Allowed

Pasuparthy Dattatreya, v. The State of Andhra Pradesh

Telangana HC8 Apr 2011CRLP/5584/2008

Case brief

AI extract

What is this about?

The Court allowed a criminal petition under Section 482 Cr.P.C. to quash food adulteration proceedings. It held that the delay in serving the public analyst report rendered the sample unfit for re-analysis before the expiry of the "best before date," thereby violating statutory safeguards and depriving the accused of their right to establish innocence.

What did the court decide?

The criminal proceedings in S.T.C.No.68 of 2008 are quashed, allowing the claim of the petitioners.

Pasuparthy Dattatreya, Vs The State of Andhra Pradesh — Cheque Dishonour | Telangana HC (2011)

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HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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CRIMINAL PETITION.No.5584 of 2008

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ORDER:

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This Criminal Petition is filed under Section 482 Cr.P.C. to quash proceedings in S.T.C.No.68 of 2007 on the file of the Court Judicial Magistrate of First Class at Tirupathi, Chittoor District.

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2. The petitioners are the accused and the respondent is the complainant in the calendar case. For the sake of convenience, I refer them hereinafter as arrayed in the calendar case.

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3. In the calendar case, the petitioners have been charged for offences punishable under Sections 7 (i) & 2 (ia) (m) and 6 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 on the ground that on 28-12-2005 at about 12.30 noon, the complainant along with others went to the shop of the 1^st petitioner, situated at M/s. Pasuparthy Super Market, 10-2-138/1-A, T.K. Street, Tirupati, and at that time, the accused as vendor and owner of Pasupathy Datthatreya, was selling ‘Fortified Bournvita (Beverage)’ 500 gms company sealed packet meant for human consumption as food article, and after inspecting the shop, and on suspicion, the complainant intended to lift the food sample, and called for witnesses and purchased 3 sealed 500 gms packets of ‘Fortified Bournvita (Beverage)’ kept in the shop as human food article by paying Rs.309/- as samples and obtained necessary receipt and the sample was sent to the public analyst, Sate Food Laboratory, Hyderabad, through Local (Health) Authority, Zone-II, Kakinada, for necessary analysis and report all observing necessary formalities, and in-turn, the public analyst sent his report after due analysis ”the sample does not confirm to the standard of coliform count and therefore, adulterated as per Section 2(ia) (m) of the Prevention of Food Adulteration Act (‘for brevity ‘the Act’)’, basing upon which, the

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complaint was filed which was taken cognizance of by the learned Magistrate after observing necessary formalities against the accused as the vendor and others connected with the product.

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4. It is the contention of learned counsel for the petitioners that the product was packed on 17-03-2005 and its ‘best before date’ happened to be 12 months from the date of its packing, but the corresponding notice under Section 13 (2) of the Act, 1954, was served upon the petitioners on 28-01-2007 i.e. almost one year 9 months after the ‘best before date’ and after the receipt of notice, the petitioners lost their valuable right to get the standard of the food article analyzed by the Central Food Laboratory as the sample would not be fit for analysis by that date and therefore, there is violation of Rule 9 (b) of the Prevention of Food Adulteration Rules, 1955 and Section 13 (2) of the Act, by reason of which, he has been deprived of very valuable right to establish his innocence to get necessary report from the Central Food Laboratory on the analysis of the second sample taking necessary precaution. In support of his contention, he has relied upon the following decisions.

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1. Nebh Raj vs. State (Delhi Administration )^[1] ,

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2. State of Haryana Vs. Unique Farmaid Pvt. Ltd .^[2] ,

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3. Shri Rohit Mull and Cadbury India Ltd. Vs. The State of Goa^[3] ,

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4. Konda Suryanarayana and Others vs. State of A.P .^[4] ,

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5. Smt. I.Savitri (alilas Saraswathi) and others vs. State of A.P. and anothe r^[5] ,

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6. M/s.Ruchi Infrastructure Ltd. Vs. Food Inspector, Division-II, Nalgonda^[6] and

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7. Medicamen Biotech Ltd., and another vs. Rubina Bose, Drug Inspecto r^[7] .

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5. It is the contention of learned counsel for the respondent that by virtue of Section 13 (2) of the Act, only on the application to be filed by the petitioners, necessary steps were to be taken and in the absence of such application, it cannot be said that the relevant provision of law was violated.

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6. Section 13 (2) of the Act mandates that necessary opportunity should have been given to the accused for the purpose of sending the second sample for necessary analysis in the Central Food Laboratory before ‘best before date’. As contended by the learned counsel for the petitioner, in I.Savitri’s case (5 supra), it is observed when similar question arose that there is abnormal delay in the service of a copy of the analyst report on the accused, and on the sample bottles, it is printed as “best before May 2000” and a copy of the analyst report ought to have been served on the accused immediately after the receipt of the analyst report on

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24-12-1999 to enable the accused to file an application to send the other sample to the Central Food Laboratory and as the report was served only in the month of March 2000, by which time, the expiry period was already over, no purpose would have been served by sending the sample to the Central Food Laboratory and as the accused lost his valuable right to establish his innocence and hence, the Criminal Petition should be allowed.

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7. Further, in Unique Farmaid Pvt Ltd. (2 supra), similar observations were made under similar circumstances, and it is further held that if the expiry date of sample is not relevant, there is no reason why in the form prescribed for the submission of the report by the insecticide analyst, the date of manufacture of the article and the expiry date are mentioned and further held Section 30 (1) of the Insecticide Act, 1968, only prescribes in effect that ignorance would be no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused got no remedy. Further,

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i n Rubina Bose (7 supra), it is observed taking into consideration relevant facts and circumstances of the case, that there is no explanation as to why the complaint itself had been filed about one month before the expiry of life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed and so on and the facts of the case suggest that the appellants were deprived of the valuable right to ascertain their innocence by way of taking necessary measures. The observations made hold good to the facts and circumstances of the present case.

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8. Therefore, a copy of the public analyst report should have been served on the accused quite earlier to the best before date for the purpose of taking necessary steps for sending the 2^nd sample to the Central Food Laboratory for analysis and report to prove his innocence of the allegations and the omission is fatal.

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9. Also virtue of Section 13 (2) of the Act itself, on application made by the accused, necessary steps are to be taken. This is only directory and it is subject to the mandatory provision of giving opportunity to the accused to send the second sample to the Central Food Laboratory for analysis to prove his innocence.

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10. Therefore, in view of the various decisions rendered by the Apex Court, and, for the reasons discussed above, it is nothing but abuse of process of law to allow the proceedings in the calendar case to be continued, and hence the proceedings are to be quashed upholding the claim of the petitioners.

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11. In the result, the Criminal Petition is allowed quashing the proceedings in S.T.C.No.68 of 2008 on the file of the Court Judicial Magistrate of First Class at Tirupathi, Chittoor District, taking recourse under Section 482 Cr.P.C.

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__________________________________ JUSTICE G. KRISHNA MOHAN REDDY

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Date: 08-04-2011 KVR

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