1. The petition is filed for relief of quashing of the proceeding of complaint bearing R.C.C. No.163/2006 which is pending in the Court of Judicial Magistrate, First Class, Bhusawal[hereinafter referred to as 'J.M.F.C.']. The order dated 16.4.2012 passed by the learned Additional Sessions Judge is also challenged. The learned Additional Sessions Judge has dismissed the Criminal Revision Application No.83/2010 filed by the present petitioners against the order of framing charge made by the learned J.M.F.C. for the offences punishable under section 7 r/w. 16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). Both the sides are heard.
2. The complaint is filed by Food Inspector appointed under the provisions of the Act. The accused No.1 - Ashok Agrawal, vendor and proprietor of M/s. Agrasen Provision, owns and runs shop near S.T. Stand at Bodwad. He stores and sells soya oil. Petitioner No.1 - M/s. Padmavati Oil (India) Ltd. is the manufacturer of refined soya oil and accused No.2 - Sudhakar Choudhari is nominee of the manufacturer for the area where the shop of accused No.1 - Ashok is situated.
3. The Food Inspector visited the premises of M/s. Agrasen Provision on 30.12.2003 and he demanded and purchased 1500 M.L. of soya oil (3 packets of 500 M.L. each) manufactured by accused company. After following the procedure, one packet was sent to Public Analyst on 31.12.2003. Report of Public Analyst was received and it was dated 31.1.2004. The report is to the effect that sample does not conform to the standards of soyabeen oil (soya) as per Item No.A. 17.13 of Appendix 'B' of the P.F.A. Rules, 1955. The matter was processed for obtaining consent for filing prosecution. The consent was received on 21.12.2005 and the complaint came to be filed on 24.4.2006.
4. It is the contention of the petitioners, who are manufacturer and nominee of manufacturer that the notice was issued under section 13 (2) of the Act on 25.4.2006 to inform about the initiation of prosecution and this was done after the expiry of shelf life period of the oil taken as a sample. When the objection was filed, as per the case of petitioners, the sample was not sent to Central Food Laboratory (hereinafter referred to as 'CFL') for reanalysis. The submissions were made in this proceeding that the sample was actually sent to CFL and the report is received from CFL which is in conformity with the report given by the Public Analyst.
5. It is the case of petitioners that the best before date had expired long back before the date of complaint and so, there was no possibility of exercising the right by the accused which is given under section 13(2) of the Act. It is contended that the product must have been deteriorated and it must have become unfit for analysis. Reliance is placed on some reported cases and only on this ground, the aforesaid relief is claimed.
6. Copy of report of Public Analyst is on the record and it shows that the Iodine value was 86.71 as against the prescribed standard of 120 to 141. It is not in conformity with the standards of soyabean (soya) oil as per Item No.A. 17.13 of Appendix 'B' of the P.F.A. Rules, 1955. Now CFL has also given similar report as per the submissions made by the learned counsel for the petitioners.
7. This Court had an opportunity to consider the similar point raised in Criminal Application No.230/2012 and other proceedings [between Arvind Shankar Manegaonkar Vs. the State of Maharashtra] decided on 5.11.2014. This Court has made following observations:-
"6) For the considering the submissions made by the learned counsel for the applicants, the provisions of the Act and the Rules need to be seen. The term 'adulterated' is defined in section 2(ia) and the relevant portion is as under :-
"2. (ia) "adulterated"- an article of food shall be deemed to be adulterated:-
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or represented to be;
(b) ...........
(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;"
"The term 'misbranded' is defined in section 2(ix) and the relevant portion for the present matters is as under:-
"2. (ix) "misbranded"- an article of food shall be deemed to be misbranded -
(a) ............
(c) if it is sold by a name which belongs to another article of food;
(d) .....
(e) if false claims are made for it upon the label or otherwise;"
"Section 7 of the Act prohibits the manufacture, sale etc. of certain articles of the food and the relevant portion of this section is as under:-
"7. Prohibition of manufacture, sale, etc. of certain articles of food :- No person shall himself or by any person on his behalf, manufacture for sale or store, sell or distribute :-
(i) any adulterated food;
(ii) any misbranded food;
(iii) ............
Explanation: - For the purpose of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article of food for sale."
"7. For the offence made punishable under section 7, no 'mens rea' is required to be proved. Thus, in such a case, the prosecution is required to make out the case of contravention of some provisions of sections of the Act, Rules and if, there is such contravention, the Court is not expected to quash the proceeding. In the case reported as AIR 1971 SUPREME COURT 2346 [Andhra Pradesh Grain and Seed Merchants Association and Ors. Vs. Union of India and Anr.] and in the case reported as AIR 1961 Supreme Court 631 [Sarjoo Prasad Vs. The State of Utter Pradesh], the Apex Court has made interpretation and has discussed constitutional validity of relevant provisions."
