Dismissed

The State of a.P., v. Kotla Jagadesh

Telangana HC16 Feb 2022CRLA/1871/2009

Case brief

AI extract

What is this about?

State appeals against acquittal in two food adulteration complaints over seized Thums Up and Limca samples. Notices under Section 13(2) of the Prevention of Food Adulteration Act were issued only after the products' "best before" dates, by which time the samples had deteriorated. The accused were thus denied their valuable right of re-analysis by the Central Food Laboratory, which the court held f

What the court decided

AI extract

The State of a.P., Vs Kotla Jagadesh — Criminal Trial and Appeal | Telangana HC (2022)

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IN THE H'GH COURT FOF o,,"orJ*.o?rff^{E oFTE LANGA NA}

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WEDNESDAY, THE SIXTF rwbri.rou'si',0;;i[ti*rAyr?t$,%rRUARY

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PRESENT

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THE HONOUR.ABLE DR. JUSTICE CHILLAKUR SUMALATHA CRIMINAL APPEAL N :18 71 AN D1 886 F2 0

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c R IM INALAP PEA LNO : 18710F2 09

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criminar Appear fired Under section 378 (4)(5) and (1)of code of criminar Procedure against the Judgment dared. 10-04.2008 passed in c.c.No.90 0f 2oo5 on the fire of the court of the Judiciar tvagistrate of First crass, Devarakonda.

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Between:

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5:", fi?'f "31^{AT[45il:flfit,.i;B!i'"n'"0 bv the pubric prosecutor. His h}

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AND

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...AppellanUPetitioner

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1 Kotla Jagadesh, S/o.Narayana. Vendor proprietor (Dealer) M/s.Balaji Cool D ri n k A g e n c ies. Ir/ a i n Ro a d K. t\i. p; I ty Vt I ta g;,'^-ti6vJiaio n o a rr,la na a r

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2 Y.V.S.S.Subba Rao, S/o.Venkat Rao Nominee of M/s.Hindusthan Coco-Cola Beverage (P) Limited, Moula Ali Unit 44-69 Hyderabad

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3 lV/s.Hlndusthan Coco-Cola Beverage (P) Limited, Moula Ali Unit 44-69 Hyderabad.

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... Res po n de nUAcc used

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Counsel for the Appellant: THE ASSISTANT PUBLIC PROSECUTOR (TG)

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Counsel for the Respondentl :----

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Counsel for the Respondent2:^{SRI N.B. SUDARSHAN}

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Counsel for the Respondent^{No'3:SRI SRINIVASA IYENGAR}

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{

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CR^IMIN AL AP P L N Oi 1 871^OF 2009 and^{(1) of Code of Criminal} I filed^{Under Section378 (4) (5)} Criminal^APPea assed^{in C C No Bg of 2005} ment^{dated'10 04 2008 P} Procedure^{against the Judg} e Judicial^{Magistrateof First Class'Devarakonda'} on the^{file of the Court of th}

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Between: the^{Public Prosecutor' High} a Pradesh'^{representedbY} The State^{of Andhr} co"rtt"oT^{n"irrra Pradesh Hyderabao'}

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...APPetlanUPetitioner

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AND ,[?,1?,^1r$i?:i:fi il)&i?,"[1,uY.'liil"ifi :"JJ:'J:ll*fl^{".i]]ll,';R3:1i''""'}

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,Lv,S;13i8!iln?:;:'fi "",",ihilSif^{[:[uiff ,iJ,rvr/sHindusthancoco-cora}

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M/s.Hlndusthan^{Coco-Cola Beverage (P) Limited'MoulaAti Unit 44-69} Hyderabad.

