Wednesday, 23 May 2018

Whether prosecution under Prevention of food adulteration Act can be quashed if there is inordinate delay in launching of prosecution?

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.
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.




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

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