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unless the accused /Petitioner makes an application to the court expressing his desire to send the sample for second opinion to Central Seeds Laboratory, the accused cannot claim that prejudice has been caused.

Crl.M.C. 2069/2008 Page 1 of 8

  

* THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2069/2008 Date of Decision: 01.06.2012 BRITANNIA NEW ZEALAND FOODS PVT. LTD & ANR. …… Petitioners Through: Mr. Siddharth Luthra, Sr. Adv. with Mr. Jawahar Lal, Mr. Mayank, Mr. Samarjit Patnaik & mr. Arjun Mahajan, Advocates. Versus DIRECTOR(PFA) & ANR. …… Respondents Through: Mr. M.N. Dudeja, APP for the State. CORAM: HON’BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J.
1. The petitioner seeks quashing of Complaint no. 136/PFA/DA/07, titled as “Food Inspector v. S.R. Goyal & Ors” filed under Section 7 and 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the “Act”) pending in the Court of the learned MM and the order dated 18.10.2007 passed in the Complaint and the proceeding emanating there from.
2. The brief facts necessitating the disposal of the present petition are that on 20.03.2006, the Food Inspector visited the shop M/s Anand General
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and bought three tinned cans of “Cheddar Cheese”. The samples collected were sent for analysis to the public analyst and vide report dated 05.04.2006 the analyst opined that the sample does not conform to the standard milk fat of dried matter and is less than the prescribed minimum limit of 40%. Thereafter, consent for prosecution under Section 20 of the Act was accorded by the Director Prevention of Food Adulteration on 24.08.2007. A complaint was filed in the Court of learned MM on 18.10.2007, and the learned MM issued summons to the petitioner vide order dated 18.10.2008. Hence the present petition.
3. The learned senior counsel for the petitioner submitted that the complaint against the petitioner was filed after 18 months of procurement of the sample by the food inspector for analysis from the shop. It was submitted that the sample being a food product was a perishable item and had a shelf life of 9 months. It was further submitted that in view of Section 11(4) of the Act, an article of food seized for analysis has to be produced before the Magistrate as soon as possible and in any case, not later than seven days after the receipt of the report of the public analyst. It was submitted that the delay in filing of the complaint by the respondent has deprived the petitioner of his right under Section 13(2) of the Act to send the sample for analysis to the Central Food Laboratory. The learned senior counsel relied upon State of Haryana v. Unique Parmaid Pvt. Ltd. & Ors (1999) 8 SCC 190, Northern Mineral Ltd. v. U.O.I JT 2010 (7) SC 81, Gupta Chemicals Pvt. Ltd. v. State of Rajasthan & Ors (2010) 7 SCC 735 and Handi Instant Foods v. State of A.P. (2007) CriL.J. 112 in support of his submissions.
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4. Per contra, the learned APP submitted that the delay in the filing of the complaint before the learned MM was due to the fact that the petitioner had failed to co-operate in the investigation and the delay cannot be attributed to the prosecution.
5. I have heard the learned senior counsel for the petitioner and the learned APP and also perused the documents available on record.
6. In the present case, the sample of the food product was taken by the Food Inspector on 20.03.2006 and sealed in accordance with the rules. The sample was subsequently sent to the public analyst who opined that the sample did not conform to standard as the milk fat of dried matter was less than the prescribed limit of 40 %. The complaint was filed after 18 months i.e. on 18.10.2007 in the Court of the learned MM. It is the case of the petitioner that he had been prejudiced as his right under Section 13(2) of the Act was not available to him, as the sample had expired and could not be sent for re-analysis to the Central Food Laboratory. However, it is not the case of the petitioner that the due procedure was not followed at the time of sampling. Also, it is not the case of the petitioner that he sent the sample for analysis to the Central Food Laboratory. Admittedly the petitioner did not apply under Section 13(2) of the Act for analysis of second sample by Central Food Laboratory.
7. In the case of Babu Lal Hargovinddas v. State of Gujarat AIR, 1971 SC 1277, the Hon’ble Supreme Court held that, “6. There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four
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months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed. The decision of this Court in Municipal Corporation of Delhi v.Ghisa Ram : 1967CriLJ939 has no application to the facts of this case. In that case the sample of the vendor had in fact been sent to the Director of the Central Food Laboratory on his application but the Director had reported that the sample had become highly decomposed and could not be analysed. It is also evident from that case that the Food Inspector had not taken the precaution of adding the preservative. It appears from page 120 of the report that the elementary precaution of adding preservative to the sample which was given to the Respondent should necessarily have been taken by the Food Inspector, that if such precaution had been taken, the sample with the Respondent would have been available for analysis by the Director of the Central Food Laboratory and since the valuable right given to the vendor by Section 13(2) could not be availed of, the conviction was bad. No such defence is available to the Appellant in this case because not only is there evidence that the preservative formalin was added but the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory.”
8. Also in the case of, Ajit Prasad Ramkishan Singh v. The State of Maharashtra, AIR 1972 SC 1632, the Hon’ble Supreme Court observed thus, “6. In this appeal, counsel for the appellant contended that the appellant was deprived of his right to have the sample analysed by the Director on account of the delay in the service of summons. He said that the appellant was acquitted by the Magistrate because the Magistrate found that on account of the delay it would be a futile exercise to have sent the sample for analysis to the Director and as the laches of the complainant was the reason for the delay in the service of summons and the proximate cause of the appellant losing his right to get the part of the sample delivered to the vendor analysed by the Director, the appellant was entitled to be acquitted. He relied on