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...RespondenUAccused

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Counsel^{for the Appellant:THE ASSISTANT PUBLICPROSECUTOR (TG)} Counsel for^{the ResPondentl:--'-}

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Counsel for^{the Respondent2:SRI N'B' SUDARSHAN}

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Counsel for the^{RespondentNo.3: SRI SRINIVASA IYENGAR}

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The Court made the following:^{COMMON JUDGMENT}

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EONOURAB^{LE Dt' JUSTICECHILLAKVR SUMALATHA} of 2009 L Nos. ),a7 1^and1B86 CRIMI^NALAPPEA

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COM^MONJUDGMENT:

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Criminal^{Appeal No'187 1 of 2009 is filed by the State} aggrieved^{by the judgmentof acquittal that is renderedby} theCourtofJudicialMagistrateofFirstClass, Deverakonda^{in C'C'No'9O of 2OO5' dated 1O'4'2008'}

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Criminal^{AppealNo'1886 of 2009 is also filed by the} 1S State^{aggrieved bY the judgmentof acquittal that} the^{same daY but} 1n rendered^{bY the sameCourton} C.C.No'89^{of 2005'}

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The^{accusedin both the CalendarCases are one and} the^{same. The saidaccusedare the respondents in these} Appeals'^{Thus' for convenienceof discussion' the appeilant} would^{hereinaJter be referredas "the complainant" and the}

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resPondents^{as "the accused"'} 4. out^through The^{facts of ttre complarnts the case' in filed nutshell' in both the as could cases are be culledthat} on^{18'06'2004'at about 4 pm' P'W-1' who is a GazelLed} Food^{lnspector' inspectedM/s Balaji Cool Drinks Agencies} which^{is locatedat K'M'PallY Village', DeverakondlMa1{d:}

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') DiCSL, J c.1..1. Not I E7 I & I 8E6 of 2009

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Nalgonda District and at that time, Accused No.l was present and was transacting the business of cool drinks. In the presence of p.W-2, who is an independent witness, P.W-1 enquired Accused No.1 about the cool drinks. Accused No.1 informed that Thums Up crates TOO x 24 x 2OO ml (subject product in Cr1.A.No.1886 of 2009) are meant for sale to public for human consumption. He also informed that Limca crates (subject product in Crl.A.No.1871 of 2009) are also meant for sa_le to public for human consumption. Suspecting adulteration, p.W_ I purchased three sealed bottles of Thums Up and three sealed bottles of Limca, 200 mi each, and paid the price. Notices as required under Form VI wer e issued to Accused No.l. The seized products were sea.led ard labelied AS required under law. purchase bills were produced by Accused No.I for both the products. Separate panchanamas were drafted. 5. On 19.6.2004, one part of the seaied sample bottles (Thums Up and Limca) were sent to the Public Analyst for analysis under intimation to Local (Health) Authority Letters were addressed to Accused Nos.2 and 3-firms. The

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D|.CSL.J C,LA.Nos l87t^&lEE6oI2009

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Public Analyst^{delivered separate reports on 15'7'2004'The} opinion of the^{Public Analyst as far as the sampleof Thums} Up cool drink^{is concernedis that it does not conformto} the standard^{of total plate count and therefore' adulterated'} The opinion^{of the Public Analyst as far as the sample of} Limca cool^{drink is concernedis that it does not conformto} the staldard^{of total plate count' yeastsand molds count} and therefore,^{adulterated' Detailed case files were} submitted^{to the State Food (Health)Authority'Hyderabad} on 12.8'2OO4-^{The Director' I'P'M'PH Labs and Food} (Health) Authority,^{Hyderabad,accorded writtenconsent on} 24.01..2OO5^{to launchprosecution against the accused'}

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The complaints^{were taken on file by the Courtof} Judiciai Magistrate^{of First Class' Deverakonda' The said} Court issued^{summonsto the accusedin both the cases} and thereafter^{proceededwith the trial in both the cases'} On recording^{the evidence ald subjectingit to scrutiny'the} learned^{judge of the trial Court finallycame to a conclusion} that the^{complainant failed to establish its caseand} therefore,^{acquitted the accused of the offenceswhich' as} pertheversionofthecomplainant'wereallegedtohavE

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DT,CSL, J crLA.NostETt &t6E6 of 2009

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been committed by them. Aggrieved by the said judgments of acquittal, the State is before this Court through these appeals.

