TITO VARGHESE v. FOOD INSPECTOR, CORPORATION OF KOCHI, ERNAKULAM

“C.R.”S.S.SATHEESACHANDRAN,J.---------------------------------------Crl.M.C. NO. 1148 of 2008 ----------------------------------------Dated this the 22nd day of November, 2012ORDERPetitioner is the first accused in acomplaint filed by the Food Inspector, Corporationof Kochi, for offences punishable under Sections 2(ia)(b), 7 (i) (v) read with Section 16(1)(a)(ii) of thePrevention of Food Adulteration Act, for short the'Act', read with item number A-18-06-11 ofAppendix B of the Prevention of Food AdulterationAct Rules, for short the 'Rules'. Cognizance taken ofthe offences the case awaits further steps for trialbefore the Judicial First Class Magistrate-I,Ernakulam. Petitioner has filed the above petitionto quash the criminal proceedings against himinvoking the inherent powers of this court underSection 482 of the Code of Criminal Procedure {forshort 'the Code'}, contending that the proceedingsare an abuse of process of the court. Crl.M.C. NO. 1148 of 2008 22. The gist of the accusation against theaccused can be summed up thus: The Food Inspector,hereinafter referred to as complainant, visited, on03.07.2007, the business premises of M/s TrinetraSuper Retail Limited (Fab Mall), Edapally, Cochin -24, a private limited company engaged in retailoutlet of provisions and other goods. Disclosing hisidentity and complying with the Rules complainantpurchased three packets of 500gms of Urd Dal Wholeexhibited for sale in that Fab Mall. Petitioner isthe Manager, and second accused licensee of thatFab Mall. Petitioner was present when sale of theabove food item was effected by the complainant.Sampling of that food item was carried out in thepresence of petitioner and also witnesses inaccordance with the Act and Rules and a mahazarwas prepared at the spot evidencing the steps takenby the complainant over the purchase and samplingdone. One among the samples taken and sealed, with Crl.M.C. NO. 1148 of 2008 3specimen impression of the seal used for samplingin a separate cover, was sent over to the PublicAnalyst and the remaining food samples, withspecimen impression of the seal, in separate coverswere sent over to the Local (Health) Authority andDistrict Food Inspector. Report received from thePublic Analyst revealed that the sample was coatedwith talc, which is prohibited, and thusadulterated. Local authority forwarded Form IIIreport to the complainant for launchingprosecution. Complainant thereupon sent separatepre-registered letters to the first and secondaccused seeking license and nomination details ofM/s Trinetra Super Retail Limited (Fabmall). Noreply was furnished to such letters. Afterascertaining that no P.F.A. nomination has beenmade by the above Private Limited Company, andalso collecting the details of the P.F.A. Licenseeand Directors of the Company, the above complaint Crl.M.C. NO. 1148 of 2008 4was filed. The first accused is the Store Manager,second accused the licensee and 3rd to 7th accusedare the Directors of M/s Trinetra Super RetailLimited (Fabmall), and all of them are responsiblefor day today affairs of the business and, thus,culpable for the offences imputed under the Act andRules, is the case of the complainant.3. Learned Senior Counsel, Sri. M.K.Damodaran,who appeared for the petitioner, assailed theprosecution proceedings arising from Annexure Acomplaint on the following challenges. It iscontended by the learned senior counsel that therewas inordinate delay in carrying out the analysisover the sample and launching the prosecutionagainst the accused persons by filing the complaintbefore the magistrate. The food item - Urd DalWhole over which prosecution is launched was keptpacked. Details of packing as revealed from thenoting made in Mahazar showed that it was Crl.M.C. NO. 1148 of 2008 5packed on 22.06.2007 with a further declaration thatits 'best before date' is 21.08.2007. For all statutorypurpose and for use, according to the counsel, the'best before date' is applicable. Though sample wascollected on 31.07.2007 complaint was filed afterlapse of six months and that is long after theexpiry of the best before period noted in thepacket. When that be the case, the inordinate delayin filing the complaint and prosecution steps takenhas seriously affected the right of the accusedpersons under Section 13(2) of the Act to send overthe second sample for analysis to the Central FoodLaboratory. Delay caused in filing the complainthas prejudicially affected the statutory rightconferred on the petitioner for having a secondanalysis since after such long delay even if anystep is taken under Section 13(2) of the Act thatwould not have served any purpose, is thesubmission. Learned Senior Counsel has relied on Crl.M.C. NO. 1148 of 2008 6two decisions of this court, both rendered bylearned single Judges, the first one in NarayanaSwami and another Vs. The Food Inspector andanother [2007 (2) KLT Suppl.158] and the latter in'Rama Moorthy Vs. Food Inspector' [2012(2) KLT 214]to contend that where the accused has beendeprived of the valuable statutory right tochallenge the analysis report on account of delayin filing the complaint, taking of prosecutionproceedings and its continuation against him wouldbe a futile exercise, and, therefore, it is liable tobe quashed invoking the