Orissa High Court
Afr Cargil India Pvt. Ltd vs State Of Odisha on 16 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.752 of 2005
AFR Cargil India Pvt. Ltd. .... Petitioner
Mr. Devashis Panda, Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. Pradip Kumar Rout, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:16.12.2022
1.
Invoking inherent jurisdiction of this Court, the petitioner has
assailed the impugned order dated 26th February, 2005 under
Annexure-1 passed in 2(C)CC No.2 of 2005 by the learned
S.D.J.M., Puri whereby the request for dropping of the proceeding
due to delay in sending the sample to the Central Food Laboratory
as no fruitful purpose would be served since it had outlived for the
said purpose was rejected being oblivious to the relevant provisions
of the Prevention of Food Adulteration Act, 1954 (hereinafter
referred to as 'the Act') and therefore, it is not tenable in law and
hence, liable to be set aside in the interest of justice.
2. In fact, a complaint was filed by the Food Inspector, who had
inspected M/s. Sarala Agencies suspected the stock to be
adulterated and collected samples of Mustard Oil, Refined Soyabin
Oil and Refined Sunflower of the brands specified and sent the
same to the Public Analyst, State Public Health Laboratory,
Bhubaneswar for testing. It is further made to appear that the Food
Inspector purchased the oil from the petitioner and collected the
invoice dated 9th June, 2004 and thereafter, he received the report
of the Public Analyst dated 7th August, 2004 with the result that the
Cargil India Pvt. Ltd. Vrs. State of Odisha
sample of Refined Sunflower oil (Nature Fresh Brand) was
adulterated as the quality fell below the prescribed standard and
then after obtaining sanction from the State Local Health Authority,
the complaint was filed in the court of learned S.D.J.M., Puri on 3rd
January, 2005 whereupon the court took cognizance of the
offence under Section 16 of the Act read with Rule 7 of the
Prevention of Food Adulteration Rules, 1955 (shortly as 'the Rules
of 1955'). Later thereto, an opportunity to have the sample sent to
the Central Food Laboratory was offered to the petitioner which
was availed by him on 20th January, 2005 by making an
application in terms of Section 13(2) of the Act. However,
sometime thereafter, the petitioner moved the learned court below
to drop the proceeding as it would be a futile exercise to send the
second sample to the Central Levorotary as the six months shelf-life
from the date of manufacture had since long expired, inasmuch as,
eight months elapsed not only from the date of manufacture but
also from the date of collecting the sample which may not be in a
fit condition for analysis. However, according to the petitioner, the
learned S.D.J.M. Puri vide the impugned order under Annexure-1
declined such a request and decided to allow the sample to be sent
to the Central Laboratory as it had already been ordered while
dealing with the application dated 20th January, 2005. Being
aggrieved of, the petitioner challenged it on a solitary ground that
the learned court below ought to have dropped the proceeding
instead of sending the sample to the Central Laboratory despite the
fact that there was expiry of six months shelf-life of the sample by
then and such analysis would be a failed exercised possibly with no
result. According to the learned court below such a move of the
application is incongruous to the earlier request for sending the
second sample for test and analysis and therefore, deemed it
proper to deny the relief sought for and to drop the proceeding as
was prayed for.
Cargil India Pvt. Ltd. Vrs. State of Odisha
3. Heard Mr. Devashis Panda, learned counsel for the petitioner
and Mr. P.K. Rout, learned AGA appearing for the State.