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Learned Assistant public prosecutor appearing on behalf of the State-complainant made her submission that the impugned judgments of the trial Court are erroneous and the complainant established through the evidence before the trial Court that the Food Inspector seized the Thums Up and Limca bottles from the shop of Accused No.l suspecting that they were adulterated arld that the said seizure is as per the procedure established under the Prevention of Food Adulteration Act, 1954 (hereinafter be referred as "the Act, for brevity) and the seized products were sealed and labelled as provided under the same legislation. Thereafter, one part of the seized products in both the cases were sent to the public Analyst for analysis. She further states that the public Analyst delivered his reports stating that the samples sent for alalysis are found adulterated and therefore, after obtaining written consent from the concerned, prosecution was launched by way of complaint. The complainant, by al1 the evidence it qas

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C.LA. Nr, I I ?t & n{; :;kb{

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Produced, has estal beyond aII reasonable doubt that the seized ,roor"'"n". :cts are adulterated, but, without considering the same, the Iearned judge of the tria-l Court acquitted the accur *n'"h is unreasonable' Learned Assistant pubric^-"' rsecutor also contends that the trial court based on the Bravrty of the offence ought to have convicted the accused, but it did not do so and therefore, the State preferred the present appea.ls. She finaJly submits that considering the evidence that is brought on record, the accused have to be convicted. 8. Opposing the said submission, the 1earned counsel appearing for the respondents_accused in both the cases submits that the procedure adopted for search a'd seizure are erroneous and therefore, the tria-l Court, considering the same, extended the benefit of doubt. The learned counsel further submits that apart from the aforementioned 1apse regarding search and seizure, the major lapse is that no opportunity was given to the accused for sending the sample for re-analysis to the Central Food Laboratory. The said right is a valuable right which 1S granted to the accused by the Act and when such an

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z-t'

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Dt csl' '^J 6 CtLA.Nos^{lsTl &18E6of 2009}

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opportunity^{is d'eniedto the accused by the complainant'} any length^{of evidencewould not bind the accused and} observing^{the same' the accused wereacquitted by the trial} Court.

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g. Thus,^{in the iight of the abovecontentions and rival} contentions,^{the point that emerges for consideration is} whether^{the complainanthas established its case beyond} all reasonable^{doubt beforethe trial Court' Before deciding} the said^{point, in the light of the submission of the learned} counsel for^{the accused that the valuable right of the} accused to^{get the samplesre-analysed through the Central} Food Laboratory^{was deniedand therefore, the case of the} complainant fails,^{the point that has to be discussed and} decided is:

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Whether the ight of^{the accused} for^gettingthe samples re-analgsed^{throughthe CentralFood} Laboratory utas^{denied bg the complainant and} if so, whether the said^{denial is} fatal^{to the} case of the comPlainant.

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10 To analyse and discuss the merits in the contenti0ns of the learned Assistant public prosecutor who is appearing for the appeltant/complainaat and the iearned counsei for I

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D..CSL. J C.LtlNot I E7 I &^{lEE6of 2009}

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the respondents/ accused,^{few dates and eventsrequires a}

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prominent mention, which^{are as follows:-}

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sl. No	Dateof event	Thumsupwhich^is subjectmatterin Crl.A.No.1886^of 2009	Limcawhich subjectmatter Crl.A.No.1871of 2009	1S in
1 I	Date of manufacture	1O.6.2004	tI.6.2004
2.	Bestbefore	Six months=O9^{.1 2.2OO4}	Six months=10.12.2O	O4
3	of insection Date	78.6.2004	18.6.2004
4 l	Dateon sample sentto which was Public	79.6.2004	79.6.2004	I
	Anal St		I
c	Dateon^which PublicAnalYst delivered^his	15.7.2004	75.7.2004
	re ort
6	Dateonu,hich writtenconsent wasobtained^to launch	24.01.2005	24.01.2005	I
	rosecution
7	Dateonwhich complaint^was	28.O2.2005	28.02.2005
	filed
B	Dateon^whic cognizance theoffence^was h of	05.3.2005 I	05.3.2005
I	taken Date^on notice which was issued^under Secti,on^13(2)of theAct I I	09.3.2005	os.s.zoos	1

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t-'

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8 DrCSL. J CtL.4.Nos I Ez I &t E66 of 2009

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Bringing to the notice of this Court the above events, the learned counsel for the respondents/accused contends that the product in both the cases were seized on 18.6.2004, notices under Section 13(2) of the Act were issued on 09.3.2005 i.e., after "best before date,, of the seized products and therefore, the accused rost their valuable right of getting the samples re_analysed through the Central Food Laboratory ald thus, the prosecution fails. Learned counsel also states that getting the sample re-analysed through the Central Food Laboratory is a va'luable right that is given to the accused under the provisions of the Act and as the said va_luable right is denied, the trial Court rightly acquitted the accused.