inherent powers of thiscourt. The next line of attack projected to impeachthe prosecution is based on the decision renderedby the Apex Court in 'Pepsico India HoldingsPrivate Limited Vs. Food Inspector and Another'[2011 (1) SCC 176] for short 'Pepsico's case'. Thereport of the Public Analyst who had used DGHSmethod for analysis of the food sample could not be Crl.M.C. NO. 1148 of 2008 7relied upon, is the submission of the counsel. Thatchallenge based on the aforesaid decision is builtupon two premises - (1) there is no prescribed andvalidated method of analysis under Section 23 (1A)(ee) and (hh) of the Act and the DGHS method is not aprescribed method for analysis at the point of timewhen the sample was analyzed and (2) the RegionalAnalytical Laboratory, Ernakulam, where thesample is analyzed is not a laboratory notifiedappropriately as a laboratory specified forconducting the test over the food sample. Duringthe course of submission made I have expressed myreservations over the applicability of theaforesaid decision rendered by the Apex Court tothe present case. After the petition was heard, it isnoticed, setting forth the challenge canvassed asabove as an additional ground a petition has beenfiled to permit the petitioner to raise such groundsalso to assail the prosecution. Another line of Crl.M.C. NO. 1148 of 2008 8attack canvassed by the counsel is that in AnnexureA2 analysis report the Public Analyst has formedthe opinion that the sample is adulteratedfollowing a different prescribed standard for theitem of food, Urd Dal Whole. Whereas for Urd DalWhole the prescribed standard to be applied iscovered under A-18.06.06 of Appendix B what hasbeen taken as the prescribed standard by theanalyst, as seen from Annexure A2 report, to holdthat the food item is adulterated is under A 18.06.11of Appendix B, and that renders the report of thePublic Analyst unacceptable, is the submission ofthe counsel. That report cannot be the basis toprosecute the accused persons when the veryanalysis is based on a different prescribedstandard not applicable to the food item involved,is the submission of the counsel. With the abovechallenges it is also contended that Annexure A2report does not contain any finding that the food Crl.M.C. NO. 1148 of 2008 9item is injurious to health, which, according to thecounsel, should form the foundation to initiateprosecution for an offence under the Act and Rules.4. I do not find any merit in the challengeraised that delay in filing complaint with referenceto the 'best before date' printed in the packet offood item has a decisive impact in testing thevalidity of the prosecution proceedings commencedfor violation of the Act and Rules, based on ananalysis report of the sample food item revealingthat it was adulterated. Food item exhibited forsale in a Fabmall was purchased and samplecollected thereof by the complainant on 03.07.2007.That food packet contained a 'best before date' as21.08.2007 does not come to the assistance of theaccused for the reason that the complaint aftergetting analysis report of the sample collected andcompliance of other formalities to launchprosecution, was commenced six months later. Crl.M.C. NO. 1148 of 2008 10Whether the packet was exhibited for sale before orafter the date showing best before use in thepacket, the fulcrum on which the prosecution reststo proceed for offences under the Act and Rules isthe adulteration of the food item in that packet. Nodoubt, analysis report is the basis for thecomplaint. But, where the accused persons to beproceeded against include a company as in thepresent case requiring collection of furtherdetails as to who is its P.F.A. Licensee, nominationif any made by the company, and also names andparticulars of its directors, which can be done onlyafter issuing registered notices to the authoritiesand even to the company to be proceeded against,and getting replies thereof, naturally, there wouldbe some delay in commencing the prosecutionproceedings even where the analysis report overthe sample disclosed that it was adulterated. Howfar the right of the accused person to send over the Crl.M.C. NO. 1148 of 2008 11second sample for analysis resorting to hisstatutory right conferred under Section 13(2) ofthe Act has been prejudiced or in what way it hasbeen injuriously affected, is a matter that has tobe examined, if so raised, in trial on the evidencelet in the case. Without taking steps under Section13(2) of the Act and no finding entered on suchanalysis that the delay in sending the secondsample for analysis has materially affected thefinding to be entered over such sample, normally,no accused person proceeded under the Act andRules can contend that delay in filing thecomplaint after the food item was taken hasvitiated the prosecution against him. If at allthere was delay in filing the complaint aftergetting the analysis report whether the accusedhas taken steps under Section 13(2) of the Act for asecond analysis may be one among the groundswhich the court has to consider with other Crl.M.C. NO. 1148 of 2008 12materials placed in the case to test the validityand merit of the prosecution. At any rate, delay infiling the complaint after getting analysis reportcanvassed as a ground to impeach the prosecutionon the premise that it has affected the statutoryright