1. 'Delay' often comes through different corridors to rescue accused from the net of law in the way of criminal prosecution. It is utmost condemnable as well as agonizing, when the 'delay' comes through a corridor conveniently kept opened by the prosecution itself, deprives or denies a statutory right of defence of the accused to disprove prosecution evidence against him and thereby makes premature termination of the prosecution of a heinous crime affecting public health, inevitable to prevent abuse of the process of the court.
2. The petitioner is the Managing Director of an Oil Company Limited which is the manufacturer of well known edible oil by name "Supreme Vanaspathi". He is the 3rd accused in S.T.No.562/2003 on the file of the Judicial First Class Magistrate Court, Perambra. The above case was registered on a private complaint filed on 3.6.2003 by the 1st respondent herein, the Food Inspector, Perambara, alleging offences punishable under Section 16(1)(a)(i) read with Section 7(i) and Section 2(ia)(a)(m) of the Prevention of Food Adultration Act (Act 37 of 1954 as amended) and the Rules framed there under. The complaint was marked as Annexure-A.
3. Complainant's case The allegation in the complaint is that on 20.2.2003, 1st respondent inspected the premises of the 'Cheruvottu Stores' owned by the 1st accused, purchased 6x100 ml sealed polythene packets of 'supreme vanaspathy' manufactured by the petitioner's company, for analysis, after following the packing formalities in accordance with the Prevention of Food Adulteration Rules. The samples were forwarded to local (Health) Authority on 21.2.2003 in the manner prescribed under the Rules. The public Analyst delivered report in Form No.III on 27.3.2003 in which he has stated that the sample does not conform to the standards prescribed for `Vanaspathi' under A19 of Appendix B of Rule 5 of the Prevention of Food Adulteration Rules and thereby adultered. Hence, Annexure A complaint was filed against 1st and IInd accused alleging offences punishable under Section 16(1)(a) (i) read with Section 2(i-a)(m) and Section 7(i) of the Prevention of Food Adulteration Act, 1954 (P.F.A. Act) and A19 of Appendix-B under Rule 5 of the Prevention of Food Adulteration Rules, 1955. Initially, the petitioner was not arraigned as an accused. However, the learned magistrate, by invoking the power under Section 20 A of the Prevention of Food Adulteration Act, has impleaded the petitioner as 3rd accused and summons has been issued to him to appear on 19.9.2005.
This Crl.M.C is filed to quash Annexure A complaint on the ground, inter alia, that the prosecution against the petitioner is liable to be quashed for the violation of the mandatory provision contained in Section13(2) of the Prevention of Food Adulteration Act. The sample of Supreme Vanaspathi was taken on 20.2.2003 and the same was sent to the Public Analyst on 21.2.2003. The report of the Public Analyst was submitted on 27.3.2003. However, the complaint was filed only on 3.6.2003. The food product from which the sample took was manufactured and packed in November, 2002 as disclosed from the sealed packet of the product. From the label contained on the package of food, required to be complied as per Rule 32 of the Prevention of Food Adulteration Rules, it can be seen that the date of manufacturing is November, 2002 and "the food article is best for consumption up to six months from the date of manufacturing". Therefore warranty for consumption was over by April 2003. But as stated above, Annexure A complaint was filed on 3.6.2003 i.e, more than two months after warranty period for best consumption. Thus the petitioner has been deprived of his valuable right of defence to get the second sample analysed by Central Food Laboratory, a greater expert than public analyst and thereby caused serious prejudice to him.
5. Submissions at the Bar:
Sri. Sethumadhavan, the learned counsel for the petitioner advanced arguments in support of the grounds taken in the petition. Further he submitted that because of the delay in filing the complaint, the legitimate right of the petitioner in getting 2nd report from the Central Food Laboratory under Section 13(2) of the P.F.A.Act had been lost for the reason that, by the time, when he got the opportunity to exercise his right under Section 13(2) of the P.F.A. Act, the warranty period 'the best for consumption' of the food product had been expired and thereafter a correct report cannot be expected from the Central Food Laboratory. Thus the petitioner has been deprived of his valuable right of defence to disprove the report of the public analyst and thereby prove his innocence. There is a clear violation of the mandatory provision contained in Section 13(2) of the P.F.A. Act and if the complaint against the accused is allowed to be proceeded further, it would amount to abuse of the process of the court. Sri. Sethumadhavan cited the decisions in Municipal Corporation of Delhi v. Ghisa Ram (AIR 1967 SC 970), State of Haryana v. Unique Farmaid P. Ltd (1999 (2) FAC 399) and M/s. Gupta Chemicals Pvt. Ltd. v. State of Rajasthan (2002(2) FAC 148) to support his arguments.