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On the other hand, the learned Assistant public Prosecutor contends that though the samples are nor subjected to re_analysis by the Centra.l Food Laboratory, yet the reports of the public Ana.lyst are available on record, which clearly goes to show that the seized products are adulterated ald the genuineness of the reports of the Public Analyst carnot be doubted. Hence, the trial Court

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DT.CSL , J CtL.4. t'os. I 8⁷ I & I 8E6 ol 2009

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ought to have convicted the accused basing on the said reports.

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As rightly submitted by the learned Assistant Public Prosecutor, the reports of the Public Analyst, which are marked as Ex.P-23 in both the cases, goes to show that he is of the opinion that the samples does not conform to the standards and therefore, they are adulterated.

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Thus, as per the version of the learned Assistant Public Prosecutor, though the seized^{samples are not} subjected to^{re-analysisthrough the Central Food} Laboratory and though^{the said opportunity is not givento} the accused,^{yet basing on the reports of the Public} Analyst, the^{Court can pass judgmentof conviction on the} ground that^{the prosecutionhas proved that the seized} samPles^{are found adulterated'}

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The^{Prevention of Food AdulterationAct' 1954 is} aimed^{at prevention of adulterationof food' It deals with} prohibition^{of m anufacture, storing,sare or distributionof} arly^{adulterated and misbrandedfood' etc' In the said} legislation,^{Section2(i) defines what an 'adulterant'isand} Section^{2 (ia) defines what'adulterated'means}

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l0 DT.CSL . J CtL 4.No!lE7l &lEE6 o12009

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Section 2(ii) of the Act defines "Central Food Laboratory" as any Laboratory or institute established or specified under Section 4. Section 11 of the Act envisages the procedure to be followed by Food Inspectors. Suffice to mention that as per Section 1 1(3) of the Act, when a sample of any article of food (or adulterant) is taken, the Food Inspector shal1, by the immediately succeeding working day, send a sample of the article of food or adulterant or both in accordance with the Rules prescribed to the public Analyst for the local area concerned. Therefore, it is clear that immediately i.e., on the very next working day of selzure of the food material, the Food Inspector is bound to send the same to the public Analyst for analysis.

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17 ' coming to the next stage, Rule-7 0f the prevention of Food Adulteration Rules, 1955 (hereinafter be referred as "the Rules" for brevity) lays down that in case, the sample container received by the public Ana-lyst is found to be in broken condition or unfit for analysis, he sha_ll within a period of seven days fi

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inrorm the Locar,rJ;,::f"; ;r:J, :: ""-;: send requisition to him for -- vvrrqurBsending se con cond part of the\ \ _

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DI,CSL, J 11 C|LA.Nos 1E7) &.18E6 of 2009

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sample. The said Rule also lays down that if the Public Analyst causes the sample to analysis, he shall within a period of 4O days from the date of receipt of such sample for analysis send his report of the result^{of such analysisin} Form III to the Local^(Health) Authority.

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Coming to the next^{stage,as per Section 13(2) of the} Act, the Local (Health) Authority,^{a-fter the institutionof} prosecution against the^persons from^{whomthe sample of} the article of food was taken^{and the personswhose} particulars have been disclosed^{under Section 14A of the} Act, shall forward a^{copy of the report of the result of the} analysis to those^{personsinforming that if they so desire,} can make an application^{to the Court, within a period of} ten days from^{the date of receipt of the copy of the report'} to get the^{sample of the article of food kept by the Local} (Health) Authority^{analysed by theCentral Food} Laboratory.^{Thus, it is clear that a'fter receipt of the report} ofthePublicAnalyst,ifthecomplainarrtgetssanctionfor institution^{ofprosecution,the Loca-l (Health) Authority} such institution^{of prosecution' send the} should,^after Public^{Analyst tothe concerned duly} report of^the

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DT.CSL , J CrLA.\otlETl &18E6 of 2009

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mentioning that they can get the sample analysed through the Central Food Laboratory by filing an application before the Court concerned within 1O days from the date of receipt of the report.