of the accused under Section 13(2) of the Acthas no merit or basis at all. Decisions relied bythe learned Senior Counsel rendered in NarayanaSwami's case and Rama Moorthy's case, referred toabove, no doubt strike a different note. Thedecisions rendered by the Apex Court on the abovequestion evidently have not been brought to thenotice of the court while considering the casesunder the above referred decisions, and that hasresulted in expressing a view that delay in filingthe complaint after getting analysis report wouldcause prejudice to the accused since that woulddeprive him of his statutory right under Section13(2) of the Act. The apex court in 'Babulal Crl.M.C. NO. 1148 of 2008 13Hargovindas V. State of Gujarat' [AIR 1971 SC 1277]has held that unless an application to send thesample for analysis exercising right under Section13(2) of the Act has been made the vendor cannotcomplain that he was deprived of his right to havethe sample analysed. That view has been reaffirmedby three judges bench of the apex court in 'AjitPrasad Ramkishan Singh V. The State ofMaharashtra' [AIR 1972 SC 1631]. Challenge raisedin that case that the accused was deprived of hisright to have the sample analysed on account of thedelay in service of summons was repelled holdingthat the accused who never applied under Section13(2) of Act cannot complain that he has beendeprived of any right. So much so, the challengemade by the counsel with reference to the 'Bestbefore date' printed in the food packet to contendof the deprivation of statutory right of accusedunder Section 13(2) of the Act, without taking any Crl.M.C. NO. 1148 of 2008 14steps to exercise such right, to assail the merit ofprosecution, that too at its inception, has no valueor merit. If there is delay in filing the complaintafter getting analysis report that by itself cannotbe a basis to contend that there has been denial ordeprivation of the statutory right under Section13(2) of the Act to the accused person; but, suchdelay if that be so, may have relevance dependingupon all other materials produced in the trial ofthe case. A challenge that there was six monthsdelay in filing the complaint after the 'best beforedate' shown in the packet of food item, or evenafter getting the analysis report, can never be aground to question the prosecution and the validityof the complaint invoking the inherent powers ofthis court under Section 482 of the Code.5. Reliance is placed on 'Pepsico's case',by the learned Senior Counsel for the petitionerto impeach the prosecution based on Annexure A2 Crl.M.C. NO. 1148 of 2008 15report of the Public Analyst contending that DGHSmethod used by the analyst cannot be acted uponas it is not a duly prescribed method for analysisat the point of time when the sample of food itemwas analyzed. A further challenge is also raisedthat the Regional Analytical Laboratory,Ernakulam, where the sample is analyzed is not alaboratory notified for the tests conducted. Howfar and to what extent, the decision in Pepsico'scase has applicability to the case in handrequires to be considered. 6. In Pepsico's case, what were thequestions that arose for consideration aresuccinctly stated by the Supreme Court inParagraph (2) of the judgment. Whether there wasany prescribed and valid method of analysis underSection 23 (1A) (ee) and (hh) of the Act, to ascertainthe percentage of pesticides present in acarbonated beverage was one among the questions Crl.M.C. NO. 1148 of 2008 16that arose for consideration, to determine thevalidity of the analysis report and how far theopinion of analyst that pesticide residue detectedin the food item covered is injurious to health, and,therefore, adulterated within the meaning ofSection 2(ia)(h) of the Act. On the submissions madeby both sides in the case, what was the questionrequired to be considered by the Apex Court hasbeen stated in paragraph 37 of the decision, whichreads thus:“From the submissions made on behalfof the respective parties, it is apparentthat the width of the dispute to be settledin these appeals is not very wide. We areonly required to consider as to whether thepresence of of 0.001 mg of carbofuran perlitre found in the sweetened carbonatedwater, manufactured by the appellantCompany, can be said to be adulterated asper Rule 65 of the 1955 Rules and underSection 1(i-a)(h) of the 1954 Act,particularly in the absence of any Crl.M.C. NO. 1148 of 2008 17validated standard of analysis provided forunder the 1954 Act or 1955 Rules.”(underlining supplied) The Apex Court noticed the finding of thepublic analyst that the sample of pepsi sweetenedcarbonated water was adulterated was based onanalysis using the DGHS method, which found tracesof 0.001 mg carbofuran per litre in the said sample.No tolerance limit for sweetened carbonated waterunder Rule 65 had been prescribed at the point oftime when such analysis was made, but it was doneonly later, and the level of pesticide residue in thesample was within the tolerance limit subsequentlyprescribed was also taken note of. After formingsuch conclusion, in paragraphs 40 to 45 of thejudgment, the Apex Court considered the variousgrounds canvassed before the High Court, and thefindings made thereof. Among the grounds ofchallenge canvassed before the High Court the Crl.M.C. NO. 1148 of 2008 18absence of any