Allowed

M/S Hindustan Coca-Cola Marketing Co. Pvt. Ltd. and Ors. v. the State of Mah

Bombay HC2 Apr 2012WP/245/2012

Case brief

AI extract

What is this about?

The High Court of Bombay at Aurangabad allowed a criminal writ petition seeking quashing of prosecution under the Prevention of Food Adulteration Act. The Court held that the prosecution was vitiated because the Public Analyst's report was received after the food article's best-before date, depriving the accused of meaningful right to reanalysis.

What did the court decide?

Regular Criminal Case No. 622 of 2004 and all processes and warrants against the petitioners were quashed.

M/S Hindustan Coca-Cola Marketing Co. Pvt. Ltd. and Ors. Vs… — Quashing and FIR | Bombay HC (2012)

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crwp245.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 245 OF 2012

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1. M/s. Hindustan Coca-Cola Marketing Co. .. Petitioners Pvt.Ltd., having its registered office at 13, Abul Fazal Road, Bengali Market, New Delhi – 110 001. Through its QA Executive - Pitambar K. Shewale.

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2. Shri Joel Allan Peres Adult of Indian Inhabitant having his office address at Enkay Towers Vanijya Nikunj, Udyog Vihar, Phase V, Gurgaon-122 106.

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3. Shri Sanjiv Gupta, Adult of Indian Inhabitant, residing at Flat No.392, Sector 19B, Sanskriti Apartments, Dwarka, New Delhi.

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4. Shri Milind Sathe, Adult of Indian Inhabitant, currently having office address at 2, First Pokrovsky Proez Koteinki Moscow Region, 140053, Russia.

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5. Shri Amit Jain Adult of Indian Inhabitant, having his address at DLF Cyber Terrance Building No.4, Tower A, 20^th Floor, DLF Cyber City, Phase III, Gurgaon 122 002, Haryana, India.

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Versus

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The State of Maharashtra.. Respondent

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Mr. Amit Desai & Mr. Kirti H. Parekh with Mr. D.S. Bagul & Mr. S. Srivastawa, Advocates for the petitioner.

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Mr. N.H. Borade, A.P.P. for respondent/State.

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( 2 ) crwp245.12

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CORAM : A.V. NIRGUDE,J. DATED : 02.04.2012

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ORAL JUDGMENT :-

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1.Heard. At this admission stage, there is
possibility of disposal of the petition. Counsel for the
parties have no objection if the petition is disposed of at
this stage.

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2. Rule. Rule made returnable forthwith.

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3.This petition filed under Article 227 of the
Constitution of India and under section 482 of the Cr.P.C.
seeks quashment of Regular Criminal Case No. 622 of 2004,
pending before the Chief Judicial Magistrate, Jalgaon, in
which the petitioners are accused Nos. 3 to 7.

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4.The facts leading to the prosecution of the
petitioners and others under certain provisions of the
Prevention of Food Adulteration Act, 1954, can be narrated as
under :-

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.Petitioner No.1, a private limited company, which
admittedly supplied the questioned cola to accused Nos. 1 & 2
sometime after March 2002. The cola bottles were manufactured
in March, 2002 and had expiry date of six months. Food item
in the bottle thus could have been consumed safely before
September,2002. On 25th July, 2002, the Food Inspector/
Complainant took sample by buying six bottles of "Sport cola"
and on the next day the sample from the bottle was sent for
chemical analysis. During next one month the analysis took
place and apparently it did not confirm the standard
prescribed under the Act. The Public Analyst sent his report

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on 25th September, 2002. Admittedly, on 26th September the
food article in question had expired best before period. Two
years thereafter on 13th September, 2004, the local health
authority (consenting party) took its decision for launching
prosecution of the petitioner and other accused. The
complainant lodged his complaint in the Court of C.J.M.,
Jalgaon, on 20.10.2004. The cognizance was taken and process
was issued. It is stated that the process was never served
on the petitioner, but somehow they learnt about the same in
December, 2011 and thereafter this petition is filed on
22.03.2012.

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5.Several points were raised for challenging the
legality of action taken against the petitioner, but I think
only one is sufficient to stop the proceeding initiated by
the complainant. On the fact of it, it is clear that the
complainant did not take care to obtain the report of the
Public Analyst prior to the date of expiry of food article.
If the report itself came to him belatedly i.e. after the
expiry period of the food article, he ought not to have taken
further steps in the case. For him the case got stale. He
was already aware that there are no chances for success in
the case. This is the position of law as laid down by the
Supreme Court in various judgments. First one is the case of
Municipal Corporation, Delhi Vs. Ghisa Ram, AIR 1967 S.C.970,
in which it is held that the right of an accused under
section 13 (2) of the Prevention of Food Adulteration Act, is
a valuable one and its violation would result into failure of
the prosecution. In this case, the report of the analyst was
sent one day after the best before period. The prosecution

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was launched two years thereafter. Then it was mandatory for
the complainant to send a copy of the report to all the
accused. After getting such copy they were entitled to get
the sample re-analysed. This was their valuable right. They
could not have got it re-analyzed mainly because, by then the
food article of which sample was taken way back in 2002 had
lost its efficacy and food value. In such situation, there
was no possibility of meaningful chemical reanalysis. In
this context, I observed above that the complainant ought to
have taken report from the Public Analyst prior to the best
before date mentioned on the bottle. In view of this basic
and blatant failure on the part of the complainant, further
proceedings were acts in futility. The complainant ought not
to have taken consent for prosecution, the authority ought
not to have given consent and learned C.J.M. ought not to
have taken cognizance of the case.

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6.I am told that this is not a stray incident of
apparently wrongful prosecution. On number of earlier
occasions this kind of erroneous/wrongful prosecutions were
lodged and this Court in the case of Shivkumar alias
Shiwalamal Narumal Chugwani Vs. State of Maharashtra, 2010

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FAC 411, took serious note of it and directed prosecution of
the Food Inspector. The Supreme Court affirmed the judgment
of this Court in the case of Shivkumar (Supra), vide its
judgment reported in 2011 (1) FAC 41. The stand taken by this
Court on the issue of right of the accused under section 13
(2) of Prevention of Food Adulteration Act and its breach
etc. is affirmed by the Supreme Court in this judgment. It

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is, thus, clear that the law is laid down and in view of
apparent denial to the petitioner, the right to challenge the
report of the Public Analyst, the prosecution stands vitiated
and deserves to be quashed.

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7.The petition is allowed. Rule is made absolute in
terms of prayer clause (A). In view of this, Regular
Criminal Case No. 622 of 2004 stands quashed and all orders
issuing processes and warrants against the petitioners as
well as other accused stand quashed.

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snk/2012/APR12/crwp245.12 ****

M/S Hindustan Coca-Cola Marketing Co. Pvt. Ltd. and Ors. v. the State of Mah

Case brief

What is this about?

What did the court decide?

M/S Hindustan Coca-Cola Marketing Co. Pvt. Ltd. and Ors. v. the State of Mah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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