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Under Section 13(2A) of the Act, it is clearly mentioned that when an application is made to the court under sub-section (2), the Local (Health) Authority sha1i forward the part or pa-rts of the sample to the court within a period of five days from the date of receipt of such requisition. Furthermore, Section 13(2B) of the Act enlltsages that when such part of sample is sent to the Central Food Laboratory, the Director of the Centra_l Food Laboratory on analysis shall send a Certificate to the Court in the prescribed form specifying the result of analysis within one month from the date of receipt of the part of the sample. Thus, at every stage, the Act has fixed the time lines to be followed by all concerned so that the culprits would be booked under law and further, the so_ca.lled accused would not lose their opportunit-v of getring the sample re_analysed through the Central Food Laboratory.

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1i D.-CSL, J C|LA.Lbr1E7l &1886 of 2009

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Now, coming to another crucial aspect, i,e., in respect of the va-lue to be attached to the report of the Central Food Laboratory, the submission of the learned Assistant Public Prosecutor, as earlier narrated, is that despite not sending the samples for re-analysis to the Centra1 Food Laboratory, as the reports of the Public Analyst are available on record, which discloses that the sampies sent are adulterated, the sarne can be taken into account by the Court of law^and the Court can convict the accused basing on the^said reports.

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2L. No doubt, the report of a Public^{Analystis the report} of a public servant, that^{too, having required qualification'} But, in this regard,^{the provision of 1aw that is envisaged} under Section^{13(3) of the Act needs a mention'Section} 13(3) of the^{Act envisages as follows:-}

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issued bY^{the Director of the} "The^certificate Central^Food Laboratory^{shali suPersedethe} report^{given by the Public Analystunder sub-} section^(1)." 22.^{Therefore, it is clear that the certificate issuedby the} Director^{of Central Food Laboratory shallsupersedethe} report^{given by the PublicAnalyst' Thus'a higherdegreeo{}

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t4 D..CSL, J C.LA.Lbl.l E71 &1886 of 2009

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value should be given to the certificate issued by the Director of Central Food Laboratory than that of the report given by the Public Analyst. If the accused are not afforded the opportunity of getting the sample re-analysed through Central Food Laboratory, it carnot be held that the report of the Public Anaiyst is sufficient to act upon and pass a judgment of conviction holding that the seized product is adulterated.

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This view of mine gains support from the judgment of the Honble Supreme Court in the case between Laborqte Phannaceutl.cals Indto. Llmited. qnd, Others Vs, State of Tamllnadur, wherein their Lordships, dealing with similar set of facts, at para g held as follows:_

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"Al1 the aforesaid facts would go to show that the valuable right of the appellant to have the sample analysed in the Central Laboratory has been denied by a series of defaults committed by the prosecution; firstly, in not sending to the appellant manufacturer part of the sample AS required under Section Xg)(iil of the Act; and secondly, on the part of the Court in taking cognrzance of the complaint on 4_3_201S though

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I(20t8) ls scc 9j

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D..CSL, J CtLA.Nos.lETl &1E86 of 2049

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the same was filed on 28-11-2012. The delay on both counts is not attributable to the appellants and, therefore, the consequences^{thereofcannot} work adversely to the interest of the^appellants. As the valuable right of the accused^{for reanalysis} vested under the Act appears to^{have been} violated and having regard to the^{possibleshelf} life of the drug we are of^{the view that as on date} the prosecution, if allowed to^{continue,would be} a lame prosecution."

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Though in the^{said case, the provisions of the Drugs} and Cosmetics Act,^{1940, were dea-lt with, yet, the same} analogr is applicable^{to the provisions of the Prevention of} Food Adulteration^{Act, 1954.}

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Dealing^{with the sarne scena'rio,the Hon'bleSupreme} Court in^{the case betweenMedipot PharmaceutlcalIndia} Put. LtdVs.^{Post Graduate Institute oJ MedlcalEducatlon&} Research^{and anotl'r:fl' at paJa 14 observed as follows:-}

