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
