TITO VARGHESE Vs. FOOD INSPECTOR

JUDGEMENT

(1.) Petitioner is the first accused in a complaint filed by the Food Inspector, Corporation of Kochi, for offences punishable under Ss. 2(ia)(b), 7(i)(v) read with S. 16(1)(a)(ii) of the Prevention of Food Adulteration Act, for short the 'Act', read with item number A-18.6.11 of Appendix B of the Prevention of Food Adulteration Rules, for short the 'Rules'. Cognizance taken of the offences the case awaits further steps for trial before the Judicial First Class Magistrate-I, Ernakulam. Petitioner has filed the above petition to quash the criminal proceedings against him invoking the inherent powers of this court under S. 482 of the Code of Criminal Procedure (for short 'the Code'), contending that the proceedings are an abuse of process of the court. The gist of the accusation against the accused can be summed up thus: The Food Inspector, hereinafter referred to as complainant, visited, on 3.7.2007, the business premises of M/s Trinetra Super Retail Limited (Fab Mall), Edapally, Cochin-24, a private limited company engaged in retail outlet of provisions and other goods. Disclosing his identity and complying with the Rules complainant purchased three packets of 500 gms of Urd Dal Whole exhibited for sale, in that Fab Mall. Petitioner is the Manager, and second accused licensee of that Fab Mall. Petitioner was present when sale of the above food item was effected by the complainant. Sampling of that food item was carried out in the presence of petitioner and also witnesses in accordance with the Act and Rules and a mahazar was prepared at the spot evidencing the steps taken by the complainant over the purchase and sampling done. One among the samples taken and sealed, with specimen impression of the seal used for sampling in a separate cover, was sent over to the Public Analyst and the remaining food samples, with specimen impression of the seal, in separate covers were sent over to the Local (Health) Authority and District Food Inspector. Report received from the Public Analyst revealed that the sample was coated with talc, which is prohibited, and thus adulterated. Local authority forwarded Form III report to the complainant for launching prosecution. Complainant there upon sent separate pre-registered letters to the first and second accused seeking license and nomination details of M/s Trinetra Super Retail Limited (Fabmall). No reply was furnished to such letters. After ascertaining that no P.F.A. nomination has been made by the above Private Limited Company, and also collecting the details of the P.F.A. Licensee and Directors of the Company, the above complaint was filed. The first accused is the Store Manager, second accused the licensee and 3rd to 7th accused are the Directors of M/s Trinetra Super Retail Limited (Fabmall), and alt of them are responsible for day today affairs of the business and, thus, culpable for the offences imputed under the Act and Rules, is the case of the complainant.

(2.) Learned Senior Counsel, Sri. M.K. Damodaran, who appeared for the petitioner, assailed the prosecution proceedings arising from Annexure A complaint on the following challenges. It is contended by the learned senior counsel that there was inordinate delay in carrying out the analysis over the sample and launching the prosecution against the accused persons by filing the complaint before the Magistrate. The food item-Urd Dal Whole over which prosecution is launched was kept packed. Details of packing as revealed from the noting made in Mahazar showed that it was packed on 22.6.2007 with a further declaration that its 'best before date' is 21.8.2007. For all statutory purpose and for use according to the counsel, the 'best before date' is applicable. Though sample was collected on 31.7.2007 complaint was filed after lapse of six months and that is long after the expiry of the best before period noted in the packet When that be the case, the inordinate delay in filing the complaint and prosecution steps taken has seriously affected the right of the accused persons under S. 13(2) of the Act to send over the second sample for analysis to the Central Food Laboratory. Delay caused in filing the complaint has prejudicially affected the statutory right conferred on the petitioner for having a second analysis since after such long delay even if any step is taken under S. 13(2) of the Act that would not have served any purpose, is the submission. Learned Senior Counsel has relied on two decisions of this court, both rendered by learned single Judges, the first one in Narayana Swami & Anr. v. The Food Inspector & Anr.,2007 Supp2 KerLT 158 and the latter in Rama Moorthy v. Food Inspector, 2012 2 KerLT 214 to contend that where the accused has been deprived of the valuable statutory right to challenge the analysis report on account of delay in filing the complaint, taking of prosecution proceedings and its continuation against him would be a futile exercise, and, therefore, it is liable to be quashed invoking the inherent powers of this court The next line of attack projected to impeach the prosecution is based on the decision rendered by the Apex Court in 'Pepsico India Holdings Private Limited v. Food Inspector & Anr., 2011 1 SCC 176 for short 'Pepsico's case'. The report of the Public Analyst who had used DGHS method for analysis of the food sample could not be relied upon, is the submission of the counsel. That challenge based on the aforesaid decision is built upon two premises-(1) there is no prescribed and validated method of analysis under S. 23(1A)(ee) and (hh) of the Act and the DGHS method is not a prescribed method for analysis at the point of time when the sample was analyzed and (2) the Regional Analytical Laboratory, Ernakulam, where the sample is analyzed is not a laboratory notified appropriately as a laboratory specified for conducting the test over the food sample. During the course of submission made I have expressed my reservations over the applicability of the aforesaid decision rendered by the Apex Court to the present case. After the petition was heard, it is noticed, setting forth the challenge canvassed as above as an additional ground a petition has been filed to permit the petitioner to raise such grounds also to assail the prosecution. Another line of attack canvassed by the counsel is that in Annexure A2 analysis report the Public Analyst has formed the opinion that the sample is adulterated following a different prescribed standard for the item of food, Urd Dal Whole. Whereas for Urd Dal Whole the prescribed standard to be applied is covered under A-18.06.06 of Appendix B what has been taken as the prescribed standard by the analyst as seen from Annexure A2 report, to hold that the food item is adulterated is under A-18.06.11 of Appendix B, and that renders the report of the Public Analyst unacceptable, is the submission of the counsel. That report cannot be the basis to prosecute the accused persons when the very analysis is based on a different prescribed standard not applicable to the food item involved, is the submission of the counsel. With the above challenges it is also contended that Annexure A2 report does not contain any finding that the food item is injurious to health, which, according to the counsel, should form the foundation to initiate prosecution for an offence under the Act and Rules.