6. Per contra, the learned Public Prosecutor opposed the arguments advanced by the learned counsel for the petitioner by contending that this issue can be raised and considered in the trial. But the Public Prosecutor also admitted the relevant dates pertaining to each step of the proceedings against the petitioner. The date of manufacture, the period best for consumption and the date of filing of the complaint are not disputed since these are admitted in Annexure A complaint also. The prosecution has no case that the sample which was being kept by the Local Health Authority was in preserved condition. But submitted that the delay in launching prosecution was not willful, it occurred due to the delay in getting details of the licence and particulars of the nominee of the manufacturer. According to the Prosecutor, value and efficacy of the certificate issued by the Public Analyst is sufficient to proceed against the petitioner.
7. I have given my anxious and careful consideration to the rival submissions made by the respective counsel The first question that arises for consideration is whether the petitioner has lost a valuable right of defence to disprove prosecution evidence against him, by the delay in institution of the prosecution?
8. Relevant Law:
At the outset, I shall come to the provisions of the Act, which are relevant for the purpose of the decision in this case. Going by Section 13(2) of the PFA Act, the statutory requirements to be complied and followed by the prosecution and the vendor or manufacturer (accused), as the case may be, can be enumerated as follows. On receipt of the report of the result of the analysis from the public analyst to the effect that the article of food is adulterated, the first step to be taken by the Local (Health) Authority is the institution of the prosecution against the person from whom the sample of the food article was taken (vendor) and the person, if any, whose name has been disclosed under Section 14A (Manufacturer). Thereafter it is incumbent upon the Local (Health) Authority to forward a copy of the report of the above said result of the analysis to the vendor or manufacturer as the case may be. On receipt of the copy of the report of the result, either or both of them, if it is so desired, 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.
9. Coming next to Section 13(3) of the PFA Act, the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst under Subsection (1). According to Section 13(5) report signed and used by the Public Analyst, unless it has been superseded by the certificate issued by the Director of Central Food Laboratory, may be used as evidence of the facts stated therein. The proviso to Section 13(5) further says that certificate signed and issued by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.
10. Case Law:
In Municipal Corporation of Delhi v. Ghisa Ram (AIR 1967 SC 970) even though the accused exercised his right to get the sample tested by Central Food Laboratory due to inordinate delay, the Director reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible. In this context the Supreme Court held as follows:
"It appears to us that when a valuable right is conferred by S. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein."
11. In State of Haryana v. Unique Farmaid P. Ltd (1999 (2) FAC 399) the non-compliance of the statutory requirements under Section 24 of the Insecticides Act, 1963 was the matter in issue. Section 24 of the Insecticides Act is analogous to that of Section 13(3) of the Prevention of the Food Adulteration Act. There, though the vendor exercised his right of option to get the sample tested by Central Insecticides Laboratory, shelf - life of the insecticide of which the sample was taken had already been expired and they were deprived of their valuable right of defence. The Hon'ble Supreme Court held as follows:
"Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent in the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence."
12. In M/s.Gupta Chemicals Pvt.Ltd v. State of Rajasthan (2002 (2) FAC 148), the prosecution was under Insecticides Act 1968. Shelf life of the sample of the insecticide seized had expired and for that reason no further steps could be taken for its examination. There, the Supreme Court quashed prosecution against accused.
13. In Medicamen Biotech Limited and another V. Rubina Bose, Drug Inspector (2008(7) SCC 196), prosecution was under Drugs and Cosmetics Act 1940. In the above Act, Section 25(4) is analogous to that of Section 13(5) of the P.F.A. Act. There, the complaint was filed, when the shelf life of the sample drug was to expire in next month. Therefore sample kept in the court could not be got tested before the expiry date as provided under Section 25(A). In the above context Supreme Court quashed the complaint and entire proceedings thereon, on a finding that accused have been deprived of a valuable right to get the sample tested under Section 25(3) and 25(4) of the Drugs and Cosmetics Act and that necessitates quashing of the entire proceedings.
Let us examine the question whether the prosecution has complied statutory requirements of the procedure under Sections 13(2), 13(3) and 13(5) of the P.F.A. Act in the instant case. It is seen that the food article which was manufactured in November, 2002 and having a warranty period of six months, 'for best consumption' was purchased for analysis on 20.2.2003 and first respondent got the report of public analyst on 27.3.2003. But the prosecution instituted on 3.6.2003 only i.e., after 66 days. By the time, warranty period of six months best for consumption expired in April 2004. There is no satisfactory explanation as to why the complaint itself had been filed after 66 days, on receipt of the report of the analysis. The first step to be taken on receipt of the report of the analysis is the institution of the prosecution. The details of the manufacturer and the period best for consumption are available in the label attached to the package itself. The filing of the complaint had nothing to do with appearance of the accused and manufacturer can be impleaded at any time during the trial under Section 20 A. Therefore, I am not inclined to accept the argument that the delay in launching prosecution was caused by the delay in getting details of the manufacturer and not by any kind of negligence or laches of the Local Public Health Authority. The prosecution instituted only after the period best for consumption and in the meantime the petitioner and others have lost their right to get the sample tested by Central Food Laboratory. In short, the accused have been deprived of their valuable right, prejudicing them in their defence.
