M/s Hindustan Coca-Cola BeveragesPvt.Ltd.A Registered Company under the Indian Companies Act, 1956Plot No.B-19, Cross v. M. Chate, APP for the Respond
Case Details
2024:BHC-AUG:29149 C-Appln2315-10FDA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2315 OF 2010WITHCRIMINAL APPLICATION NO. 4688 OF 2024M/s Hindustan Coca-Cola BeveragesPvt.Ltd.A Registered Company under the Indian Companies Act, 1956Plot No.B-19, Cross Road No.1,MIDC, Ambad, Nashik 422010... Applicant(Original Accused No.4)VERSUSThe State of MaharashtraAt the instance of Shri M.D.Shah,Food Inspector,Food and Drug Administration (M.S.)Jalna...Respondent(Original Complainant)Mr. D. S. Bagul, Advocate for the ApplicantMr. V. M. Chate, APP for the Respondent StateCORAM : Y. G. KHOBRAGADE, J.RESERVED ON : 02.12.2024PRONOUNCED ON 11.12.2024JUDGMENT:-1.Heard at length Mr. D. S. Bagul, the learned counsel forthe Applicant and Mr. V. M. Chate, the learned APP for theRespondent State.2.By the present application under Section 482 of theCode of Criminal Procedure, 1973, the Applicant/manufacturingPage 1 of 29
Legal Reasoning
C-Appln2315-10FDA.odtany, retained by it to the Court and on receipt thereof,the Court shall proceed in the manner provided in sub-section (2-B).”29.Section 11 of the PFA Act provides for procedure to befollowed by Food Inspectors. Sub section 4 of Section 11 providesthat article of food seized under sub section (4) of Section 10, unlessdestroyed under sub-section 4-A of that section, and any adulterantseized under sub-section (6) of that section shall be produced beforea Magistrate as soon as possible and in any case not later than sevendays after the receipt of report of the Public analyst. 30.In the case in hand, the complainant/Food Inspectorreceived the report of public analyst on 28.08.2001. Thereafter heproduced seized article before the Ld. CJM by making Misc.Application No. 394 of 2001 on 03.09.2001 thereby soughtpermission for destruction of contents of seized article. Thereafter,on service of notice to accused No. 1 on 27.06.2002, said seizedbottles were destroyed with permission of the Magistrate in presenceof Assistant Superintendent of the Court.31.In the case of Marico Ltd. Vs. State of Maharashtra,cited supra, the coordinate bench of this Court has held inparagraph Nos. 9 to 13 as under:Page 18 of 29 C-Appln2315-10FDA.odt"9. It is apparent from the aforesaid chart, thatthough the sample was drawn on 30th July, 2004,sent to the Public Analyst on the very next date i.e.on 31st July, 2004; and the Report was receivedwithin 2 months thereafter i.e. on 7th September,2004; the Food Inspector sent the papers to theAsst. FDA Commissioner seeking his permission toprosecute, after almost 7 months. i.e. on 26thApril, 2005, by which time the shelf life of the'Mixed Fruit Jam' was over the (date ofmanufacturing was February, 2004 and shelf life tillFebruary, 2005). Thereafter, sanction to prosecutewas granted only on 28th February, 2006 and theaforesaid complaint was lodged on 21st March,2006.10. Under Section 13(2) of the Prevention of FoodAdulteration Act, after the prosecution is instituted,an opportunity has to be given to the accused tomake an application to the Court, within a periodof 10 days from the receipt of the copy of thereport, to get the sample of the food article kept bythe Local (Health) Authority anlaysed by theCentral Food Laboratory. Under Sub-section 3 ofSection 13, 'the Certificate issued by the Director ofthe Central Food Laboratory is conclusive andsupersedes the report given by the Public Analyst'.11. The law with regard to the right of an accusedunder Section 13(2) of the said Act, is no longerres integra. It is well settled by a catena ofJudgments, both of the Apex Court and this Court,that once a valuable right is conferred upon a party,the said indefeasible right cannot be taken away, bydelaying the launch of prosecution. From theaforesaid dates, it is clearly evident that the shelflife of the product i.e. the 'Mixed Fruit Jam' wasover, and as such, the applicants could not havePage 19 of 29 C-Appln2315-10FDA.odtavailed of the indefeasible right which had accruedto them, under Section 13(2) of the Act, as thesample given by the local authority was renderedunfit for anlaysis. It is also evident that the delay inlaunching the prosecution was solely attributableto the prosecution. There was no impediment infiling the prosecution, well in time, as the report ofthe public analyst was received within 2 monthsfrom the date of seizure of sample. No explanationhas been offered by the prosecution, for the saidinordinate delay.12. Learned APP does not dispute the aforesaidfacts and the legal position in this regard. Thelearned APP is unable to justify the delay inlaunching the prosecution.13. Considering the aforesaid, it is evident thatthe