prescribed and validated method ofanalysis for detection of pesticide residue insweetened carbonated water was canvassed of, tocontend that the analysis report which was basedon DGHS method was unacceptable, and that toowhen the laboratories, where the test for detectionof insecticides and pesticides in such article offood was not notified. High Court has repelled thechallenges holding that if such challenges were tobe accepted, the mechanism of the Act and the Rulesframed thereunder would come to a grinding halt.The Apex Court, as could be seen from thediscussion made in the judgment, was consideringonly the challenge canvassed before and repelledby the High Court with reference to the absence ofprescribed and validated method of analysis underSection 23 (1A) (ee) and (hh) of the Act in respect ofsweetened carbonated water for detection ofpesticides and insecticides in such food item. Crl.M.C. NO. 1148 of 2008 19Challenge against the report of analyst, who hadused DGHS Method to determine the pesticideresidue and, that too, when no tolerance limit forpesticide in the food item involved was prescribed,with no laboratory for the test for detection ofpesticides and insecticides in that article of foodnotified, was considered. Correctness of thefinding made by the High Court on such grounds ofattack, that alone, was considered by the ApexCourt, and that too with respect to the analysisover a sample of food item coming under'carbonated water', for which then no prescribedand validated method of analysis in determiningpresence of pesticides and insecticides residue norof the tolerance limit was fixed. Observations madeby the Apex Court in the decision over the use ofthe DGHS method and non-notification of thelaboratory where the test for detection ofinsecticides and pesticides in that article of food Crl.M.C. NO. 1148 of 2008 20item could be undertaken, has application only tothe food item covered by that case - carbonatedwater-with respect to which at the time when theanalysis was done over the sample by the publicanalyst no prescribed and validated method ofanalysis nor tolerance limit for presence ofpesticide residue was fixed. Those observationscannot be stretched to an extent as if the ApexCourt has rendered a decision that use of DGHSmethod for analysis over other food items andconducting of tests on those items in Statelaboratories are not sufficient to sustain theprosecution based on the analysis report from suchlaboratories. So much so, the challenge canvassedon the aforesaid decision by the learned SeniorCounsel to seek for quashing the complaint againstthe petitioner has no basis at all.7. Standard of quality of food item'urd dhal whole' is covered by Appendix B A-18- Crl.M.C. NO. 1148 of 2008 2106-06, and in analysis standard applicable for'split pulse (dhal urd)' was followed is anotherchallenge raised by the counsel to impeach theprosecution based on Annexure A2 analysis report.Standard prescribed for 'urd dhal whole' inAppendix B 18.06.06 and that of 'split pulse dhalurd' in Appendix B 18.06.11 are similar in allrespects, other than the tolerance limit withreference to the total of foreign matter, which inthe case of 'urd dhal whole' shall not exceed 9% byweight and that of 'split pulse dhal urd' not toexceed 8% by weight. In the present case, it is noton the basis of the standard prescribed under 18-06-06 or 18.06.11 the food item is held to beadulterated, but, on the general prescriptionrelating to food grains, which includes urd dhalwhole, stated in Appendix B A-18-06. Standardprescribed in Appendix B in A.18.06.06 which is Crl.M.C. NO. 1148 of 2008 22applicable to food grains in general, fixing forthem standard quality, separately, mandates thatin addition to the standards prescribed, the foodgrains shall be 'free from added colouringmatter'. The food item in the present casecontained a colouring matter 'talc', which isprohibited, is the finding made in the analysisAnnexure A2 report to hold that the sample isadulterated as per Section 2(ia)(b) of the Act.Presence of 'talc' in the food item regardless ofits colour would make the article adulterated(See Rajan v. Food Inspector {2011(4) KLT 184)}. 8. Learned Senior Counsel, referring toAnnexure A2 report has contended before me thatthe absence of any finding in such report by theanalyst that it is injurious to health other thanstating that the food item is adulterated is notsufficient to act upon that report to prosecute Crl.M.C. NO. 1148 of 2008 23the petitioner for the offence under the Act and theRules. A food item shall be deemed to be adulteratedfor one or other factors covered by the definition of'adulterated' under Section 2(ia) of the Act, whichare specifically dealt with under clauses (a) to (m)of that definition clause. Where 'talc' allegedlydetected in the sample of food item is a prohibiteditem nothing more need be stated in the analysisreport other than that the food item is adulteratedas falling under Section 2(ia)(b) of the Act toprosecute the persons who are shown to be culpablefor the offences punishable under the Act and theRules. There is no merit in any of the challengesmooted by the petitioner/1st accused to assail hisprosecution arising from Annexure A1 complaint.Petition is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGEsk/-/true copy//