15. No conviction can be based upon report of analysis of the sample taken from the food article after the period best for its consumption, unless it was preserved properly by approved chemical process. Therefore no purpose will be served by sending the sample for analysis after the period best for consumption unless it is preserved. This statutory right is a valuable one, because the accused gets an opportunity to get the second sample analysed by a greater expert than public analyst. But this is a right to be exercised after institution of the prosecution and before the expiry of the period best for consumption. Therefore, it is incumbent upon the prosecution to file the complaint expeditiously so as to ensure that the right of the accused will not be lost. The certificate of the Director, Central Food Laboratory will supersede the earlier report given by the public analyst and that certificate shall be final and conclusive evidence of the facts stated therein. Importantly, in the absence of such report of the Central Food Laboratory, the report given by the public analyst can be used as evidence of facts against the accused, and it will be sufficient to bring home guilt against him, if that report stands against him. Even though that report continues to be evidence of the facts contained therein, no conviction can be made on that basis, when the accused has been deprived of his valuable statutory right to challenge that report and that can also be taken as a legal bar against continuance of further prosecution. In fact, this right acts as a safety valve for the accused to disprove prosecution evidence, in case he is innocent. Certainly the accused would be prejudiced in his defence by the denial or deprivation of that statutory right, caused by delay in launching prosecution. Since the complaint has been lodged long after the period best for consumption, even if the petitioner would have opted for analysis by Central Food Laboratory that would have been a futile exercise.
16. The next question to be considered is whether the continuance of the proceedings amounts to abuse of the process of the court warranting termination under Section 482 of Crl.P.C? Once it is established that, the accused had been deprived of his valuable right of defence to disprove prosecution evidence against him under Section 13(3) of the PFA Act, certainly the accused would be prejudiced in his defence and it would be an abuse of the process of the court, if the prosecution is allowed to proceed further against him. Any proceedings, what ever be the offence, which would result in injustice would be an abuse of the process of the court. Therefore the court would be justified in quashing such proceedings, if it finds that it amounts to abuse of the process of the court and quashing the above proceedings would otherwise secure ends of justice also.
17. Another question to be considered is whether the deprivation of a statutory right of defence of the accused to disprove prosecution evidence against him amounts to infringement of fair and just trial guaranteed under Article 21 of the Constitution of India.
18. In criminal prosecution, fair, just and reasonable procedure implicit in Article 21 of the Constitution of India creates not only a right to be tried speedily but also fair and just trial. The right to exercise all possible defence, conferred by the statute is a valuable right and just and reasonable trial would bring within its sweep the right to exercise all possible defence statutorily conferred to him to disprove prosecution evidence, enabling to prove his innocence. Certainly the denial or deprivation of the right to exercise all possible defence and opportunities to disprove prosecution evidence will amount to denial of fair, just and reasonable trial and thereby come under infringement of fundamental right guaranteed under Article 21 of the Constitution of India.
19. The scope and ambit of jurisdiction under Section 482 of the Code of Criminal Procedure have been consistently well settled by line of decision from R.P.Kapoor V. State of Punjab (AIR 1960 866) to Union of India v. Ramesh Gandhi (2012 (1) SCC 476). On gauging the instant case by the parameters which are applicable for the exercise of jurisdiction under 482 laid down by the above said line of decision, I find that this is a fit case warranting premature termination of the prosecution under Section 482 of Cr.P.C to secure the ends of justice.
20. This Crl.M.C is filed to quash Annexure A complaint against all accused, though other two accused are not petitioners in this petition.
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The counsel for the petitioner urged to quash Annexure A complaint, enabling to get benefit to them also. The learned prosecutor admitted that factual and legal position of the other two accused are also same as that of the petitioner herein. I have already found that no purpose will be served by continuing prosecution against the accused and no conviction can be based on the report of Public Analyst, when the accused have been deprived of their right to exercise option under Section 13(2). Besides all further proceedings in Annexure A complaint was being stayed from 2005 onwards by the order of this Court. So, further prosecution, after long lapse of time and after creating a legal bar against continuance of the proceedings would be an abuse of the process of the court only. 21. Conclusion: Food adulteration is a heinous crime affecting the people at large. No adulterer shall be allowed to escape from the net of law. But law will take its own course. Therefore, I am constrained to quash Annexure A complaint and all further proceedings thereunder against all accused at the threshold itself, taking into consideration of the denial of a valuable right of defense to disprove prosecution evidence, to the accused, which makes the further prosecution an abuse of the process of the court. On going by the course of procedure under the PFA Act, it could be seen that each step in the way of prosecution is time bounded by days. But no time limit is prescribed for instituting prosecution after the receipt of the report from the Public Analyst. Unfortunately, delay often comes through this corridor to stifle the legitimate prosecution. I express my anguish over the lack of care and caution of the Local Public Health Authority, which culminated to the premature termination of a legitimate prosecution, which could have been expected to be ended successfully, had they filed the complaint without delay. In the result, Annexure A complaint and all further proceedings thereon against all accused are quashed. This Crl.M.C. stands allowed.