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the decision of this Court in Municipal Corporation of Delhi v. Ghisa Ram 1967CriLJ939 to support his contention. We do not think that the case would in any way assist the appellant. In that case, the part of the sample delivered to the vendor had been sent to the Director on the application of the vendor but, the Director reported that the sample had become highly decomposed and could not be analysed. It was not disputed in that case that the Food Inspector had not taken the precaution of adding the necessary preservative to the sample. So the Court held that the valuable right given to the vendor under Section 13(2) of the Act could not be availed of and that the conviction was bad. In the present case, the appellant never applied to the Court to have the part of the sample with him analysed by the Director. Section13(2) of the Act states : 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 the part of the sample mentioned in Sub-clause (i) or Sub-clause (iii) of clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of Sub-section (1) of Section 11 are intact and may then despatch the part 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 sample, specifying the result of analysis. It is clear from the Sub-section that the appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis. If he had made the
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application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, since the appellant never applied under Section 13(2) of the Act, he cannot complain that he has been deprived of any right. In Babulal Hargovindas v. The State of Gujarat 1971CriLJ1075 , Jaganmohan Reddy, J., speaking for the Court, said that unless an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director.
9. In a recent judgment of this Court in Nunhems India Pvt. Ltd. v. Seed Inspector, 2011 (1) JCC 677, in a case under Section 16 of the Seeds Act which is para materia with Section 13 of the Act, held thus,
“4. It is not the case of the Petitioner that the Petitioner was not sent a copy of the report of public analyst or the Petitioner applied to the court for sending sample to Central Seeds Laboratory for analysis after prosecution filed complaint before the court concerned. The contention of the Petitioner is that at the time of taking cognizance on the first date of hearing itself shelf-life of seeds had expired, the Petitioner was gravely prejudiced and as the right of the Petitioner as provided under Section 16 of the Seeds Act stood taken away. Thus, the complaint should be quashed.
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8. I am in agreement with the decision of Andhra Pradesh High Court that unless the accused /Petitioner makes an application to the court expressing his desire to send the sample for second opinion to Central Seeds Laboratory, the accused cannot claim that prejudice has been caused. I also consider that in this case, there was no delay on the part of the prosecution. The prosecution was launched well within time and the summons also would have been received by the company well within time. The company was not supposed to wait till next date of hearing for making an application. The company ought to have made application for sending the samples to Central Seeds Laboratory immediately on receipts of summons.”
10. In the present case, the petitioner admittedly did not file an application before the learned MM, within the statutory period to get the sample re-analyzed by the Central Food Laboratory. If the petitioner would have applied to get the sample analyzed by the Central Food Laboratory and on analysis, the Central Food Laboratory would have concluded that the sample was decomposed or not fit for analysis, prejudice could be said to have been caused to the petitioner as his valuable and statutory right under Section 13(2) of the Act would have been denied to him. However, that is not the case of the petitioner. Further, the cases relied upon by the learned senior counsel for the petitioner, namely Unique Parmaid Pvt. Ltd. (Supra), Gupta Chemicals (Supra), Northern Minerals Ltd. (Supra) are clearly distinguishable from the present case, as in all these cases, the accused had applied for the re-analysis of the sample. Further, they were either found decomposed by the Central Food Laboratory or the authorities delayed in sending the samples for analysis to the Central Food Laboratory, thus
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causing prejudice to the accused therein. The case of Handi Instant Foods (Supra) relied upon by the counsel for the petitioner is actually against the petitioner, as in Para 14 of the judgment it draws a similar conclusion that until the accused actually sends the sample for analysis to the Central Food Laboratory under Section 13(2) of the Act, it cannot be assumed that prejudice has been caused to the accused or his right under article 13(2) has been denied to him.
11. In view of the above discussion, though there was delay in filing of the complaint on behalf of the department and for which, the Secretary, Health Services is expected to take appropriate measures including enquiry, if any may be required to be initiated for the lapse, I do not see justifiable reason to exercise the powers under Section 482 CrPC to quash the complaint at its nascent stage. At this stage, when the summons have been issued by the Magistrate, the court is not required to sift the evidence meticulously to see as to whether the case would result in conviction or not. The prosecution cannot be deprived of its legitimate right of proving its case against the petitioners at the initial stage when it has not yet unfolded its evidence. For all these reasons, there is no merit in the petition and same is hereby dismissed.
M.L. MEHTA, J. JUNE 01, 2012 hg/ss

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