applicants were deprived from exercising theirindefeasible right, which had accrued to them,under Section 13(2) of the Prevention of FoodAdulteration Act. It was incumbent for theRespondent No. 2- complainant/prosecution tolaunch the prosecution promptly and in any event,before the expiry of the shelf life of the product.32.In case of Marico Limited Vs. State of Delhi, cited supra,blended edible vegetable oil was packed on 27th November, 2009and it was mentioned on the product that "Best Before Nine Monthsfrom package" as per requirement of PFA Rules. The sample ofblended vegetable oil was taken on 31.03.2010. The public analystopined vide its report dated 04.05.2010 that the sampled productPage 20 of 29 C-Appln2315-10FDA.odtdoes not confirm to standard because, acid value exceeds theprescribed maximum limit. The sample went outside of its shelf-lifeof nine months in August, 2010 and complaint was filed on15.03.2001, after 10 months 2 days of the receipt of the reportdated 04.05.2010 of the public analyst. Notice under Section 13(2)of the PFA, Act was issued on 17.03.2001 to the Petitioner Companyto get the sample re-analyzed by the Central Food Laboratory wherethe sampled product with 9 months shelf-life became 7 monthsbeyond the best before date. Under these circumstances, thePetitioner company had challenged the prosecution on ground thatthe right of the Petitioner company under Section 13(2) of the PFA,Act, to get the sample of product ''Suffola Blended vegetable oil''analyzed by the Apex Laboratory i.e., Central Food Laboratory standvitiated which solely attributable to the conduct of the prosecutionand the delay on its part in filing the complaint. Therefore, thelearned Single Judge of the Delhi High Court considered variouscase laws including cases of Girishbhai Dahyabhai Shah Vs. C CJani, (2009) 15 SCC 64, Girishbhai Dahyabhai Shah Vs. C C Jani2008 (2) FAC 344, Ravindra Chopade Vs. State of Madhya Pradesh,2013 (1) FAC 227, State of Haryana Vs. Brijlal Mittal, AIR 1998 SC2327, and held that, the complaint filed by the Food Inspector inrespect of sample taken on 30.03.2000 on the basis of report of thePage 21 of 29 C-Appln2315-10FDA.odtpublic analyst dated 04.05.2010 after expiry of the shelf period ofthe product is not maintainable. Once complaint was filed afterexpiry of shelf life, right to send the second sample becomefrustrated, therefore, complaint filed by the Respondent wasquashed. 33.In the case of Adhiraj Amar Kanhaiyalal Sarin andothers, cited supra, the Co ordinate Bench of this Court has held inparagraph Nos. 9 and 10 as under: “9. The phraseology, "best before" is defined in rule 32(m)explanation-VIII of The Prevention of Food Adulteration Rules,1955, which reads thus: Explanation VIII. "best before" means the date which signifiesthe end of the period under any stated storage conditionsduring which the product shall remain fully marketable andshall retain any specific qualities for which tacit or expressclaims have been made and beyond that date the food maystill be perfectly satisfactory. Whereas; phraseology 'use bydate' or 'expiry date' is also defined in rule 32(m) explanationVIIIC of the Rules which reads thus: Explanation VIIIC. "use bydate" or "recommended last consumption date" or "expiry date"means the date which signifies the end of the estimated periodunder any stated storage conditions, after which productprobably will not have the quality attributes normally expectedby the consumers and the food shall not be marketable.10. On bare perusal of the provisions contained in Rule 32(m)and the meaning attached to phraseology "best before" is that;the period during which the product shall remain fullmarketable and shall retain in specific qualities for which tacitor express claims have been made. It is further clarified thatbeyond the prescribed date also the food article may still bePage 22 of 29 C-Appln2315-10FDA.odtperfectly satisfactory. Whereas; the meaning attached to the"expiry date" signifies the end of estimated period under anystated storage conditions, after which product probably willnot have the quality attributes normally expected by theconsumers and further that the food shall not be marketable. Adistinction has to be drawn in respect of phraseology "bestbefore" and "expiry date" noted on the container of the foodproduct. In the instant matter, the food item which is edibleoil, is best for use before the specified date, however, it doesnot mean that the product cannot be perfectly satisfactorybeyond the prescribed date where no expiry date has beenshown on the label of the food article."34.In case of Girishbhai Dahyabhai Shah Vs. C C Jani andanother, cited supra, the Hon'ble Supreme Court has held inParagraph Nos. 8 and 9 as under:“8. It will be apparent from the above, that only onreceipt of the report of the Public Analyst under sub-section(1) to the effect that the article of food is adulterated, can aprosecution be launched and a copy of the report could besupplied to the accused. Sub-section (2) also indicates thaton receipt of the report the accused could, if he so desired,make an application to the court within a period of ten daysfrom the date of the receipt of the copy of the the court thesample of article of food kept by the Local (Health)Authority analyzed by the Central Food Laboratory. 