Supreme Court: Prevention of Food Adulteration Act- Mere Dispatch Of Public Analyst's Report To Accused Not A Sufficient Compliance Of Mandatory Requirement To Serve It On Him

Under Sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of Sub-section (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can 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 analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the Article of food was taken. Apart from the right of the Accused to contend that the report is not correct, he has right to exercise an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the Accused, his right Under Sub-section (2) of Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated. Consequently, his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in the case of Vijendra (supra) held that mere dispatch of the report to the Accused is not a sufficient compliance with the requirement of Sub-section (2) of Section 13 and the report must be served on the Accused.

6. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope, the Postman who has allegedly made the said remarks was admittedly not examined by the prosecution.

7. Rule 9B of the said Rules reads thus:

9B. Local (Health) authority to send report to person concerned--The Local (Health) Authority shall [within a period of ten days] after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him Under Sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the Article was taken by the food inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed Under Section 14A of the Act:

More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the Accused. In the present case, after the postal packet was returned, not even an attempt was made to personally serve the report on the Appellant.

8. On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the Appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement Under Sub-section (2) of Section 13 of serving a copy of the report on the Accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of Sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the Appellant cannot be sustained. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1312 of 2021 

Decided On: 29.10.2021

Narayana Prasad Sahu Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

Ajay Rastogi and Abhay Shreeniwas Oka, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/1017/2021.

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Whether the court can rely on report of public analyst if he is not examined?

Whatever that may be, we are concerned in this case not with the report of a Chemical Examiner but with that of a Public Analyst. In so far as the report of the Public Analyst is concerned we have the provisions of section 13 of the Act. Sub-section (5) of that Section provides as follows :

"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 :

Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein."

12. This provision clearly makes the report admissible in evidence.

What value is to be attached to such report must necessarily be for the Court of fact which has to consider it.

Sub-section (2) of section 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity taken under section 11 of the Act to the Director of Central Food Laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under sub-section (5) but is given finality of the facts contained therein by the proviso to that sub-section.

It is true that the Certificate of the Public Analyst is not made conclusive but this only means that the court of facts is free to act on the certificate or not, as it thinks fit.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 113 of 1963

Decided On: 08.02.1965

Mangaldas Raghavji Ruparel and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.C. Shah, J.R. Mudholkar, K.N. Wanchoo, M. Hidayatullah and S.M. Sikri, JJ.

Author: J.R. Mudholkar, J.

Citation: MANU/SC/0070/1965 : AIR 1966 SC 128

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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.

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Whether it can be presumed that food product is not fit for testing if its shelf life has expired?

 Learned counsel for the applicants submitted
that the oil was manufactured on 22-6-2004 and the shelf
life was six months but the complaint was filed after 16
months and so the right given under section 13(2) of the
Act was lost. This contention is also not acceptable.
Report of the Public Analyst shows that the sample sent
was fit for testing. At this stage, it needs to be presumed
that the procedure as laid down in section 13 of the Act
was followed. It is not the case of the applicants that the
applicants wanted to avail the right and they had followed
the procedure as laid down in section 13(2) for sending
the second sample. Further, in the present matter the
substances mentioned in the report were found in the
edible oil. At this stage it cannot be said that such

substance is a bye-product when such oil is extracted
from seeds. Mixture of such substance is apparently not
permissible. In view of these circumstances the accused
ought to have exercised the right given under section
13(2) of the Act as the Local Health Laboratory had given
report that the sample was fit for testing and the sample
was found to be adulterated.
8) Learned counsel for the applicants placed
reliance on some reported and un-reported cases. In the
case reported as 1985 Cr.L.J. 1255 (Bombay High Court)
(Y.M. Koli v. D.A. Kokani) the Court held that the accused
was entitled to acquittal if on account of delay in filing
complaint the remaining samples had become unfit for
analysis. The substance involved was milk. In the case
reported as 2010(2) FAC 239 (Nagpur Bench) (Shivkumar
vs. State of Maharashtra) the matters involving
substances like mixed fruit jam, Rex Pineapple jam, Anik
ghee and Nutrela Vanaspati were considered. Samples
were apparently collected in April 1996 and prosecution
was instituted on 7-7-1999. It was held that there was no
compliance of section 13(2) of the Act as the report of the

Public Analyst was not sent to the person from whom
sample was taken. In view of the facts of those cases
criminal applications were allowed and the prosecution
and the cases were quashed. It needs to be observed that
in view of provisions of section 13(2) and 13(2-A) right
needs to be exercised by the accused and there is no
provision in the Act showing that the Court needs to act
with the presumption that after shelf life period, the food
article gets destroyed, it becomes unfit for testing. Food
substance may be different in each case. What can be true
in case of milk collected from container or curd collected
from container may not be true in respect edible oil
collected from closed tin after opening it. Further, as
already observed, in view of the definition of adulterant, in
some cases things which are found as adulterant cannot
come in existence due to process of decomposition.
Unless there is report of the laboratory that the sample is
not fit, the Court cannot raise such presumption. Each
case needs to be dealt with separately on the facts and
circumstances of that case. So, with due respect this
Court observes that the observations made in the cases
cited supra are of no use in the present matter.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Application No.2841 of 2006
 Cargill Foods India Ltd. V The State of Maharashtra.