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'Though^{the aforesaidjudgmentspertain to} criminal^{prosecutionsunder theDrugs} and Cosmetics^{Act'Preventionof} Food Adulteration^{Act andInsecticidesAct' yet' they} lay down^{that a valuabie right is granted to a} o"."on^{who is sought to be penalizedunderthese}

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t 2020 scc online SC 638

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¶108

Dr.CSL, J CrL.4.Nol.l87l^{&1E86 of2009}

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Acts to have a^{sample tested by the Government} Analyst that is^{found against such person, to be} tested by a^{superior'orappellateauthority,} namely, the Central^{DrugsLaboratory' These} judgments lay down that if owing to^{delay which} is predominantiy^{attributable to the State or any} of its entities, owing to^{which an article which} deteriorates with time^{is tested as not containing} the requisite standard,^{any prosecution or penalty} inflictable by virtue^{of such sample being tested,} cannot then be sustained.^{We have seen that on} the facts of this case, the^{sample drawn and} analyzed by the Government Analyst was delayed for a considerable period resulting in the sample being drawn towards the end of its shelf 1ife. Even insofar as the samples sent to the Central Drugs Laboratory, there was a considerable delay which resulted in the sample being sent and tested g months beyond the shelf life of the product in this case. It is thus clear that the valuable right granted by Section 25 of the Drugs and Cosmetics Act kicks in on the facts of this case, rvhich would necessarily render any penally based upon the said analysis of the sample as void.,,

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In a recent judgment of this Court in Criminal Appeal No.1868 of 2OOg, dated 06.01.2022, between Food rnspector, Medak Distrrct, reptd., bg the P,,.blic prosecutor Vs. V.Prabhakar, while dealing with identical set of faqts

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,un."ot, u, n, r?l'ff !ob!,

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and discussing at length with regard to the legal position, at paras l3 to 1B it is observed as follows:-

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"13. Section l1 of the Act prescribes the procedure to be followed by the Food Inspector. As per the said provision, when the Food Inspector takes the sample of food for analysis, he shaii give notice in writing then and there to the person from whom he has taken the sample revealing his intention to have the said sample analyzed. Thereupon, the Food Inspector shall by the immediate succeeding working day, send the sample of the article seized to the public Analyst lor anaiysis.

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Section 13 of the Act indicates the duty of the Public Analyst. As per the said Section, the Public Analyst shall deliver the report to the Local (Health) Authority of the result of the analysis of the article of food submitted^{to him for analysis.}

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Rule 7 of the Prevention^{of Food Adulteration} Rules, 1955 (for^brevity "the^{Rules"hereinafter)} lays down the^{duties of the Public Analyston} receipt of the^{packagecontaining the sample of} food for analysis^{from the Food Inspector'Rule} 7(3) of the Rules^{mandates that the Public Anaiyst} shall within a^{period of 40 days from the date of} receipt of^{the sample for analysis send his report} narrating^{the resuit of the said analysisin Form -} III to the Local^{(Health) Authority'} . '---4

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\ -=.-=-

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Crl.l-.'os. l8 7 t &ttE6 o12009

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Reverting back to the Act, as per Section 13, on receipt of the report of the result of analysis, the Local (Health) Authority shall, after institution of prosecution against the persons from whom the sample of the articie of food was taken and the person, if any, whose name and other particulars have been disclosed under Section 14_A forward a copy of the report of the result of the analysis to those persons informing them that if they desire, they may make application to the Court within a period of 10 days from the date of receipt of the copy of the report to get the sampre of the articre .of fooa kept by Local (Health) Authority, u.,rlyr.a by the Central Food Laboratory. 17. Rule 9&) of the prevention of Food Adulteradon Rules, 1955 is framed in aid of Section 13(2) of the Act. 18. Thus, in the light of the above provisions, it has to be seen wheth, the Accused was accorded his justifiabr. oroortt t"'* to get the sample anaryzedthrough ,n. Food Laboratory. As eartier discus..o, ,n"ll:tral gh the Analyst submitted his report on 1z.ro.2c i02' the Prosecution for the reasons best known, not file the complaint tilt 04.08.2003. or,.. lTo .1:.:.:,.0,".^..i:T-,ff ;T:il"::: rssued on 11.09.2003.: the contents evident as per is detav of ;;'; ", "*.o-ratli_,"T"_'" and Ex'P-24' Thus' there I months in according