9. In other words, in the instant case, the appellant wasprevented from applying for analysis of the second samplebefore 17-07-1989, by which time the second sample ofcurd had deteriorated and was not capable of beinganalyzed as was found in Ghisa Ram referred to above.”35.In the judgment dated 29.10.2019 passed by theHon'ble Supreme Court in case of Narayana Prasad Sahu, citedPage 23 of 29 C-Appln2315-10FDA.odtsupra, the Hon'ble Supreme Court, considering the provisions ofSection 13(1), 13(2) of the PFA, Act held that Under sub-Section(2) of Section 13, it is mandatory for the Local (Health)Authority to forward a copy of the report of the Public Analyst tothe person from whom the sample of the food has been taken insuch a manner as may be prescribed. Further mandate of sub-section (2) of Section 13 is that a person to whom the report isforwarded should be informed that if it is so desired, he canmake an application to the Court within a period of ten daysfrom the date of receipt of the copy of the report to get thesample analysed by Central Food Laboratory. The report isrequired to be forwarded after institution of prosecution againstthe person from whom the sample of the article of food wastaken. Apart from the right of the accused to contend that thereport is not correct, he has right to exercise an option of sendingthe sample to Central Food Laboratory for analysis by making anapplication to the Court within ten days from the date of receiptof the report. If a copy of the report of the Public Analyst is notdelivered to the accused, his right under sub-section (2) ofSection 13 of praying for sending the sample to the Central FoodLaboratory will be defeated. Consequently, his right to challengethe report will be defeated. His right to defend himself will bePage 24 of 29 C-Appln2315-10FDA.odtadversely affected. This Court in the case of Vijendra (supra)held that mere dispatch of the report to the accused is not asufficient compliance with the requirement of sub- section (2) ofSection 13 and the report must be served on the accused.36.In case of Alkem Laboratories Limited, cited supra, it isheld that to give second opportunity to the accused persons againstwhom prosecution is initiated under the 1954 Act based on thePublic Analyst's report, to get the relevant food sample tested againby the Central laboratory, which will have precedence over thereport of the Public Analyst, which is a valuable opportunity foraccused persons to claim exoneration from the criminal proceedings.37.In the case of Pepsico India Holdings Private Limited,cited supra, wherein the sweetened carbonated water (pepsi)containing pesticide residue, carbofuran, to the extent of 0.001mg/litre was involved and question was whether such product wasadulterated food warranting prosecution? The Hon'ble SupremeCourt held that, mere presence of pesticide residue in sweetenedcarbonated water (pepsi) within tolerable limits (0.001 mg/litre)prescribed subsequently vide notification dated 17.06.2009 does notrender it as adulterated. 38.Reverting back to the present case, the sample of"Sweetened Carbonated Beverages, Canada Dry" manufactured onPage 25 of 29 C-Appln2315-10FDA.odt13.06.2001 having Best Before 6 months i.e. 12.12.2001 wascollected by the Complainant/Food Inspector on 26.07.2001 and itwas sent to the Public Analyst on 27.07.2007. The report wasreceived on 28.08.2007 and the prosecution was launched on15.03.2003. However, in the meantime the complainant filed Misc.Application No. 394 of 2001. on 03.09.2001 and on 27.02.2002,after service of notice to accused No. 1, the said seized stock of 321company packed sealed Glass bottles of "Sweetened CarbonatedBeverages, Canada Dry" manufactured on 13.06.2001 has beendestroyed under the order of the Ld. CJM. Thereafter empty glassbottles are returned to the accused No. 1. Therefore, the accused No.1 was having opportunity to apply for re-examination of the saidarticle under Section 13(2) of the PFA, Act. However, neither theapplicant who is manufacturer nor Accused Nos. 1 to 3 who aredistributors/stockists of the said product have availed such remedy.Therefore, to my view, the applicant manufacturing company has novoice to say that, no opportunity was granted under section 13 ( 2)of the PFA Act.39. Since, it is not the case of the present applicant aboutavailment of right under Section 13(2) of the PFA, Act and merelythe prosecution complaint has been filed after expiry of Best BeforeDate, it does not prove that the samples were not tested prior to thePage 26 of 29