 CORAM: T.V. NALAWADE, J.

 DATE : 25 JANUARY 2017
Citation: 2017 ALLMR(CRI) 1397

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When court will quash prosecution under prevention of food adulteration Act?

Taking note of the provisions of Section 13 of the Act, if we look into
the conduct of the respondent authorities what clearly reflects is that though the
authorities had received the report from the Public Analyst on 31.12.2004 the
prosecution case was lodged for the first time on 28.9.2005, that is, after a span
of more than nine months from the date of receipt of the Public Analyst. Further,
from the submissions made on either side what is reflected is that the alleged
two notices referred to by the respondent of having been issued to the petitioner
on 11.11.2005 and again on 18.6.2005 are not in fact notices issued as is
required under Section 13 of the Act but are notices which were issued to the
petitioner-establishment seeking for certain information in respect of the
Directors of the company. On the contrary, the prosecution case as per the stand
of the respondent was filed on 28.9.2005. It is also not in dispute rather has not
been disputed by the Counsel for the respondent that the life of the product
stood expired on 23.6.2005 and that the prosecution case has been lodged after
more than three months from the date the life of the product had expired.
8. In the given factual position apparently upon the respondent initiating
prosecution case against the petitioner they could not have availed the remedies
which was otherwise available to them under the provisions of Section 13 of the
Act. The denial of the said remedies would definitely be detrimental to the case
of the petitioner. It is relevant at this juncture to refer to the judgment of
Municipal Corporation of Delhi (supra) wherein in para 7 it has been held as
under :
"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."
9. It would also be trite at this juncture to also refer to a judgment of the
coordinate Bench of this Court in Crimial Misc. Petition No. 181 of 2007 decided
on 27.8.2009 wherein also on some what similar factual background of the case,
this Court relying upon the case of the Municipal Corporation of Delhi (supra)
and other judgments in this regard, had allowed the petition of the petitioners
therein quashing the criminal prosecution initiated under the Act. Since in the
instant case also the admitted factual position clearly reflect that the prosecution
case itself was lodged much beyond the expiry of the life of the product the
petitioner could not have availed the remedies which were otherwise available to-
it under the provisions of Section 13 of the Act. Moreover, there appears to be a
genuine lapse on the part of the respondent-department in not taking prompt
action on the basis of the report of the Public Analyst. The dates which have
been referred in the preceding paragraphs clearly reflect that in spite of the fact
that the sample being collected on 23.11.2004 and the report of the Public
Analyst was received on 31.12.2004 the respondent did not take any prompt
action to initiate the prosecution case against the petitioner rather for reasons
best known to the respondent-department sat over the file with only issuance of
two letters to the petitioner-establishment seeking for information in respect of
the Directors of the said establishment. In fact, the respondent ought to have
immediately proceeded in accordance with the provisions of the Act so that the
petitioner if at all intended to assail the report of the public analyst could have
got an opportunity to avail the same and denial of the same would definitely
amount to violation of the provisions of law. For the aforesaid reasons, this Court
is of the opinion that the prosecution lodged against the petitioner is in
contravention to the provisions of the Act and is in direct conflict with the
provisions of Section 13 (2) of the Act.
HIGH COURT OF CHHATTISGARH, BILASPUR
 CRIMINAL MISC. PETITION NO. 714 OF 2015
Firm Ramdeo Food Products Pvt. Ltd.
Versus
State of Chhattisgarh,
Hon'ble Shri Justice P. Sam Koshy
Dated: 20/10/2016
Citation: 2017 CRLJ(NOC)70 CHH

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Whether Co-accused are also entitled to benefit of right exercised U/S 13(2) of Prevention of Food Adulteration Act?

 On hearing the parties we find ourselves in complete agreement with the submissions advanced on behalf of the Appellant that in case like the present where there are many accused, once right is exercised Under Section 13(2) of the PFA Act by any of the accused leading to a certificate from the Director of the CFL, the consequence would be supersession of the report given earlier by the Public Analyst under Sub-section (1) of Section 13 and such supersession must enure to the benefit of all the co-accused. The submission advanced on behalf of the Respondents by Mr. S.S. Shamshery, learned Additional Advocate General for the State of Rajasthan that such supersession will be only to the benefit of the accused who exercised their right Under Section 13(2) of the PFA Act does not merit acceptance. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 252 of 2016 (Arising out of S.L.P. (Crl.) No. 3654 of 2015)

Decided On: 12.04.2016

 Hindustan Unilever Ltd. Vs.  State of Rajasthan and Ors.

Hon'ble Judges/Coram:Dipak Misra and Shiva Kirti Singh, JJ.

Citation:(2016) 7 SCC474

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Whether Magistrate can rely upon report of public analyst in prevention of food adulteration case even though he is not examined?

