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2006 Supreme(AP) 1356
2006(3) L.S. 413 (D.B.)
IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH : : AT HYDERABAD
Present:
The Hon’ble Mr. Justice
A. Gopal Reddy &
The Hon’ble Dr. Justice
G. Yethi Rajulu
M/s. Handi Instant Foods,
Chennai ..Petitioner
Vs.
State of A.P., ..Respondent
Crl.P.No.2843/03 Date:15-11-2006
Mr.V.V.N. Narayana Rao, Advocate for the Petitioner.
Public Prosecutor for Respondent.
Headnote:FOOD ADULTERATION ACT, Sec.13(2) - FOOD ADULTERATION RULES, Rule 7(3) - CRIMINAL PROCEDURE CODE, Sec.482 - Complaint filed against accused/vendor and manufacturer for keeping adulterated Gulab Jamun Mix packets for sale for human consumption - Petitioner/manufacturer sought to quash proceedings on ground that there is abnormal delay in filing complaint before Magistrate after receipt of Public Analyst Report and he is deprived of opportunity to send sample to Central Food Laboratory for analysis as provided under Act.
Contention that on account of delay caused in launching prosecution a valuable right guaranteed u/Sec.13(2) of Act has been denied causing prejudice to petitioner and therefore prosecution cannot be maintained and is liable to be quashed.
Sec.13(2) of Act confers valuable right on accused under which accused can make application to Court within period of 10 days from receipt of copy of report of analyst to get samples of food analyzed in CFL and in case sample found by CFL unfit for analysis due to decomposition by passage of time or for any other reason attributable to lapses on side of prosecution that valuable right would stand denied and that would constitute prejudice to accused entitling him to acquittal, but mere delay as such will not per se be fatal to prosecution case even in cases where sample continues to remain fit for analysis inspite of delay because accused is no way prejudiced on merits of case in respect of such delay.
Prevention of Food Adulte-ration Act enacted by Parliament to prevent adulteration - Adulteration of Food stuffs was so rampant, widespread and persistent and there is need to take drastic remedy in form of legislation which is need of hour
to check this kind of anti-social evil.
Whenever there is report of analyst that food article is adulterated by date of filing complaint, there is prima facie material to show that accused committed offence and it is for accused to make application to send second sample to CFL for analysis by exercising his right provided
u/Sec.13(2) of Act and if CFL differs with view of Public Analyst, accused can be given benefit of doubt - If there is report from CFL and sending sample for analysis that food sample is not fit for analysis due to lapse of time accused is entitled for quashing proceedings - But without sending sample to Public Analyst either on ground that there was time gap from date of collecting sample and filing complaint, accused not entitled for quashing proceedings without showing prejudice has been caused on account of delay in filing complaint.
When complaint is filed under PFA Act against accused for adulteration of food article, prosecution not liable to be quashed against him on ground that he was denied right
u/Sec.13(2) of Act for sending second sample to CFL on account of delay caused in filing complaint and furnishing analyst report without there being any prejudice caused to him is shown.
(per the Hon’ble Dr.Justice
G. Yethirajulu)
This Criminal Petition has been filed under Section 482 of Cr.P.C. to quash the proceedings in C.C.No.150 of 2003 on the file of the Judicial Magistrate of First Class, Piler, Chittoor District.
2. The Food Inspector inspected the shop of A-1 and purchased Gulab Jamun Mix sealed packets, which were kept for sale for human consumption. The samples were sent to Public Analyst and the Analyst, after testing the sample, sent a report opining that the same is adulterated. After obtaining consent of the Director of Food and Health, Hyderabad, the complaint was filed against the accused including the manufacturer of the Gulab Jamun Mix packets. A notice under Section 13 (2) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’) has been issued to the vendor and the manufacturer. After launching of the prosecution, the manufacturer filed the present Criminal Petition to quash the proceedings under Section 482 of Cr.P.C. on the ground that there was abnormal delay in filing the complaint before the Magistrate after receipt of the Public Analyst Report and he was deprived of an opportunity to send the second sample to the Central Food Laboratory for analysis as provided under the Act.
3. The learned counsel for the petitioner relied on a Judgment of this Court in M/s. Handi Instant Foods, Chennai v. State of A.P. (Crl.P.No.2502 of 2003, dated 29-03-2006), wherein the prosecution initiated against the manufacturer was quashed by a learned single Judge of this Court on the ground that there was delay in launching the prosecution. The learned single Judge relied on a Judgment of the Supreme Court in NEBH RAJ V. THE STATE (DELHI ADMINISTRATION) AND ANOTHER(1) wherein the prosecution was directed to be quashed on the ground that the second sample was sent to the Central Food Laboratory three years after it was taken.
4. After hearing the submissions of the learned counsel for the petitioner, the learned Judge observed that though notice has been served on the petitioner under Section 13 (2) of the Act providing him ample opportunity to get the same tested, no steps have been taken by him. Unless the accused shows some prejudice, the delay itself cannot be a ground to quash the proceedings. Since the learned single Judge in CrI.P.No.2502 of 2003 came to a different conclusion, the learned single Judge requested that the matter may be placed before a Division bench for authoritative pronouncement on this aspect, therefore, the criminal petition came up for hearing before this Court to answer the following reference:
“Whether the prosecution under the Prevention of Food Adulteration Act can be quashed merely on the ground of delay in filing the complaint without there being any prejudice to the accused.”
5. The learned counsel for the petitioner submitted that under Section 13 (2) of the Act, a right has been provided to the petitioner to receive a copy of the report and if he is not satisfied with the report, to submit an application to the Court to send the second sample to the Central Food Laboratory for analysis. On account of the delay caused in launching the prosecution, a valuable right guaranteed under Section 13 (2) of the Act has been denied causing prejudice to the petitioner, therefore, the prosecution cannot be maintained and it is liable to be quashed. He further submitted that in various Judgments rendered by the learned single Judges of this Court, it was held that non-service of notice at the earliest possible time after receipt of the Analyst Report and inordinate delay in filing the prosecution resulted loosing certain ingredients of the food sample, therefore, the food sample is not fit to send it to the Central Food Laboratory. When once the food sample is not fit to send to the Central Food Laboratory or it could not be sent before the expiry period of the sample, the accused is denied a right to get the sample tested by the Central Food Laboratory which
