Dinesh Arya vs State

The instant misc. petition has been preferred by the petitioner Dinesh Arya for assailing the proceedings of the Criminal Complaint No.151/2010

pending in the court of Chief Judicial Magistrate, Nagaur for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954.

Brief facts relevant and essential for the disposal of the appeal are noted herein below:-

The Food Inspector, Nagaur Shri Anil Kumar Sharma collected samples of sweetened carbonated water (Pepsi, Mirinda etc.) from the vendor Apna

Agency, Nagaur on 26.05.2005. One bottle of the sweetened carbonated water was forwarded to the Public Analyst from where a report dated

22.06.2005 was received indicating that the quantity of sugar (10 Grams/100 grams) shown on the label of the bottle was incorrect because only 9.10

grams/100 grams of sugar was found in the sample. Astonishingly, the Food Inspector filed the complaint of this mis-branded food article after a huge

delay of five years i.e. on 05.02.2010 in the court of the Chief Judicial Magistrate, Nagaur who took cognizance against the Vendor, Dealer and the

Manufacturer (the petitioner herein) by order dated 02.04.2010 for the offence under Section 7/16 of the P.F.A. Act. On 18.11.2010, the accused

petitioner Dinesh Arya filed an application under Section 13(2) of the P.F.A. Act in the court of Chief Judicial Magistrate, Nagaur for having the

second sample examined through the Central Forensic Laboratory (‘CFL’). However, unfortunately, neither the court below nor the Public

Prosecutor, took appropriate steps on the said application which remains undecided till date. This Court, summoned a report from the CJM Nagaur,

who has forwarded a letter dated 06.02.2020 indicating that the application was submitted by Dinesh Arya under Section 13(2) of P.F.A. Act on

18.11.2010 but the accused himself appeared in the Court on 25.10.2016. During the intervening period, neither the accused nor his counsel made any

submission regarding the said application and thus, the same remained undecided and that the application would be proceeded with on 28.02.2020.

Dr. Bhansali, learned counsel representing the petitioner relied upon the order dated 25.10.2016 passed by the Jaipur Bench of this Court in S.B.

Criminal Misc. Petition No.2756/2014 : Varun Beverages Limited vs State of Rajasthan whereby the proceedings of the complaint filed against Varun

Beverages Limited in an identical situation was quashed. He submits that by now the sample of the sweetened carbonated water can be presumed to

have been rendered unfit for analysis. Otherwise also, the shelf life of the sample has expired long back and therefore, no useful purpose would be

served by sending the second sample to the Public Analyst at this belated stage. He urges that the fundamental/legal right of the accused to lead

evidence for controverting the report of the public analyst has been infringed by the delay in lodging of the report and as the application under Section

13(2) of the P.F.A. Act has not been decided till now and thus, the proceedings of the criminal compliant should be quashed.

Per contra, learned Public Prosecutor opposed the submissions advanced by the petitioner’s counsel. However, he too does not dispute the fact

that the complaint was filed after a huge delay of more than five years and that the application for sending the second sample to the CFL filed by the

accused under Section 13(2) of the P.F.A. Act on 18.11.2010 has not been decided till now.

I have heard and considered the submissions advanced at bar and have gone through the material available on record.

It cannot be denied that the complaint for the alleged adulteration in the sample of sweetened carbonated water in itself was filed after a delay of

five years from the date of drawing of the sample and thus, it can safely be presumed that the shelf life of the sample must have expired by then. The

explanation of the learned Chief Judicial Magistrate that the accused did not take any steps to press the application filed under Section 13/2 of the

P.F.A. Act is absolutely flimsy because this Court in the case of Vishram Kumawat vs State of Rajasthan : S.B. Criminal Misc. Petition

No.3301/2015 decided on 09.12.2015 has given exhaustive directions to all the lower courts in the State of Rajasthan to ensure that such applications

are not left unattended/undecided. The directions so given by this Court in the case of Vishram Kumawat (supra) are reproduced hereinbelow for the

sake of ready reference:-

“13. While parting, this Court feels it essential to issue direction to all the trial Courts dealing with prosecutions under the Prevention of Food

Adulteration Act, 1954 that whenever an application is moved by the accused under Section 13(2) of the PFA Act seeking reanalysis of the second

food sample through the CFL, the trial Court is not required to seek a reply from the A.P.P. conducting the trial and should straight off and without

any delay, direct that the second food sample be presented before it and to forward the same to CFL for reanalysis, lest, the delay in analysis of the

second sample frustrates the entire proceedings. The Registry is directed to place a copy of this judment before Hon’ble the Chief Justice for

being circulated to the trial courts.â€​

The proceedings of the identical complaint preferred against the company Varun Beverages Limited have been quashed by the Jaipur Bench of this

Court vide order dated 25.10.2016 passed in S.B. Criminal Misc. Petition No.2756/2014. Thus, I am of the firm opinion that allowing proceedings of

the criminal complaint to be continued against the petitioner and other accused persons in this matter would be nothing short of a sheer abuse of

process of court. Otherwise also, as per the report of the Public Analyst, there was slight deficiency in the sugar content of the sample of the

sweetened carbonated water and nothing obnoxious and harmful or unfit for human consumption was found mixed therein. Thus, the instant misc.

petition deserves to be and is hereby allowed. The entire proceedings of the Criminal Complaint No. 151/2010 pending against the petitioner and other

accused persons in the court of learned Chief Judicial Magistrate, Nagaur for the offence under Section 7/16 of the Prevention of Food Adulteration

Act are hereby quashed. Stay application is also disposed of.