Y.V.S.S.Subba Rao vs State Of Ap.,
2021 Latest Caselaw 3368 Tel

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

            CRIMINAL PETITION No.11420 of 2013
ORDER:

This petition is filed by the petitioners - A2 and A3 under

Section 482 Cr.P.C. for quashing the proceedings against them in CC

No.77 of 2006 on the file of the Judicial Magistrate of First Class,

Mulugu, Warangal District.

2. The case of the prosecution in brief was that on 25.08.2005

at 4.00 PM, the complainant i.e. Food Inspector, Division-III,

Warangal District, along with his attender visited the shop of A1 i.e.

M/s.Manikanta Cool Drinks D.No.1-124, Main Road, Mallampally

Village & Mandal, Warangal District and purchased six sealed pet

bottles of Kinley Club Soda for Rs.36/- and sent three bottles for

analysis on 27.08.2005 along with Form - VII. On the basis of label

declaration of the manufacturer, notice in Form - VI was sent to A3 -

M/s. Hindustan Coca-Cola Beverages (P) Ltd., Moulali, Hyderabad.

on 27.08.2005. A2 was the Quality Assuring Manager/ Nominee of

A3. The Public Analyst vide report dated 04.10.2005 opined that the

contents of the sample did not confirm to the standards of total plate

count, Coliform count and contained E-coli, a pathogenic organism

which was injurious to health and therefore, adulterated. The Director

accorded consent for prosecution on 16.02.2006. The complaint was

filed by the Food Inspector, Warangal District before the Court of

Judicial Magistrate of First Class, Mulugu, Warangal, on 28.03.2006

and cognizance was taken by the said Court against A1 to A3 for the Dr.GRR,J

offence under Sections 2(ia)(h) and 7(i) of Prevention of Food

Adulteration Act, 1954 (for short 'PFA Act'). Notice under Section

13 (2) was issued to the accused on 25.04.2006.

3. Heard the leaned counsel for the petitioners and the learned

Public Prosecutor.

4. Learned counsel for the petitioners submitted that the

complaint was filed after an unreasonable and unexplained delay of 7

months 3 days from the date of receipt of collection of sample on

25.08.2005, the shelf life of the beverage was only 2 ½ months from

the date of packing and it lapsed even before issuance of notice under

Section 13(2) of the PFA Act. As per Section 13 (2) of the PFA Act,

the accused had right to make an application to the Court within a

period of 10 days from the date of receipt of copy of the report to get

the sample of the article of the food analysed by the Central Food

Laboratory. After lapse of 2 ½ months shelf life period, the product

might not retain the specific qualities and standards prescribed. Even

if the sample was analysed by the Central Food Laboratory, the

correct standards could not be obtained, thus the right conferred on the

accused under Section 13 (2) of the PFA Act became illusory and

frustrated. The delay in serving the analyst's report defeated the

valuable right of the accused to send the remaining sample to the

Central Food Laboratory. He further contended that A2 and A3 were

impleaded only on the basis of label declaration as per the complaint

which was wholly impermissible in law in view of specific provision Dr.GRR,J

under Section 14 (A) of the Act, without any material to establish the

fact that the property in question was manufactured by the petitioners.

It was not open to the respondent to implead the petitioners without

ascertaining the details of manufacturer from the purchaser from

whom the property in question was purchased. In the absence of any

proof of purchase or to connect the petitioners as manufacturer, the

prosecution against the petitioners was an abuse of process of law and

the prosecution was liable to be quashed.

5. The learned Public Prosecutor submitted that A1 was

convicted by the trial Court and there was a manufacturing defect in

the product. Issuing notice was only a technical issue and prayed to

permit the trial to be continued.

6. Perused the record. The record would disclose that the Food

Inspector visited the shop of A1 on 25.08.2005 at 4.00 PM and

purchased 6 sealed bottles of Kinley Club Soda for analysis and paid

Rs.36/- towards its cost to A1 and served a notice in Form - VI on A1

and collected 3 samples and sent one part of the sealed sample to the

Public Analyst on 27.08.2005 and deposited the remaining two

samples with Local (Health) Authority, Warangal. As per the

complaint, A1 had not produced any purchase bill. As such, the

complainant sent a notice in Form - VI to the manufacturer of Kinley

Club Soda as per label declaration intimating about the collection of

sample from the shop of A1. The Public Analyst, after analysis of the

sample gave report dated 04.10.2005 to the Local (Health) Authority, Dr.GRR,J

Zone-V, Warangal. The Local (Health) Authority received the said

report on 19.10.2005 and forwarded the same to the complainant. On

11.11.2005, the complainant sent a report to the State Food (Health)

Authority seeking written consent under Section 20(i) of the PFA Act.