4. Mr. Panda, learned counsel for the petitioner submits that the
alleged purchase of oil by the Food Inspector was made on 7th
June, 2004 and then the Food Inspector sent it to the Laboratory
for analysis on 30th June, 2004 and the Public Analyst's report was
received with the finding that the sample of Refined Sunflower oil
was found to be adulterated as its quality was short of the
prescribed standard received by the Food Inspector on 20th August,
2004 and thereafter on 3rd December, 2004, the Joint Director,
Health Services (PH) and State Local Heath Authority, Orissa
consented for prosecution and finally the PR was filed before the
learned court below on 3rd January, 2005 and then on 20th
January, 2005, the application was moved to send the sample to
the Central Food Laboratory, however, shortly thereafter, another
application dated 2nd February, 2005 was filed to drop the
proceeding which was not entertained. Mr. Panda referring to the
scheme of the Act and after making the Court to go through the
relevant provisions thereof read with the Rules of 1955 contended
that the packed oil so collected by the Food Inspector carried the
month and year of manufacture which indicated its shelf-life and
according to Rule 32 of the Rules, 1955 Explanation VIII which
indicates the marketability and quality of the product best before
the date which signifies the end of the period under any stated
storage conditions. It is claimed by Mr. Panda that application
dated 20th January, 2005 was filed to avoid any finding to the
effect that such a statutory right as envisaged in Section 13(2) of the
Act has been waived but immediately moved the second
application dated 2nd February, 2005 for dropping of the
proceeding on the ground that shelf-life of the sample having
expired, further analysis would be a futile exercise as in number of
cases acquittal has been directed for having sent the samples for
Cargil India Pvt. Ltd. Vrs. State of Odisha
analysis after expiry of the shelf-life period. While advancing such
an argument, Mr. Panda cited the following decisions, such as,
Municipal Corporation of Delhi Vrs. Ghisa Ram decided by the
Apex Court in Cri. Appeal No.194 of 1996 and disposed of on 23rd
November, 1966; Nestle India Limited Vrs. Shri A.K. Chand, Food
Inspector and Another 1995 CriLJ 3053; Mohammad Zahir Vrs.
Food Inspector, Food Cell and Another deiced in Criminal Revision
No.225 of 2003 (dated 23rd April, 2004); The State of Assam Vrs.
Shri Shiew Kumar Jain and Shiv Kumar 1992 CriLJ 1479 besides an
order dated 18th July, 2017 of this Court in CRLMC No.839 of
2003 (Hindustan Coca Cola Beverages Pvt. Limited Vrs. State of
Orissa). Above all, one more decision in the case of PepsiCo India
Holding Private Limited Vrs. Food Inspector and another reported
in (2011) 1 SCC 176 is placed reliance on wherein the criminal
proceeding was quashed in absence of the method and parameters
adhered to for the purpose of analysis of the samples.
5. Per contra, Mr. Rout, AGA for the State submits that the learned
court below did not err and committed any illegality having
declined to drop the proceeding since the request for sending the
second sample to the Central Laboratory had already been allowed
by that time and that too it was on the request of the petitioner
who indeed availed the statutory right under Section 13(2) of the
Act. In other words, Mr. Rout, learned AGA justifies the impugned
order under Annexure-1.
6. By Section 13(2) of the Act, on receipt of report of the result of
the analysis under sub-section (1) to the effect that the article of
food is adulterated, the Local Health Authority shall after the
institution of prosecution forward a copy of the said report to the
person concerned informing him that if he so desired to make an
application to the court within ten days of the date of receipt of
such report to get the sample analyzed by the Central Food
Cargil India Pvt. Ltd. Vrs. State of Odisha
Laboratory. In the instant case, such an application was made by
the petitioner but thereafter applied for dropping of the criminal
prosecution. The said statutory right under Section 13(2) was
availed of on 20th January, 2005 but after realizing the fact that the
shelf-life had expired in the meantime, the petitioner applied for
closure of the proceeding. There is no denial to the fact that the
sample oil was collected on 29th June, 2004 with a manufacture
month and year of May, 2004 and by the time, the prosecution
had been launched which was on 31st December, 2004, there was
expiry of the shelf-life period of six months. The question is,
whether, under the above circumstances when the complaint was
filed long after period from of fitness of consumption with a shelf-
life indicated in the sample packet, any purpose would be achieved
in the continuance of the proceeding as the result of the Central
Laboratory might not yield any useful purpose?