Arguments
C-Appln2315-10FDA.odtCompany of "Sweetened Carbonated Beverages, Canada Dry" foodproduct takes exception to the Order dated 24.03.2010 passed bythe learned Chief Judicial Magistrate, Jalna, in Regular CriminalCase No. 654 of 2006, thereby issued process u/s 204 of Cri. P. C.,for contravention of provisions of Sec. 7 (i) r/w Sec. 2(ia), (a), (h)and Sec. 16 r/w Sec. 17 of the Prevention of Food Adulteration Act,1954 (for brevity “PFA, Act”,). The applicant manufacturingCompany further prayed for quashment of complaint instituted bythe complainant/present respondent bearing STC No. 950/2003which is re-registered as RCC No. 654/2006.3.The present applicant company is original accused No. 4in RCC No. 654 of 2006 who manufactures "Sweetened CarbonatedBeverages, Canada Dry" food product. 4.The present respondent/original complainant is theFood Inspector, Shri. M.D. Shah has instituted a complaint bearingRCC No. 654 of 2006 alleging that, on 26.07.2001, he along withindependent panch witnesses had visited the premises of M/s.Brooton Marketing where accused No.1 was present and waslooking after affairs of said establishment. The Complainantintroduced himself as Food Inspector by disclosing his identity andfurther introduced the Panchas to the accused No. 1. He disclosedPage 2 of 29 C-Appln2315-10FDA.odthis intention to draw the sample for the purpose of testing andanalysis. Thereafter, he inspected the said establishment. Whileinspecting the same, he saw food articles "Sweetened CarbonatedBeverages, Canada Dry" that manufactured on 13.06.2001 and22.06.2001, were stocked and kept for sale with said establishment.Further, on minute inspection of establishment of accused No. 1, hesaw some suspended fibrous matter by naked eye in packed sealedglass bottles. None of the sealed bottles were having leakage. Totalstock of "Sweetened Carbonated Beverages, Canada Dry"manufactured on 13.06.2001, 327 company packed, sealed glassbottles and "Sweetened Carbonated Beverages, Canada Dry"manufactured on 22.06.2001, 8995 company packed sealed glassbottles.5.Thereafter, the complainant demanded and purchased6 x 300 M.L., company packed sealed glass bottles of "SweetenedCarbonated Beverages, Canada Dry" manufactured on 13.06.2001for the purpose of testing and analysis. He has paid cost of Rs. 100/-in cash for said food product of "Sweetened Carbonated Beverages,Canada Dry" and obtained a cash memo from accused No. 1 underhis signature and the signatures of Panchas.6.Thereafter, for the purpose of test and analysis, thePage 3 of 29 C-Appln2315-10FDA.odtcomplainant gave intimation to accused No. 1 in writing on FormNo. VI, for drawing sample of "Sweetened Carbonated Beverages,Canada Dry", manufactured on 13.06.2001 and obtainedacknowledgment. According to the complainant without breakingpacked seal of the glass bottles, he tied with thread and preparedsamples under his signature and obtained signatures of accusedNo.1 as well of panchas. Thereafter, he sealed said sample byputting wax and drawn spot panchnama. The contents ofpanchnama were read over to accused No.1 and Panchas, andobtained their signatures.7.On 27.07.2001, the complainant referred one sealedpart of "Sweetened Carbonated Beverages, Canada Dry"manufactured on 13.06.2001 for chemical examination to theRegional Public Health Laboratory, Aurangabad. He also referredsealed parts of samples to local (Health) Authority and AssistantCommissioner, Food and Drug Administration (M.S.) Jalna along-with covering letter. The said samples were duly delivered andobtained the acknowledgment.8.Thereafter, on 31.08.2001, the complainant receivedreport of "Sweetened Carbonated Beverages, Canada Dry" fromLocal (Health) Authority and Assistant Commissioner, Food andPage 4 of 29 C-Appln2315-10FDA.odtDrug (M.S.) Jalna under letter dated 28.08.2001, declaring that thesample of "Sweetened Carbonated Beverages, Canada Dry" containsextraneous Fibrous and particulate suspended matter. On physicalobservations some what cobweb like particulate matter wasobserved. Therefore, said food product was not in confirmation withthe requirements of Carbonated water as per Prevention of FoodAdulteration Act and Rules, which is in contravention of Section2(V) of PFA, Act.9.According to the Respondent/complainant, after dueenquiry, he submitted all relevant case papers to the Local (Health)Authority and Assistant Commissioner, Food and DrugAdministration, Jalna and sought sanction to prosecute the accusedpersons under section 20(1) of the PFA Act. On 15.03.2003, theJoint Commissioner, Food and Drug Administration, Aurangabad,accorded sanction for launching the prosecution against the accusedpersons. 