Section 13(5) of the Act, makes the report of the public analyst admissible in evidence and a Court of fact is free to act on it or not, as it thinks fit. The Court could therefore legally act solely on the basis of the report and the prosecution Could not fail on the ground that the public analyst was not called as a witness. If the appellant wanted the analyst to be examined, it was for the appellant to take appropriate steps.

Supreme Court of India

Mangaldas Raghavji Ruparel & Anr vs The State Of Maharashtra & Anr on

 8 February, 1965

Equivalent citations: 1966 AIR 128, 1965 SCR (2) 894

Bench: Wanchoo, K.N., Hidayatullah, 

M., Shah, J.C., Mudholkar, J.R., Sikri, S.M.

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When report of public analyst can be used against accused in prevention of food adulteration case?

The provision shows that the Local (Health) Authority needs to inform to the accused about the report of analysis and within a period of ten days of the receipt of the intimation, the accused is expected to exercise his right for sending the second sample to Central Food Laboratory. The provision shows that the accused needs to file application for exercising the right and he is expected to pay the charges for the same. The provision of section 13 (5) and remaining part ofsection 13 come in to play if accused does not exercise the right given to the accused under

section 13 (2). The provision of section 13 (5) runs as under :-

"(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 section 272 to 276 of the Indian Penal Code (45 of 1860). "

So, if the accused does not exercise the right given under section 13 (2) of the Act, the report of the Public Analyst needs to be used as evidence against the accused.

Bombay High Court

Aravind Shankar Manegaonkar vs The State Of Mah on 5 November, 2014

Bench: T.V. Nalawade

Citation; 2015 CRLJ(NOC)482 BOM

Read full judgment here; click here

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Whether accused can be acquitted in food adulteration case on the ground that report of public analyst is not served upon him?

The entire appeal could be disposed of only on this count. The record shows that even office copy of the notice under Section 13(2) is said to have been served upon the accused is not produced by the prosecution. Had the copy of such notice was brought on record, it would have been an indicative of the fact whether it did accompany with the report of Public Analyst as envisaged under the Act. In absence of said office copy of notice and in absence of any such positive evidence that the Public Analyst report was in fact served upon the accused in compliance with mandatory provisions of Section 13(2) of the Act, it would not be proper for this court to presume that the report must have been supplied only on the strength of production of two postal acknowledgment dues at exhibit 28 and 29. The exhibit 28 and 29 merely indicate receipt of notice but that in itself can not be said to be proving sending of the copy of Public Analyst report also with the notice. The testimony of the Food Inspector is also conspicuously silent about sending of report of the Public Analyst along with notice as envisaged under Section 13(2) to the accused. The mere statement that Godhra Local Health Authority sent notice to the accused under Section 13(2) in itself would not be sufficient to prove the service of report of the Public Analyst to the accused as it is required under Section 13(2) of the Act.

Gujarat High Court

State Of Gujarat vs Mehbub Abdulgani Kathki (Vendor) ... on 29 September, 2005

Equivalent citations: 2006 CriLJ 459, 2006 FAJ 116, (2006) 1 GLR 255,2006 ALLMR(cri) Journal 85

Bench: S Brahmbhatt

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Whether accused can be acquitted on the ground that notice U/S 13(2) of prevention of food adulteration was sent to him belatedly?

 In this case the delay in filing the Complaint and sending the notice under Section 13(2) of the Act belatedly is entirely attributable to the Complainants which has resulted in defeating a valuable right of the accused, Page 360 a right which is fundamental to their defence. The Ld. Additional Sessions Judge might have been right in observing that no time limit was prescribed for the Local Health Authority to send the copy of the report of the result of the analysis to the person from whom the sample of the article was taken, but the complainant as well as the local health authority had to ensure that a statutory right given to the accused would not be frustrated. As already noted in the case of the two of the purchases the notice given to the petitioners/accused was given much after the 'Best Before Date' and in cases of the third purchase, the notice was given just before two days of the said 'Best Before Date' thereby making it impossible for the Petitioners, even if they were stationed in this State, to exercise the said right of making an application to the Court concerned to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. Even if the petitioners had made such an application immediately after receiving the said report of the Public Analyst, it would have been impossible for the petitioners to have exercised the said right given to them in such a short period. In other words, the Complainants made it impossible for the accused to exercise the right under Subsection 2 of Section 13 of the Act. In such a situation no conviction against the accused would be possible and therefore no useful purpose would be served by continuing with the prosecutions under Sections 7/16 of the Act. The law laid down by the Apex Court in Ghisa Ram (supra) and Chetumal (supra) is clearly applicable to the facts of these case. The The Complainants can only blame themselves and not the accused for the delay caused in filing the complaints and or issuing the notice to the accused alongwith the report of the Public Analyst to enable the accused to exercise their right under subsection 2 of the Section 13 of the Act. Continuation of the prosecution would be, when conviction will be impossible, nothing but a farce and an abuse of the process of the court.

Bombay High Court

Shri Rohit Mull And Cadbury India ... vs The State Of Goa At The Instance Of ... on 29 November, 2005

Equivalent citations: (2006) 108 BOMLR 350,2006 ALLMR(cri)665

Bench: N Britto

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