7. Exercise of jurisdiction under Section 482 Cr.P.C. is well defined
by catena of decisions and more prominently in the case of State of
Haryana Vrs. Ch. Bhajan Lal reported in 1992 Supp (1) SCC335. In
fact, such jurisdiction has not been conferred on the High Courts
but it only reminds that the Court is possessed of such power to be
exercised to give effect to an order under the Code; to prevent
abuse of process of Court; and to otherwise secure the ends of
justice. The jurisdiction under Section 482 Cr.P.C. is to do real and
substantial justice for the administration of which alone the Courts
exist. However, there is a rider that inherent jurisdiction which is so
wide and expansive, it has to be exercised sparingly which has been
reiterated time and again in plethora of decisions of the Supreme
Court. It is a settled law that the Court would be justified in
exercising the inherent jurisdiction for quashing of a criminal
proceeding subject to satisfaction that denial of it would
tantamount to abuse of process of law or otherwise needed to
advance the cause of justice.
Cargil India Pvt. Ltd. Vrs. State of Odisha
8. In Nestle India Limited (supra), the legality of the criminal
proceeding was challenged in respect of the prosecution under the
Act and therein the food item was stated to have been
manufactured in the month of 1992 with a declaration on the
package that the same would be fit for consumption within nine
months from the date of manufacture and the sample was collected
in the September, 1992 and the prosecution report was prepared
next year in the same month and thereafter the complaint was
instituted on 10th September, 1992 and under the circumstances and
with a conclusion that such a criminal action was initiated long
after the period of consumption, quashed the proceeding since the
allegation would be indefensible. In Shiew Kumar Jain (supra), the
Gauhati High Court concluded that there is a limitation prescribed
in the Act and Rules of 1955 prescribing the Public Analyst to
submit the report within the stipulated time and in case of non-
compliance thereof, the finding would be vitiated. In the case at
hand, the sample was collected and it was sent to the Public
Analyst, whose report was received in the month of August, 2004.
The same was dispatched in the month of June, 2004 and the
report was received in August, 2004, however, the present
challenge is not on the ground of non-compliance of any such
provision of the Act and Rules leading as was in the case of Shiew
Kumar Jain. But the purpose of reliance of the aforesaid decision is
to suggest that due to passage of time, articles of food deteriorate
and therefore, the Legislature fixed an outer limit for getting the
samples tested scientifically in order to find out if they are
adulterated or otherwise. In the present case, the contention is that
there is a shelf-life in the package of the oil manufactured in May,
2004 and sending the sample in February, 2005 close to a year
after would be an exercise which might not bring any positive
result of adulteration. In Mohammad Zahir case (supra), this Court
had the occasion to examine the delay aspect with reference to
Cargil India Pvt. Ltd. Vrs. State of Odisha
Section 13(2-A) of the Act which stipulates that the Court shall
require the Local Health Authority to forward the sample kept by
the authority upon a requisition made in that respect within a
period of five days from the date of receipt of such requisition. It
has been held therein that violation of Section 13(2-A) of the Act is
likely to cause serious prejudice to the rights of the accused and
even if the accused is tried on the complaint of the Food Inspector,
no conviction could be recorded against him on the basis of such
report which though continues to be a piece of evidence and hence
concluded that any such continuation of the proceeding would
amount to abuse of process of the Court. It is claimed that there
has been delay of eight months in lodging the complaint since the
date of manufacture and in the meanwhile, the period of fitness of
consumption had lapsed and as such, the valuable right of the
petitioner conferred under Section 13(2) of the Act read with Rule
7(3) of the Rules, 1955 is violated. In the decision (supra), the
accused had not made an application for sending the sample to the
Central Food Laboratory and for other reasons, the Apex Court
held that he could not be said to have been prejudiced for any such
delay in view of Section 13(2) of the Act. In Hyderabad Beverages
Private Limited etc. Vrs. State of U.P. 2006 CriLJ 3988, the A.P.
High Court declined to quash the prosecution for delay in
furnishing the copy of the report of the Public Analyst beyond
expiry of best before date or shelf-life of the product.