10.According to the complainant, the seized food itemswere stocked by accused Nos. 1 and 2 for sale and sold adulteratedfood articles "Sweetened Carbonated Beverages, Canada Dry"manufactured by the present applicant company on 13.06.2001 and26.07.2001. Since the seized food product was found inPage 5 of 29 C-Appln2315-10FDA.odtcontravention for the provisions of Sections 7(i), 2(ia)(a), 2(ia)(h)punishable under section 16 of the PFA Act and rules framedthereunder, hence, prayed for action against the accused persons.11.Mr. Bagul, the learned counsel for the applicant canvassthat, the alleged food product was manufactured on 13.06.2001.The complainant took sample of the same on 26.07.2001. Form No.VI shows that, Best Before date is six months from the date ofmanufacture which expires on 12-12-2001 as per Public Analystreport bearing No. 337 dated 28.08.2001. On 13.05.2003, thecomplainant filed the complaint as STC No. 950 of 2003, which hasbeen re-registered as RCC No. 654 of 2006 vide order dated19.12.2006.12.The learned counsel for the applicant canvassed that,the complainant filed the complaint after expiry of 16 months fromthe date of best before date which was already expired on12.12.2001. Therefore, prosecution has been lodged belatedly afterlapse of 'Best Before date'. Therefore, the applicant manufacturingcompany was not in a position to exercise the statutory rightconferred under section 13(2) of the PFA Act. Since it wasincumbent for the Respondent/complainant to launch theprosecution promptly and in any event, before the expiry of the shelfPage 6 of 29 C-Appln2315-10FDA.odtlife of the food product, as such, the complaint has been filed afterexpiry of best before date, hence, entire complaint needs to bequashed.13.To buttress these submission, the learned counsel forthe applicant has relied on the following case laws:I.1992 Prevention of Food Adulteration Cases 318, State ofMaharashtra through Food Inspector Vs. Rehman.II.2006 Cri. L.J. 3988, Hyderabad Beverage Pvt. Ltd. Vs. state ofA.P.III.2016 SCC Online Bom 12606, Marico Ltd. Vs. State ofMaharashtra,IV.(4) 2015 SCC Online Del 7162, Marico Ltd. & another Vs.State of delhi and othersV.Adhiraj Amar Kannhaiyalal Sarin Vs. State of Maharashtra,2010 SCC Online Bom 1039VI.Girishbhai Dahyabhai Shah Vs. C.C. Jani, (2009) 15 SCC 64,VII.Order dated 29th October, 2021 in Criminal Appeal No.1312of 2021, Narayana Prasad Sahu Vs. the State of MadhyaPradesh (SC)VIII. Alkem Laboratories Ltd. Vs. State of Madhya Pradesh, 2019SCC Online SC 1536,Page 7 of 29 C-Appln2315-10FDA.odtIX.Shivkumar Alias Shiwalamal Narumal Chugwani Vs. State ofMaharashtra, 2010 SCC Online Bom 844.14.Per contra, the learned APP strongly opposed theapplication mainly ground of maintainability of the applicationunder section 482 of Cr.P.C, challenging the order of issuance ofprocess as well as quashment of the proceedings initiated by theFood Inspector for contravention of provisions of Sections 7(i), 2(ia)(a), 2(ia)(h) punishable under section 16 read with Section 17 ofthe PFA Act and rules framed thereunder.15.The APP canvassed that, since, the applicant/manufacturing company prayed for quashment of proceedingbearing RCC No. 654 of 2006 as well as order of issuance of process,therefore, the applicant could have approached before the learnedSessions Court by invoking Sec. 397 of Cri. P. C., and remedy underSec. 482 of Cri. P. C., is not available, hence, prayed for dismissal ofthe application.16.Needless to say that, the order of issuance of process isnot interlocutory, therefore, revision u/s 397 of Cri. P. C., ismaintainable. However, the revisional Court having no power toquash the entire proceeding. Since, the applicant manufacturingCompany of the Food item, which is subject matter of the presentPage 8 of 29 C-Appln2315-10FDA.odtcase, prayed for quashment of order of issuance of process as well asproceeding, therefore, to my view, remedy under Section 397 of theCr.P..C is not available to the applicant/accused No.4. Therefore,objection raised by the Learned APP is not acceptable. 17.It is further canvassed that after obtaining necessarysanction, the complainant filed a prosecution against the accusedincluding the present applicant/accused No.4. Thereafter, on03.09.2001, the Food Inspector filed Misc. Application No. 394 of2001, before the Ld. CJM and sought permission for destruction ofsamples. Accordingly, the Learned CJM passed an order andpermitted for destruction of contents of seized stock of 321company packed, sealed bottles of "Sweetened CarbonatedBeverages, Canada Dry" manufactured on 13.06.2001 and emptyglass bottles are returned to the accused No. 1 in presence of theAssistant Superintendent of the Court. Therefore, due procedurehas been complied, so also, necessary permission from the JointCommissioner, FDA, Aurangabad was obtained to prosecute theaccused persons on 15.03.2003 and then filed a complaint on13.05.2003 against the applicant as well as other accused persons.Thereafter, on 24.03.2010, the learned CJM passed an order in RCCNo. 