The State Food (Health) Authority, A.P., Hyderabad accorded written

consent order for launching prosecution against A1 to A3 vide order,

dated 16.02.2006. The complainant filed the private complaint

against A1 to A3 under Sections 2(ia)(h) and 7(i) of the PFA Act.

7. Learned counsel for the petitioners relied upon the judgment

of the High Court of Andhra Pradesh in Ruchi Infrastructure Ltd.,

Kakinada v. State of A.P. and another1, wherein it was held:

" Section 11(4) of the Act mandates that an article of food seized under Sub-section 4 of Section 10 and any adulterant seized under Sub-section 6 of Section 10 shall be produced before a magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the Public Analyst. However, the seized sample, admittedly, was not produced before the court within seven days as required under Sub-section 4 of Section 11, but was placed before the court on 02.05.2006 when the complaint was filed. Thus, there has been a clear violation of the mandatory stipulation contained under Section 11(4) of the Act regarding production of the sample before the court. It is also not disputed that the label contains a caution that it is best for use before 18 months thereby indicating that the contents of the sample would be in tact without undergoing any process of degeneration or decomposition for a period of 18 months from the date of manufacture. In the present case, the sample was placed before the court almost more than 1 ½ years after it was taken and the report of the Public Analyst was received. The inordinate delay of more than 1 ½ years in producing the sample before the court from the date of taking the sample and also from the date of receipt of the Public Analyst report would certainly cause prejudice to the accused which is detrimental to his defence, inasmuch as there is every likelihood of the contents getting degenerated or decomposed. There is absolutely no explanation afforded by the respondent for the abnormal delay in production of the sample before the court, especially, when the packing label cautions that the contents are best for use before 18 months only. The accused is, therefore, deprived of his valuable

2008 (1) ALD (Crl.) 197 (AP) Dr.GRR,J

right under Section 13(2) of the Act to seek permission to send the sample for second analysis to the Central Food Laboratory."

8. In the present case also the shelf life of the product Kinley

Club Soda was 2 ½ months from the date of manufacture on

27.06.2005. The sample was drawn on 25.08.2005 and it was sent to

the Public Analyst on 27.08.2005. But the report of the Public

Analyst was obtained on 04.10.2005 i.e. after expiry of the shelf life

of the product. Thus, there is every likelihood of the contents

degenerated or decomposed by the date the Analyst had examined the

product and gave his report and for the said reason, the sample might

not have confirmed to the standards prescribed and contained E-coli,

a pathogenic organism which was injurious to health. There was

delay in obtaining the sanction also. The sanction was given by the

Director on 16.02.2006 with a delay of more than 4 months after

receiving the Public Analyst's report. The complaint was filed on

28.03.2006 and a notice under Section 13(2) of the PFA Act was

issued to the accused on 25.04.2006. Thus, there was a delay of 7

months 3 days from the date of receipt of collection of sample till the

date of sending notice to the accused on 25.04.2006. Under Section

13(2) of the PFA Act the accused has a right to make an application to

the Court within a period of 10 days from the date of receipt of the

copy of the report to get the sample of the article of the food analysed

by the Central Food Laboratory. The delay in serving the Analyst's

report defeated the valuable right of the accused.

Dr.GRR,J

9. The Hon'ble High Court of A.P. in Konda Suryanarayana

and others v. State of A.P.2, by relying on the judgment of the

Hon'ble Apex Court in Nebi Raj v. State (Delhi Administration)

[AIR 1981 SC 611] observed that:

"... for a period of 2 years 9 months after receipt of analyst report, the Food Inspector kept quiet without filing the complaint and without serving the copy of the analyst report.

Therefore, the accused has lost his valuable right of sending the remaining sample to the Central Food Laboratory because no useful purpose would be served by sending the sample vanaspathi for analysis after a period of 2 years 9 months",

and quashed the charge sheet in the said case.

10. Learned counsel for the petitioners also relied upon a

judgment of the High Court of A.P. in P.Gopalakrishna and another

v. Food Inspector, Division-III Office of the Assistant Food

Controller Zone-I, Visakhapatnam and another3 wherein it was

held that:

5. "Even according to the complaint, lable declaration is to the effect that the product was manufactured on 1.6.2006 and it is best before 12 months from the date of the manufacture. The shelf life of the product expired on 1.6.2007 and the complaint was filed on 20.8.2007, nearly two months after the shelf life. The Central Food Laboratory examined the sample on 7.1.2008, nearly 7 months after the expiry of shelf life. Because of the delay, there must have been variation in the standards prescribed. Two reports have given different results. As the complaint and notice under Section 13(2) of the Act was given after shelf life of the product, the petitioners could not apply to the Central Food Laboratory within a period of shelf life. Though the Public Analyst report is dated 10.11.2006, the complaint was filed only on 20.8.2007. Petitioners who are said to be manufacturers of the product lifted by the Food Inspector, can be proceeded against only if the provisions of the 14-A of the Act are complied with. Since there is nothing on record to show that the products purchased by the Food Inspector was supplied by the petitioner to Accused No.1 and since admittedly A-1 did not produce any bill and has not disclosed the name and