"8. When the contravention of the provisions of the Act and the Rules is there, the argument of the learned counsel for the accused that the food article was not injurious to health, cannot be accepted as there is strict liability for the contravention. So, if the offence is made out from the material collected and which is mentioned in the complaint, the cognizance can be taken and such cognizance cannot be called as bad and even, this Court is not expected to quash the proceeding. It needs to be kept in mind that when there is report of Analyst, the burden is on the accused to prove that there was no adulteration or the adulteration was found due to natural causes for which the accused is not responsible."
"9. The provision of section 13(2) of the Act is as under :-
"13. Report of public analyst :- (1) ............
(2) On receipt of the 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 against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. "
"The provision shows that the Local (Health) Authority needs to inform to the accused about the report of analysis and within a period of ten days of the receipt of the intimation, the accused is expected to exercise his right for sending the second sample to Central Food Laboratory. The provision shows that the accused needs to file application for exercising the right and he is expected to pay the charges for the same. The provision of section 13 (5) and remaining part of section 13 come in to play if accused does not exercise the right given to the accused under section 13 (2). The provision of section 13 (5) runs as under :-
"(5) Any document purporting to be a report signed by a public analyst unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein in any proceeding under this Act or under section 272 to 276 of the Indian Penal Code (45 of 1860). "
"So, if the accused does not exercise the right given under section 13(2) of the Act, the report of the Public Analyst needs to be used as evidence against the accused."
"10. So far as the defence taken by the accused in respect of late filing of the complaint, filing of the complaint after expiry of shelf life period of food article is concerned, the nature of adulteration as described in Rule 55 needs to be seen. In case of the food article like mixed fruit jam or orange marmalade, it is laid down in Rule 55 of the Rules that the preservative like sulfur dioxide or (underline added) benzoic acid can be used. If the preservative is sulfur dioxide, then its quantity should not exceed 40 ppm and if it is benzoic acid, its quantity should not exceed 200 ppm. In the first case, the quantity of sulpur dioxide was found 54.65 ppm and in the second case, the quantity of sulpur dioxide was 68.5 ppm and further benzoic acid was used and its quantity was 52.55 ppm. Thus, there was clear contravention of Rule 55. The third case is of misbranding and altogether different substance is found in the bottle and as both 'Vanaspati' and 'cream' are defined under different provisions, there is no need of more discussion of the report given by Public Analyst."
"11. In the first two proceedings, the contention of the applicant is that due to delay caused in filing the complaint, which was filed apparently after the shelf life period of the food article, there was no opportunity to the applicants to send second sample for analysis as provided under section 13 of the Act. It was submitted that it needs to be presumed that the sample had become unfit for testing.
12) ..........
13) ..........
14) The relevant provisions of the Act and the Rules show that nowhere in the scheme of the Act and the Rules, it is mentioned that after particular period of the date of manufacture, it needs to be presumed that the sample cannot be analysed for any purpose. If the definition of 'adulteration' is considered and the relevant Rules are considered, it can be said that the adulteration may be of many kinds."
"15. The proviso to section 13(5) of the Act runs as under :-
"Provided that any document purporting to be certificate signed by the Director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1A)of section 16] shall be final and conclusive evidence of the facts stated therein. Explanation:- In this section, and in clause (f) of sub-section (1) of section 16. "Director of the Central Food Laboratory", shall include the officer for the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government, for the purposes of this section."
"Section 114, illustration (e) of the Evidence Act is also available for use of the report of Public Analyst. The rules of evidence, the procedure given in Cr.P.C. and the provisions of the Act can lead to only one inference that Court is required to decide the question whether or not there was adulteration. For deciding this question, the Court is expected to use the expert opinion. If the legislature has given safeguards, some rights to the accused, those needs to be used as per the provisions made in the Act and the Rules. The Court cannot presume that the prejudice is caused to the accused due to the circumstance like delay caused in filing of the case in every case. Considering the object behind the Act, it is necessary for the Courts to keep in mind that it needs to be left with the legislature to declare as to what is harmful and what needs to be prevented under such Act."
"16. When it is the case of use of preservative and the preservative is used beyond permissible limit, the aforesaid position of law needs to be kept in mind. The preservative like sulpur dioxide is chemical substance and so, it is up to the accused to show that due to the delay caused in analysis, the sample must have become unfit and sample must have deteriorated due to natural process and so, the quantity of SO2 used initially cannot be ascertained in such a sample. The Court cannot presume that such change might have occurred. The aforesaid provisions show that the Court is expected to leave such point to the expert. Thus, different cases of food adulteration need to be dealt with differently. In the present case, it can not be presumed that sample must have become unfit on the date of filing of complaints. It was up to the expert to say whether sample had been unfit. In view of this position of law and the facts and circumstances of the case, this Court has no hesitation to observe that the proceedings cannot be quashed and the order of issue process cannot be set aside. Quashing of proceeding on such a ground will be playing in the hands of complainant side and accused."