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D..CSL. J CrLl.Nol"^{1E71&1E66ol 2009}

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opportunity^{to the Accusedfor gettingthe sample} analyzed through^{the CentralFood Laboratory' As} rightiy projected^{by learned counsel forthe} respondent/Accused,^{the condition of the sweets'} which were^{seized might have becomeso worse} that they could^{not be subjectedfor analysis'even} if they were^{sent. One could take notice through} common^{sense, that any edible object' that too'} the things like^{sweets,would' get damaged'} becomes^{inedibleand unfit forchemical or} scientific^{examination by passage of considerable} time. Therefore,^{it can unhesitatinglybe held that} the Accused^{had lost his valuable opportunityof} getting the^{sample anaJyzed' through Central Food} Laboratory."

¶125

In^{the comPlaint itself'it rsstated that there is} a mention^{over the productsthat they should be used ubest} before^{six months from thedate of manufacture"'} 28.^{Part-VIIof the Rules deals with packing and labelling} of foods.^{Rule 32 of the Rules iays down the contentswhich} every pre-packaged^{food shouldcarry as label'} oo Explanation^{VIII to Rule 32 of the Rules says what} .,best before" means^{and it readsas r-rnder:} ,,best before' rneans^{the date which signifies the} end of^{the period under anY stated storage}

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DT.CSL. J CtLA.Nos.IETl^{&1E66of 2009}

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conditions during which^{the productshal1 remain} fully marketable and shail retain any^specilic qualities for which tacit or express claims^have been made and beyond that date the food may still be perfectly satisfactory.

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Explanation VIIIA of Rule 32 of the Rules^{says what}

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"date of manufacture" means and it reads as under:

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"date of manufacture' means the date on which the food becomes the product as described.

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Explanation VIIIB of Rule 32 of the Rules says what

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"date of packaging" means and it reads as under:

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"date of packaging" means the date on which the food is placed in the immediate container in which it will be ultimately sold.

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Explanation VIIIC of Rule 32 of the Rules says what

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"use - by date" or,,recommended last consumption date, or "expiry date,, means and it reads as under:

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"use - by date,, or ,,recommended last consumption date" or ,,expiry date,, means the date which signifies the end of the estimated period under any stated storage conditions, after which product probably will not have the quality attributes normally expected by the consumers and the food sha.ll not be marketable.

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D1CSL, J C1LA-Nos^{lE71&lEE6oI 2009}

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Shelf^{life which is synonFnouslyreferred as "best} before^{date"is the life time during whicha productremains} usable,fitforconsumptionorsaleable.Thus,thereisevery necessity^{for getting the sample anaiysedthrough the} Central^{Food Laboratory at any cost before "best before} date"

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Now, a^{questionmay arise what happens ifthe} product is^{analysed after the best beforedate' By the} definition^{of "best before' itself it is clear that the product} would^{be containingits original contentswhen it is put to} use^{before "best before date'' Therefore' alter expiry of the} said^{period, itcan be presumed that itwould lose its} valuable^{contents or the originalcontentsthat may lead to} a different^{result when subjected to analysis'Admittedly'} for^{mentioning"best before date' on a product' there} requires^{scientific analysis arrd only aJter such arralysis'} u6"51 before^{date" would be prescribed'Thus' itis} incumbent^{on the part of the complainant to aJford the} accused^{thevaluableright ofgetting thesarnple} re-analysed^{by the Central Food Laboratorywithin "best} before^{date" ' lf it is not done' it cal unhesitatingiy be sai'd}

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22 D..CSL, J CrLA.Nos lE71 & I 8E6 of 20a9

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that the valuable right of the accused is lost and that has prejudiced his cause.