654 of 2006 and issued summons against the accused personsPage 9 of 29 C-Appln2315-10FDA.odtincluding the present applicant company. Therefore, there is noillegality, hence, prayed for dismissal of the application. 18.The learned APP further canvassed that, the applicantcompany is the manufacturer of the seized food. The said items weremanufactured on 13.06.2001 and expiry date was best before sixmonths i.e. 12.12.2001. The sample was taken by the Food Inspectoron 26.07.2001 and was sent to the Public Analyst on 27.07.2001.The analysis report received on 28.08.2001. On 15.03.2003, theJoint Commissioner, FDA, Aurangabad accorded sanction toprosecute the accused persons. Thereafter, the complainant/FoodInspector lodged the complaint on 13.05.2003. The seized fooditems examined through Public Health Laboratory prior to BestBefore date of the product.19.It is further canvassed that, Section 13 (2) provides forgrant of second opportunity to the accused persons against whomprosecution is initiated under the provisions of PFA, Act, based onthe public analyst's report, to get the relevant food sample testedagain by the Central Laboratory because its report will haveprecedence over the public analysis. However, the presentapplicant/original accused No. 4 never prayed for examination ofthe said sample through the Central Laboratory prior to the bestPage 10 of 29 C-Appln2315-10FDA.odtbefore date of the product. So also, the present applicant/accusedNo. 4 has not made any application under Section 13 (2-A) of theFPA Act before the Best Before date to the Court of Ld. CJM for re-examination of the sample. Therefore, the applicant has no right tochallenge the order of issuance of process as passed by the learnedCJM on 24.03.2010. 20.The learned APP further canvassed that, on 03.09.2001,the complaianat filed Misc. Application No. 394 of 2001 seekingpermission for destruction of seized food items alongwith allnecessary documents i.e. (i) purchase Bill, (ii) Form No. VI, (iii)Form No. 14A, (iv) Panchanama, (v) Form No.V and (vi) Reportreceived from the public analyst. Thereafter, the Ld. CJM, hadcalled written say of the accused No.1. Accordingly, the accused No.1 filed his say. Thereafter, the Ld. CJM passed an order and pursuantto the said order, the contents of seized glass bottles are destroyedand empty bottles were returned to accused No.1 in presence of theAssistant Superintendent of the court on 27.06.2002. Therefore, allthe necessary procedure has been complied with. Since theapplicant/accused No. 4 has not applied for re-analysis of thecontents of the sealed bottles and never exercised the powers undersection 13(2) of the PFA Act, therefore, no interference is called atPage 11 of 29 C-Appln2315-10FDA.odtthe hands of this Court.21.To buttress this submission, the learned APP placedreliance on the case of State of Maharashtra Vs. Rehman, citedsupra, wherein, it has been held that, the accused never applied forthe second opinion inspite of supply of copy of the report of thePublic analyst. Hence, no error has been committed by theprosecution in not producing the sample before the Court underSection 11(4) read with section 10(4) of the Act which makesobligatory on the Food Inspector to produce the articles which wereseized before the Court.22.The learned APP further placed reliance on the case ofHyderabad Beverages Pvt. Ltd. Vs. State of A.P., 2006 Cr.L.J. 3988,wherein, it has been held that, the accused have not exercised theiroption under section 13(2) of the PFA, Act and Section 16(2) of thesaid Act and they have not requested or made application to theCourt to send the sample for analysis to the Central Laboratory. Thedelay in furnishing copy of the report of the public analyst,therefore, cannot be said to have caused prejudice to them. It isonly if the petitioner therein had made a request and if on thesample being sent thereafter to the central laboratory and centrallaboratory had certified that the sample had so decomposed as toPage 12 of 29 C-Appln2315-10FDA.odtrender it unfit for analysis, the Petitioner therein cannot be said tohave suffered prejudice. In any event, these are all matters for thelearned Magistrate to examine on the basis of evidence, in the facts,and circumstance of each case, and not for this Court to interfereunder Section 482 of the Criminal Procedure Code.23.Having regard to the submissions canvassed on behalfof both sides, I have gone through the paper book. The Presentapplicant/accused