(3.) I do not find any merit in the challenge raised that delay in filing complaint with reference to the 'best before date' printed in the packet of food item has a decisive impact in testing the validity of the prosecution proceedings commenced for violation of the Act and Rules, based on an analysis report of the sample food item revealing that it was adulterated. Food item exhibited for sale in a Fabmall was purchased and sample collected thereof by the complainant on 3.7.2007. That food packet contained a 'best before date' as 21.8.2007 does not come to the assistance of the accused for the reason that the complaint after getting analysis report of the sample collected and compliance of other formalities to launch prosecution, was commenced six months later. Whether the packet was exhibited for sale before or after the date showing best before use in the packet, the fulcrum on which the prosecution rests to proceed for offences under the Act and Rules is the adulteration of the food item in that packet. No doubt, analysis report is the basis for the complaint. But, where the accused persons to be proceeded against include a company as in the present case requiring collection of further details as to who is its P.F.A. Licensee, nomination if any made by the company, and also names and particulars of its directors, which can be done only after issuing registered notices to the authorities and even to the company to be proceeded against, and getting replies thereof, naturally, there would be some delay in commencing the prosecution proceedings even where the analysis report over the sample disclosed that it was adulterated. How far the right of the accused person to send over the second sample for analysis resorting to his statutory right conferred under S. 13(2) of the Act has been prejudiced or in what way it has been injuriously affected, is a matter that has to be examined, if so raised, in trial on the evidence let in the case. Without taking steps under S. 13(2) of the Act and no finding entered on such analysis that the delay in sending the second sample for analysis has materially affected the finding to be entered over such sample, normally, no accused person proceeded under the Act and Rules can contend that delay in filing the complaint after the food item was taken has vitiated the prosecution against him. If at all there was delay in filing the complaint after getting the analysis report whether the accused has taken steps under S. 13(2) of the Act for a second analysis may be one among the grounds which the court has to consider with other materials placed in the case to test the validity and merit of the prosecution. At any rate, delay in filing the complaint after getting analysis report canvassed as a ground to impeach the prosecution on the premise that it has affected the statutory right of the accused under S. 13(2) of the Act has no merit or basis at all. Decisions relied by the learned Senior Counsel rendered in Narayana Swami's case and Rama Moorthy's case, referred to above, no doubt strike a different note. The decisions rendered by the Apex Court on the above question evidently have not been brought to the notice of the court while considering the cases under the above referred decisions, and that has resulted in expressing a view that delay in filing the complaint after getting analysis report would cause prejudice to the accused since that would deprive him of his statutory right under S. 13(2) of the Act. The Apex Court in 'Babulal Hargovindas v. State of Gujarat, 1971 AIR(SC) 1277 has held that unless an application to send the sample for analysis exercising right under S. 13(2) of the Act has been made the vendor cannot complain that he was deprived of his right to have the sample analysed. That view has been reaffirmed by three Judges Bench of the Apex Court in Ajit Prasad Ramkrishan Singh v. The State of Maharashtra, 1972 AIR(SC) 1631. Challenge raised in that case that the accused was deprived of his right to have the sample analysed on account of the delay in service of summons was repelled holding that the accused who never applied under S. 13(2) of Act cannot complain that he has been deprived of any right. So much so, the challenge made by the counsel with reference to the 'best before date' printed in the food packet to contend of the deprivation of statutory right of accused under S. 13(2) of the Act, without taking any steps to exercise such right, to assail the merit of prosecution, that too at its inception, has no value or merit. If there is delay in filing the complaint after getting analysis report that by itself cannot be a basis to contend that there has been denial or deprivation of the statutory right under S. 13(2) of the Act to the accused person; but, such delay if that be so, may have relevance depending upon all other materials produced in the trial of the case. A challenge that there was six months delay in filing the complaint after the 'best before date' shown in the packet of food item, or even after getting the analysis report, can never be a ground to question the prosecution and the validity of the complaint invoking the inherent powers of this court under S. 482 of the Code.