"17. Though the other ground was not argued, there is ground mentioned in the application that the applicants are entitled to the relief due to delay caused in the trial of the case. It has become necessary to observe that many such cases are pending in the Trial Courts and in many cases, the proceedings are filed even in this Court and proceedings filed in the Courts are pending for more than 10 years or so and in many cases stay is granted by this Court. When the samples were taken prior to year 1999 and the cases were filed in the year 1999 and 2001, the applicants approached this Court in the year 2012. Even when stay is not granted, the Courts of subordinate judiciary are reluctant to proceed with the matter only due to pendency of such matter. The persons involved as accused in such cases are ordinarily rich and they play all tactics to see that the cases do not make progress. The proceedings like present one are filed when the matters become old and the trial court starts insisting for making progress in the matters. This Court has no hesitation to observe that many interesting facts will come out if the relevant data in this regard is collected and some research is made. This Court has no hesitation to observe that only on the ground of delay caused in conducting the trial, such cases cannot be quashed as the legislation is in public interest."
8. In the present case, there is the allegation that soya oil was not as per the standards prescribed by the P.F.A. Rules. Iodine value was below the expected standards. So, it is up to the accused to show that due to delay caused in analysis, the sample had become unfit for analysis when he sent the second sample to CFL. Now the expert report of CFL is there as per the statement made by learned counsel for petitioner and it is not to the effect that sample was unfit for analysis. So, on the contention made by the accused, the prosecution cannot be quashed.
9. On the other hand, the learned counsel for petitioners placed reliance on the case reported as AIR 1976 SUPREME COURT 970 [Municipal Corporation of Delhi Vs. Ghisa Ram]. In that case, the food article was curd and it was contended by the vendor that it was prepared from pure cow's milk. The conviction was challenged and in view of the circumstance like inordinate delay caused in prosecution, it was observed that the accused had virtually lost the right given under section 13(2) of the Act and so, he was entitled to acquittal. Similar observations are made in the case reported as [1970 Mh.L.J. 229] by Bombay High Court [State of Maharashtra Vs. Bhagvandas Gopaldas Bhate]. The product involved was Deshi butter. The sample was found to be substandard. It can be said that in respect of the milk product the opinion of the expert can be obtained to ascertain as to whether the sample had deteriorated due to natural processes and so, it must not have remained of expected standards after expiry of the period mentioned in those cases. In the second case, the acquittal given by J.M.F.C. on that ground was confirmed.
Reliance was also placed on the case reported as [1982 Mh.L.J. 181] Bombay High Court [Radhelal Jagannath Bitholia Vs. State of Maharashtra]. In that case also, food article milk was involved and it was held that sample of milk even after addition of formalin had not remained fit for analysis six months after taking of the sample and so the right of the accused was frustrated. In the case reported as LAWS (ALL)-1982-4-42 HIGH COURT OF ALLAHABAD [Baij Nath Vs. State of Uttar Pradesh] food article jeera was involved. The facts were different and it was found that phial, in which sample was kept, was in broken condition and it was not in dispatchable condition. There was no evidence to show that jeera, in any manner, had not deteriorated or it was same jeera which was taken by Food Inspector from the vendor. In view of these circumstances, the sentence was set aside and accused was acquitted.
In the case reported as 1999 (8) SCC 190 [State of Haryana Vs. Unique Farmaid Private Limited] the provisions of Insecticides Act, 1978 are considered and discussed. In that case, the expiry date was very much relevant as effectiveness of insecticides due to its component needs to be ascertained. It was case of misbranding. The learned counsel placed reliance on the case reported as 2006 (3) JCR 90 Jhr. decided by Jarkhand High Court [Suresh Kumar Agarwal Vs. State of Jharkhand]. Sample of Rani salt collected from vendor, accused was sent for analysis. There was also best before period. The quantity of Iodine in salt was found to be less than expected quantity and so point of delay was considered as relevant. Reliance was placed on decision given by this Court in Criminal Writ Petition No.245/2012 [M/s. Hindustan Coca-Cola Marketing Co. Pvt. Ltd. and Ors. Vs. The State of Maharashtra] [Coram : A.V. Nirgude] decided on 02/04/2012. Bottles of coca-cola were taken as samples and the report of Public Analyst was received after the date of expiry of shelf life period. The benefit of this circumstance was given to the accused and the prosecution was quashed. The report of Public Analyst is not discussed in this case.
10. The facts and circumstances of each and every case are always different. What amounts to adulteration in the case needs to be kept in mind and whether it can be presumed that due to deterioration and decomposition of the article due to natural processes, some changes have taken place, needs to be decided in each and every case. In the present case, the report of CFL is consistent with the report of Public Analyst and at present, there is nothing on the record to show that due to expiry of the shelf life period, the iodine value can be changed. In view of the observations made by this Court in Criminal Application No.230/2012, cited supra this Court holds that it is not possible to quash the proceeding.
11. In the result, the petition stands dismissed.
12. The learned counsel for the petitioners requested for granting stay to the proceeding for some period as he wants to challenge the decision given by this Court. The said prayer is rejected.