No. 4 has not disputed about manufacturing,distributing, storing and selling of food articles including“Sweetened Carbonated Beverage”, which is involved in thisapplication. The present applicant/accused No. 4 has not deniedthat accused No. 1 is the vendor and accused No. 2 is proprietor ofM/s. Brooton Marketing. The accused No. 3 is the nominee of thefirm of Respondent No. 4/M/s. Hindustan Coca-Cola BeveragesPvt.Ltd. and accused Nos. 5 and 6 are the nominees and responsiblefor the business of M/s. Nayar Electronics Pvt. Ltd.24.It is a matter of record that, on 26.07.2001, thecomplainant had visited the premises of accused No. 1/BrootonMarketing, B-12, Old MIDC, Jalna. By following the due procedurecontemplated under the PFA Act and Rules, the complainant/FoodInspector purchased food item in sealed bottles. He has also drawnPage 13 of 29 C-Appln2315-10FDA.odtseizure panchanama as well as spot panchanama. The said seizedfood items were sent to Public Analyst, Regional Health Laboratory,Aurangabad. One sealed packet was sent to the Local HealthAuthority and Assistant Commissioner, FDA, Jalna. On 31.08.2001,the Food Inspector received a report from the Laboratory in respectof examination of "Sweetened Carbonated Beverages, Canada Dry"manufactured on 13.06.2001 under cover letter dated 28.08.2001.The Regional Health Laboratory, Aurangabad opined that thesample of "Sweetened Carbonated Beverages, Canada Dry"manufactured on 13.06.2001 contains extraneous fibrous andparticulate suspended matter and also in the physical observationsome what cobweb like particulate matter was observed. Further itdoes not confirm the requirements of Carbonated water as per PFARules, 1955. 25.Necessary details of manufacturer, expiry date (bestbefore period), receipt of reports, filing of complaints etc. events,are as under:Sr. No. Event Date1Date of manufacturing "Sweetened Carbonated Beverages, Canada Dry".13.06.2001 2. Date of expiry of the of productBest before 6x monthsi.e. 12.12.20013. Sample drawn by the Food Inspector26.06.2001Page 14 of 29 C-Appln2315-10FDA.odt4. Samples sent for to public analyst27.08.20015. Report of public analyst received on ((after 1 month and 14 days)Report dated28.08.2001, receivedon 31.08.2001.Misc. Application No. 394 of 2001 filed before CJM, Jalna in respect of seized stock03.09.2001CJM Jalna passed order to destroy the stock 27.06.2002.6.Joint Commissioner FDA granted consent for prosecution 15.03.20037. Complaint filed by the Food Inspector 13.05.20038. Food Inspector made an application for withdrawal of complaint registered as STC No.950/2003 and registering criminal case(which thenregistered as RCC No.654 of 2006)13.12.20069. Order of issue process passed on 24.03.201026.From the aforesaid chart, it is apparent that the samplewas drawn on 26.07.2007 and it was sent to the Public analyst onnext day i.e. 27.07.2001. Thereafter, the report was received fromthe Public Analyst on 28.08.2001, within a period of one month. On03.09.2001, the complainant/Food Inspector filed Misc. ApplicationNo. 394 of 2001 and sought permission to destroy the contents ofseized stock. Accordingly, on 27.06.2002, the learned CJM, passedthe order to destroy the contents of seized stock and empty bottlesreturned to accused No. 1.27.On face of record, it appears that the samples werePage 15 of 29 C-Appln2315-10FDA.odtseized through accused No. 1. The Accused No. 1 was also havingwell knowledge about filing of Misc. Application No. 394/2001before the Ld. Chief Judicial Magistrate, Jalna (for brevity “Ld.CJM”) for destruction of seized food samples. After say/reply isgiven by the Accused no. 1, the Ld. CJM passed the order on27.06.2002 and allowed destruction of contents of seized stock of321 company packed sealed glass bottles of "Sweetened CarbonatedBeverages, Canada Dry" manufactured on 13.06.2001. The emptyglass bottles are returned to the Accused no. 1. Therefore, it primafacie appears that, the Accused no. 1 was having every chance toapply under Section 13(2) of the PFA, Act for getting the saidsamples tested through Central Laboratory. However, neither theapplicant nor the accused No. 1 exercised powers u/s 13 ( 2) of theAct prior to destroying of the samples. 28.Section 13(2), (2-A), (2-B), and (2-C) of the PreventionOf Food Adulteration Act, 1954 read thus :-“(2)On receipt of the report of the result of the analysisunder sub-section (1) to the effect that the article of foodis adulterated, the Local (Health) Authority shall, afterthe institution of prosecution against the persons fromwhom the sample of the article of food was taken andthe person, if any, whose name, address and otherparticulars have been disclosed under section 14-A,forward, in such manner as may be prescribed, a copy ofthe report of the result of the analysis to such person orPage 16 of 29 C-Appln2315-10FDA.odtpersons, as the case may be, informing such person orpersons that if it is so desired, either or both of themmay make an application to the Court within a period often days from the date of receipt of the copy of thereport to get the sample of the article of food kept by theLocal (Health) Authority analyzed by the Central FoodLaboratory.