs Department and serious view for revamping this department will have to be taken by the Government with strict `accountability' to be fixed for each and every officer.
22. The implementing agency must immediately file a complaint without wasting any time in making investigation regarding distributor or manufacturer and thereafter apply to the Court for impleading the manufacturer/distributor or, as the case may be. That apart Section 20A of Food Adulteration Act also operates after commencement of trial. Section 20A of the Food Adulteration Act reads thus:
Power of Court to implead manufacturer etc. Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any articles of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the Court may, notwithstanding anything contained in [subsection (3) of Section 319 of the Code of Criminal Procedure, 1973 (2 of 1974)] of in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20.].
23. Thus taking into consideration the law laid down by the Supreme Court as aforesaid, which is the law of land, the submissions made by the department before me as aforesaid on this point are not only misconceived, misplaced and frivolous but show tendency not to follow the law laid down by the Supreme Court and, on the contrary, in order to justify its lethargy on the part of the department and its officers make submission that department can file a complaint in the Court as and when they like. Thus the Food and Drugs Department in the State of Maharashtra has wholly frustrated the central legislation by wasting huge public money by their acts of omissions and commissions. I have already pointed out in details in para 7, 8, 9, 19, 20 & 21 the acts of omissions and commissions on the part of the officers of the department and I clearly find that the officers of the Food and Drugs Department in these cases who are public servants have disobeyed the law with intention to cause injury by their acts of omissions and commissions and thus they have committed offence punishable under Section 166 of Indian Penal Code. Since the offence is noncognizable, this Court directs the Secretary, Foods and Drugs Department, Govt. of Maharashtra, to identify the concerned officers responsible for the acts of omissions and commissions in all these cases and cause filing of private complaint for the offence punishable under Section 166 of Indian Penal Code against them in the court of law, and report compliance about filing thereof to this Court on or before 31.7.2010.
24. The upshot of the discussion on facts is that there is violation of valuable right of accused persons under Section 13(2) of Prevention of Food Adulteration Act and since it is settled law that in case of such violation the prosecution cannot succeed, it is no use continuing the prosecution. Hence, I make the following order.
25. Criminal Applications No. 3439 of 2006, 3440 of 2006, 3442 of 2006, 3444 of 2006, 3441 of 2006, 3445 of 2006, 1290 of 2008 and 3443 of 2006 are allowed. Rule is made absolute in terms of prayer Clause (A) & (B) in Crim. Appln. No. 3439 of 2006 and in terms of prayer Clause (A) in Crim. Appln. Nos. 3440/06, 3442/06, 3441/06, 3445/06, 1290/08 and 3443 of 2006.
Copy of this judgment shall be sent to the Chief Secretary, Government of Maharashtra, for carrying out the instructions mentioned by this Court in the judgment with reference to the working of the Food and Drugs Department and the other implementing agencies under The Seeds Act, The Insecticides Act and The Drugs & Cosmetics Act in the State of Maharashtra.
Copy of this judgment shall also be sent to Ministry of Law and Justice, Government of India, New Delhi, with reference to the need for relook at the provisions of the Acts discussed in this judgment.
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