HINDUSTAN UNILEVER LTD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the applicant seeks quashing of Criminal Case No. 392/2008 which is pending in the Court of the learned Chief Judicial Magistrate, Junagadh. The respondent No. 2 --Food Inspector lodged the above referred complaint in the Court of the learned Chief Judicial Magistrate, Junagadh, stating that on 24th February, 2005, he had taken samples of Kissan brand Juicy Fresh Tomato Sauce 500 gms. from one Purusharth stores at Junagadh. After following due procedure as prescribed under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") and the rules framed thereunder, a sample of the said food article was sent to the Public Analyst, Junagadh for analysis thereof on 25th February, 2005. By his report dated 6th April, 2005, the Public Analyst declared that the sample was adulterated as the same did not comply with standards and provisions laid down under the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as "the Rules"). Thereafter, the second respondent applied for sanction from the competent authority, which came to be granted on 28th January, 2008 and on 6th February, 2008, the above referred criminal case was filed in the Court of the learned Chief Judicial Magistrate.

(2.) Mr. P.M. Thakkar, Senior Advocate for the applicant invited attention to the report of the Public Analyst to point out that the date month and year of manufacturing/packing of the sample of food article are December, 2004 and the best before date is stated to be twelve months from the month of manufacturing. Referring to Section 13(2) of the Act, it was submitted that under the said provision, the applicant has a valuable right to get the sample of the food article in question tested by the Central Food Laboratory and that under sub-section (3) thereof, the certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It was submitted that in the facts of the present case, though the sample was collected on 24th February, 2005, the complaint was lodged as late as on 6th February, 2008 and the report of the Public Analyst was made available to the applicant only after the issuance of summons by the learned Magistrate. By the time the applicant received the copy of the analysis report, the shelf life of the sample of the food article had already expired, under the circumstances the applicant was deprived of its valuable right under Section 13(2) of the Act of getting the sample tested by the Director, Central Food Laboratory, which vitiates the proceedings against the applicant herein. Reliance was placed upon the decision of the Supreme Court in the case of State of Haryana v. Unique Farmaid Private Limited, 1999 8 SCC 190 wherein, when the matter reached the court, the shelf life of the sample had already expired. The court observed that no purpose would have been served in informing the court of the intention of getting the sample tested and held that a valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and that in the circumstances of the case, the accused had been deprived of that right thus, prejudicing them in their defence. It was submitted that under the circumstances, the complaint in question is required to be quashed on this ground alone.

(3.) It was further submitted that the applicant Company had nominated Mr. Anshul Asawa, Regional Sales Manager as the person in-charge of and responsible to the Company for the conduct of the business of the said company in the western region in terms of Section 17(2) of the Act. However, despite the fact that there was a nomination under Section 17(2) of the Act, all the Directors of the Company have been arraigned as accused in the complaint without there being any averment to the effect that they were in-charge of and responsible to the Company for the conduct of the business of the Company at the relevant time. It was submitted that it is settled legal position that without the necessary averments having been made in the complaint, the Directors cannot be arraigned as accused.