2006 Crl.L.J.1870

2011 (2) ALD (Crl.)565 (AP) Dr.GRR,J

addresses of the supplier of the product lifted by the Food Inspector from him, it cannot be said that they supplied the product to accused No.1 for public sale. So, Accused No.1 assuming that all the allegations in the complaint are true, the petitioners cannot be said to have committed an offence under the Act, in view of issuance of notice under Section 13(2) of the Act, which was given after shelf life of the product was expired. Therefore, the petitioners could not have been applied for Central Food Laboratory within a period of shelf life. Therefore, the petitioners cannot be said to have committed the offence under the Act and as such no prosecution could be launched against the petitioners only on the basis of lable declaration alone and therefore, continuation of proceedings against the petitioners is nothing but abuse of process of the Court. Accordingly, the charge sheet in C.C.No. 88 of 2007 on the file of the Judicial Magistrate of First Class, Araku Valley, Visakhapatnam district is liable to be quashed."

11. The above case is also applicable on the aspect that the

mandatory provisions of Section 14-A of the PFA Act are violated. In

the present case also A2 and A3 were charged as per the label

declaration found on the product seized by the complainant from the

shop of A1. No bills were collected showing that A1 purchased the

said product from A2 and A3. No connection between A1 and A3

company was stated in the complaint. On this aspect also, the

proceedings are liable to be quashed.

12. Learned counsel for the petitioners relied upon a judgment

of the High Court of A.P. in Pydi Prasada Rao and another v. State

of Andhra Pradesh4, wherein it was held that:

"7. However, there is a vital link between the filing of the complaint and the date of the report of the analyst. The learned counsel for the petitioners pointed out that notice u/s. 13(2) the Act was not issued. Section 13 (2) notice is mandatory. Further, Section 13 (2) notice is expected to be issued within 10 days from the date of the report of the analyst. The purpose of notice is to enable the petitioners to seek to send another sample for analysis and report, if necessary, from a different analyst. While so, whereas the analyst analyzed the sample on 30.05.2005, the

2011 (2) ALD (Crl.) 185 (AP) Dr.GRR,J

complaint was laid on 26.04.2007, so much so the petitioners lost their valuable right to seek to send another sample for analysis. Where Section 13 (2) of the Act notice is mandatory and where such a notice admittedly was not issued, the prosecution launched against the petitioners becomes illegal and is liable to be quashed. The contention of the learned counsel for the petitioners that the prosecution violated the provisions of Section 13 (2) of the Act and that the complaint consequently is liable to be quashed deserves to be accepted."

13. The facts of the above case are also applicable to the facts

of the present case.

14. Learned counsel for the petitioners also relied upon the

judgment of the High Court of A.P. in M. Jaipal Reddy and another

v. State of Andhra Pradesh5, wherein it was held that:

"7. As stated supra, the petitioners who are manufacturers of the product lifted by the Food Inspector can be proceeded against only if the provisions of Section 14-A of the Act are complied with. Since there is nothing on record to show that the product purchased by the Food Inspector was supplied by the petitioners to accused Nos.1 and 2 and since admittedly accused Nos.1 and 2 did not produce any bill and for not disclosing the name and address of the supplier of the product lifted by the Food Inspector from them, it cannot be said that they supplied the product to accused Nos. 1 and 2 for public sale. As the respondent has miserably failed to follow the mandatory procedure prescribed under the Act, the proceedings as initiated by the respondent in C.C.No. 746 of 2003 on the file of the Additional Judicial Magistrate of First Class, West & South, Kothapet, Ranga Reddy District has no legs to stand. Therefore, the petitioners cannot be said to have committed any offence under the Act and accordingly, the charge sheet against them is liable to be quashed."

15. Thus, due to violations of the mandatory requirements

under Sections 13(2) and 14-A of the PFA Act, the petitioners lost

their valuable right to send another sample for analysis and as the

charge sheet is filed against them without any bill produced by A1,

the proceedings initiated by the respondent in CC No.77 of 2006 on

2011 (2) ALD (Crl.) 868 (AP) Dr.GRR,J

the file of the Judicial Magistrate of First Class at Mulugu, Warangal

District has no legs to stand and hence, liable to be quashed.

16. In the result, the Criminal Petition is allowed quashing the

proceedings in CC No.77 of 2006 on the file of the Judicial Magistrate

of First Class, Mulugu, Warangal District, against the petitioners -

Accused Nos.2 and 3.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J November 11, 2021 KTL