(2-A) When an application is made to the Court undersub-section (2), the Court shall require the Local(Health) Authority to forward the part or parts of thesample kept by the said Authority and upon suchrequisition being made, the said Authority shall forwardthe part or parts of the sample to the Court within aperiod of five days from the date of receipt of suchrequisition.(2-B) On receipt of the part or parts of the sample fromthe Local (Health) Authority under sub-section (2-A), theCourt shall first ascertain that the mark and seal orfastening as provided in clause (b) of sub-section (1) ofsection 11 are intact and the signature or thumb-impression, as the case may be, is not tampered with,and dispatch the part or, as the case may be, one of theparts of the sample under its own seal to the Director ofthe Central Food Laboratory who shall thereupon send acertificate to the Court in the prescribed form within onemonth from the date of receipt of the part of the samplespecifying the result of the analysis.(2-C) Where two parts of the sample have been sent tothe Court and only one part of the sample has been sentby the Court to the Director of the Central FoodLaboratory under sub-section (2-B), the Court shall, assoon as practicable, return the remaining part to theLocal (Health) Authority and that Authority shall destroythat part after the certificate from the Director of theCentral Food Laboratory has been received by the Court:Provided that where the part of the sample sent by theCourt to the Director of the Central Food Laboratory islost or damaged, the Court shall require the Local(Health) Authority to forward the part of the sample, ifPage 17 of 29
Decision
C-Appln2315-10FDA.odtexpiry of Best Before Date of the production. Therefore, the groundsset out by the present applicant/accused No. 4 company that theprosecution complaint has been filed after the period of 16 monthsfrom the expiry of Best Before date cannot be said to be bonafideand substantial. 40.It is pertinent to note that, denial of right of the accusedunder section 13(2) of the PFA, Act would arose only when theaccused could have applied for sending the samples for analysis tothe Central Laboratory. Failing to exercise such option, or to makean application to Court requesting that sample be sent to the CentralLaboratory for reanalysis would disentitle the accused fromcontending that they have been deprived from exercising their rightunder section 13(2) of the PFA, Act.41.In view of the above, I do not find the applicant hasmade out the ground set out in the application for quashment ofproceeding bearing RCC No. 654 of 2006. Consequently, the presentCriminal application is rejected. Rule discharged. Cri.AppliaitonNo.4688/2024 is disposed off. ( Y. G. KHOBRAGADE, J. ) 42. After pronouncement of the judgment, the learned counselPage 27 of 29 C-Appln2315-10FDA.odtfor the applicant prayed for extension of interim relief dated06.07.2010 granted by this Court, for the period of eight weeks fromtoday, whereby further proceedings of RCC No. 654 of 2006 againstthe present applicant original accused No.4 was stayed. The learnedAPP strongly opposes the prayer on the ground that the proceedingof RCC No. 654 of 2006 is stalled since last more than 14 years.43. On 06.07.2010, this Court (Coram: A. V. Potdar, J.) haspassed the following order: "Heard learned counsel for applicant. Issue noticeto respondent. Learned APP accepts notice for stateand prayed for time to call for the papers ofinvestigation. Rule. Rule returnable early. Within meantime, proceeding before the trialcourt is stayed to the extent of present applicant, whois accused no.4 in RCC No.654/2006 on the file ofC.J.M. Jalna. Leave to move this Court for earlyhearing after 10 weeks. Parties to act on the authenticated copy of thisorder."45. Th e proceeding of RCC No.654 of 2006 which is pendingon the file of the learned Chief Judicial Magistrate, Jalna is stayedagainst the present applicant/original accused No.4 only, but it isPage 28 of 29 C-Appln2315-10FDA.odtinformed that the entire proceeding as against all the accusedpersons has already been stayed and, there is no progress in theproceeding.46. Considering the nature of offence and the challenge to theproceeding by the applicant/manufacturing company, I do not findto extent further the interim order, as prayed. Accordingly, theprayer is hereby rejected. ( Y. G. KHOBRAGADE, J. )JPchavanPage 29 of 29