9. The law is well settled that the accused is having an invaluable
right under Section 13(2) of the Act to submit a requisition for
direction to the authority by the Court to forward the sample to
the Central Food Laboratory. In fact, the Local Health Authority is
to inform the person the rights to send the sample to the Central
Food Laboratory and to make an application within the stipulated
time for scientific analysis in view of Section 13(2) of the Act and it
shall be forwarded on receiving a requisition in terms of sub-section
Cargil India Pvt. Ltd. Vrs. State of Odisha
(2-A) thereof. Herein the petitioner no doubt submitted the
requisition but then claimed for dropping of the prosecution on
expiry of the shelf-life period of the sample oil referring to its date
of month of manufacture. It is not necessarily that in all cases that a
sample is held to be unsuitable for test and analysis after expiry of
the shelf-life period which is what has been held in M/s Hyderabad
Beverages Pvt. Ltd. The reason being a food article is held to be
best before use a particular period for the purpose of human
consumption but that does not mean that it has become unsuitable
for analysis to find out whether the same is adulterated or not. An
article of food would still be sent for analysis on a requisition made
under Section 13(2-A) of the Act even after expiry of the best
before use date or its shelf-life if such a request is made in terms of
Act and according to the Rules 1955. Some amount of delay from
the best before use date cannot be a justifiable ground to reject a
criminal prosecution. Though the petitioner applied for sending the
sample after receiving a report of the public analyst, however,
challenged the action on account of delay of eight months, the
Court is of the view that it cannot and could not have been a
ground to drop the proceeding. However, it is contended that
DGHS method was adopted which was conveniently followed
having no support of law and that too in absence of any prescribed
mode of analysis under Section 23(1A)(hh) of the Act and in that
connection, the decision of PepsiCo India Holding Private Limited
(supra) is placed reliance on, wherein, it is observed that in absence
of parameters which ought to have been defined by the Central
Government under Section 23(1A)(hh) & (ee) of the Act, samples
could not be considered as adulterated. It is further added that
relying on the above decision, this Court in Ashok Khandelwal Vrs.
P.Singh & Another reported in 2018 (2) FAC 215 quashed the
proceeding. It is not denied by the State that the Public Analyst
failed to submit the report within the time limit as prescribed in
Cargil India Pvt. Ltd. Vrs. State of Odisha
Rule 7(3) of the Rules, 1955 which is required to be adhered to. It
is also not drawn to the notice of the Court if the sample was
added with any preservative. In the above fact situation, when the
complaint is lodged after 8 months, the re-testing by the Central
Laboratory might not have yielded a positive result. That apart, the
decision in Babu Lal Hargovindas Vrs. State of Gujarat AIR 1971 SC
1277 is sought to be distinguished by the defence and also the
inapplicability of the judgment of State of Gujarat &Another Vrs.
Saileshbhai Mansukhlal Shah reported in 2007(7) SCC 71 as to the
obligation to deposit the amount for sending the sample for testing
as the earlier decision in J. Kutty Vrs. State of Kerala FAC
1991(1)133 was prevalent. In any ways, there has been undue delay
by passage of time for the sample to be re-tested in the Central
Food Laboratory. Would any purpose still be served in sending the
sample for analysis on the application under Section 13(2-A) of the
Act at this distant point of time? The answer is not in the
affirmative considering the totality of the facts and circumstances of
the case and the Court after bestowing anxious consideration to all
the aspects is of the considered view that the criminal proceeding
should be terminated in exercise of its inherent jurisdiction.
10. Accordingly, it is ordered.
11. In the result, the CRLMC stands allowed. As a logical sequitur,
the impugned order dated 26th February, 2005 under Annexure-1
and the entire criminal proceeding in connection with 2(C) CC
No.2 of 2005 pending in the file of the learned S.D.J.M., Puri is
hereby quashed.
(R.K. Pattanaik)
Judge
TUDU
