S P AGRAWAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner is manufacturer of Ice Cream selling under the brand name of 'Go Go Ice Cream'. The manufacturing activities are being carried out within the municipal limits of Lucknow. On 28-11-81 in the morning two different Food Inspectors collected samples of Ice Cream from the manufacturing premises of the petitioner. Food Inspector Sri K. M. Lal Srivastava had collected the sample of 'Vanilla Ice Cream' at 11.10 a.m. and Food Inspector D.P.S. Chauhan had collected the sample of 'Pista Ice Cream' at 10.30 a.m. in accordance with the prescribed procedure. Crl. Misc. Case No. 1553 of 1984 relates to the sample of 'Vanilla Ice Cream' and Crl. Misc. Case No. 1554 of 1985 relates to the sample of 'Pista Ice Cream'.

(2.) Both these samples were sent to the Public Analyst who too vide his report dated 15-12-81 reported that the sample of Vanilla Ice Cream contained 6.27% Milk Fat as against the prescribed standard of not less than 10% and as such, the sample was found adulterated inasmuch as Milk Fat was deficit by 3.73%. However, the total solids were found 41.83% as against the prescribed standard of not less than 36% and Proteins were found 3.97% against prescribed standard of not less than 3.5%. In the case of Pista Ice Cream the Public Analyst found that it contained 6.03% Milk Fat as against prescribed standard of 8%, total solids were found to be 40.71% and Protein were found 3.8%, both of which were more than prescribed standard. This sample too was found adulterated inasmuch as it contained less Milk Fat.

(3.) In both the cases Nagar Swasthya Adhikari (Municipal Officer of Health) filed criminal complaint against the petitioner directly under his signatures. In Crl. Misc. Case No. 1553 of 1985 relating to sample of Vanilla Ice Cream the complaint was signed by Nagar Swasthya Adhikari on 15-5-82 and the complaint was filed in the Court on 6-7-82. In the other case, Nagar Swasthya Adhikari signed the complaint on 9-9-83 and the criminal complaint was actually filed in the Court on 13-9-83. Thus, in the case of Vanilla Ice Cream prosecution was launched after 7 months 8 days of taking of the sample and in the other case the prosecution was launched 211/2 months after the sample was taken. In the case of Vanilla Ice Cream the petitioner appeared in the Court after launching of prosecution on 11-3-85 whereas in the other case he appeared on 21-2-85. In both the cases the petitioner applied on 13-3-85 that the samples be sent to Central Laboratory, Calcutta for chemical examination alleging that no notice under Sec. 13(2) of Prevention of Food Adulteration Act, 1854 hereinafter referred to as 'the Act', was served upon the petitioner. In other words, he meant that the copy of report of the Public Analyst was not sent to him. In the affidavit filed along with petitions u/S. 482, Cr. P.C. it has been averred that till date the report of Public Analyst had not been sent to the petitioner whereas in the counter-affidavit it has been averred that report of Public Analyst was sent to the petitioner, the evidence regarding which shall be adduced at the time of the trial. On 13-3-85 these applications were allowed and on 9-4-85 an order was passed summoning the sample from Nagar Swasthya Adhikari. Thereafter, the petitioner sought adjournment and disputed that the samples were properly preserved. He sought and obtained time from the trial Court for staying further proceedings in the case as the petitioner wanted to bring stay order from this Court and time was granted to the petitioner for the purpose. Ultimately, on 19-6-85 the petitioner preferred these two petitions u/S. 482, Cr. P.C. and further proceedings in the two criminal cases pending before the trial Court were stayed on the same day. The result is that so far the samples have not been sent to the Central Laboratory for analysis.