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In the case on hand, "best before date,, for the product in Crl.A.No.lgg6 of 2009 (Thums Up) 1S 09.72.2OO4. Likewise,^,,best before date,, for the product in Crl.A.No.1871 of 2004 (Limca) is tO.12.2OO4. Admittedly, in both the cases, written consents to launch prosecution were obtained after the expiry of the said ,,best before date,,, 1.e., on 24.Ol.2OOS and complaint was filed much thereafter i.e., on 2I.O2.2OOS. Later, cognizance of the offences was taken by the Court concerned on 05.3.2005 and finally, notices under Section 13(2) of the Act were issued to the.accused on 09.3.2005. Thus, it can be hetd that the complainant has not given any va-lue to the provisions of the Act, more particularly the time lines prescribed by the Act and the Rules and thereby, the accused have lost their va.luable right of getting the samples re_anaiysed through Central Food Laboratory. Therefore, on this count alone, the case of the complainant fails. ?hus, this Court is of the view that there is no

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D..CSL, J CrLi.l'os.1871 &1886 of 2009

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requirement for moving further in these appeals and discussing other aspects.

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In the result, these Criminal Appeals are dismissed confirming the judgments rendered by the Court of Judicial Magistrate of First Class, Deverakonda, in C.C.Nos.89 and 90 of 2005, dated 10.4.2008.

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In number of cases, it is observed that the complaints iiied by the Food Inspectors are failing before^{the Courts} only due to lapses^{in fiiing the complaints withinthe} prescribed time. The^{Officers, i.e', the FoodInspectors'the} Public Analysts^{and others, at the helm of affairs'more} particularly the^{officers working under the authoritywhich} accords sanction^{for prosecutionare of high cadres' but} they are^{unable to follow the procedure prescribed by the} Act and^{the Rules' Therefore' for the sake of their} convenienceandtoenlighten,thetimelinesprescribedby the Act^{and the Rules are reiteratedas under:}

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(1) The^{FoodInspectoris bound to send the seized} sample^{to tle PublicAnalyst immed'iatelg or on ttrc} succeeding^{working day for analysis(section 11(3) of} the Act).

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DT CSL. J CrL.4- Nos. I E7 I & I E86 oI 2009

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(2)In case, the Public Analyst find.s the sample broken or unfit for analg sis, he has to intimate the same to the Local (Healtlt) Authority within seuen d"ays from the date of receipt of the sample (Rule 7 of tlte Rules).

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(3) In case, the public Analgst subjects the sample to analgsis, le is bound. to d.eliuer his report uithin 40 days from tLte date of receipt of the sample (Rule 7 of the Rules).

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(4) 'I'he Locat (Hearth) Authoity has to obtqin sanction from the concerned. immed.iatelg if he intend.s to launch prosecution against tlte accased..

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(5) The officer who accord.s sanction should not cause ang delay in according sanction.

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(6) On obtaining sanctton, prosecution has b be launched./ complaint has to be fi.Ied., immediatelg.

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(7) The Court concerned, before whom the complaint is lodged, tf satisfi.ed., should. take cognizance of the offence immed.iatelg and not later than three uorking dags preferably.

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' ::,^:;::::X,,ro{"f'"uuno,,^the Locat (Heatth) the report of Anatsst to

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the accused ;:;;:1:'of Act duta ;r;;r;::",'red under section lse) of the tihat the accused. can make an

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," o. r* r, o o, n?{. fi! *!,

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applbation to the Cour to the centra;;:::"::":'n"o to send the sampte ten dass ,,";;";":"::::: .ror anatssis within report. -L 'vcetPt of th" .opg of th"

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(9) In "o"", the accus Prefers b get th

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anargsed. through

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(He atth) no;;""X,::, ";ed ":X.;: i"::

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concemed the part of sample within fiue-'d.ags from the date of receipt of such requisition (Section j3(2A) of the Act).

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(10) The Director of the Central Food Laboratory should send. certifi.cate specifuing the result of the

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analg sis wtthin one mon thfrom the date of receipt of

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the part of sample (sectio n 13(28) of the Act).

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(11) In all the cases, tlte complainarut is required. to see that the accused. is afforded the opportunitg of getting the sample re-analgsed. through the Central Food Laboratory before tlte shelf lik of the sample expires i.e., before^,,best before date,, mentioned. ouer the said product.

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3B Registry is directed to mark a copy of this judgment to the Director, Health, Medical and Family Welfare Department, State of Telangana. The Director in turn to

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DLCSI' '^J OLA.nos^{187 I & lEE6 ol2009}

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circulate^{the same to the Food lnspectorsand Public}

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Analysts^{working in the stateof Telangana'}

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