Mohammed Zahir vs Food Inspector, Food Cell and Another

L. Mohapatra, J.—This revision is directed against the order dated 29.1.2003 passed by the learned Chief Judicial Magistrate, Cuttack in 2(C)CC No. 341 of 1995 rejecting the petition filed by the petitioner to drop the proceeding.

From the record, it appears that the complainant-Food Inspector inspected the business premises of the petitioner on 2.6.1995 where the petitioner was transacting the sale of Besan. The complainant after disclosing his identity purchased samples of Besan (750 grams), which he divided into three equal parts and kept in three clean bottles. After the three bottles were sealed, one sample was sent to the Public Analyst, Orissa, Bhubaneswar and the rest two bottles were deposited with the local Health Authority. On 10.7.1995 the Public Analyst, Orissa submitted a report saying that the Besan is adulterated and it contains wheat, starches and brans. After obtaining the Public Analyst report the complainant submitted the prosecution report in the Court alleging commission of offence u/s 16(1)(1A) read with Section 7 of the Prevention of Food Adulteration Act and cognizance was taken. The petitioner after receipt of summons appeared in the Court and filed an application u/s 13(2)of the Act praying for sending the second sample to the Central Food Laboratory for further analysis. It further appears that there was some delay in sending the second sample to the Central Food Laboratory by the local Health Authority. Subsequently the sample sent to the Central Food Laboratory was found to be unfit for analysis and the said sample was returned with the instruction to send the third sample. The third sample could not be sent as there was dispute as to who will bear the cost. Ultimately, the Court passed an order dated 5.2.2002 directing the local Health Authority to bear the cost, but the prosecution never deposited the cost as a result of which the third sample could not be sent for analysis.

On the basis of such facts, a petition was filed before the learned Chief Judicial Magistrate to drop the proceeding on the ground that the second sample having been sent after long delay which was ultimately found to be unfit for analysis and the third sample having not been sent at all, a valuable right given to the petitioner u/s 13(2) has been denied and, therefore, the petitioner being seriously prejudiced, the proceeding should be dropped. The learned Chief Judicial Magistrate referring to the several decisions cited by both the parties rejected the petition on the ground as the case could proceed on the basis of the first report of the Public Analyst and there was no reason for dropping the proceeding.

The learned counsel appearing for the petitioner challenged the said order of the learned Chief Judicial Magistrate on the ground that the valuable right conferred by the Statute u/s 13(2) of the Act having been denied to the petitioner, serious prejudice has been caused to him and there being no possibility of conviction, continuance of the preceding will amount to abuse of process of Court. The learned counsel referred to some decisions in support of his contention. The learned Addl. Government Advocate, on the other hand submitted that since the first sample sent to the Public Analysis was found adulterated and on the basis of the same prosecution report was filed, there is no reason to drop the proceeding and at this stage the Court is not to find out as to whether the case will end in acquittal or conviction. According to the learned Addl.Govt. Advocate, since prosecution report was submitted on the basis of the report of the Public Analyst, the proceeding should be allowed to continue.

In order to appreciate the contention of the learned counsel for the petitioner it is necessary to refer to Section 13(2) of the Prevention of Food Adulteration Act.

"13. Report of public analyst -

(1) XX XX XX (2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the Article of Food is adulterated, the local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed u/s 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may 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 analyzed by the Central Food Laboratory."

The undisputed facts are that the second sample sent to the Central Food Laboratory on the basis of a petition filed by the petitioner was not found to be fit for analysis, the reason being delay in sending the sample. There is also no dispute that the third sample as required by the Central Food Laboratory could not be sent in spite of order passed by the Court as the prosecution failed to deposit the cost. Under these circumstances, there cannot be any doubt in the mind that the right given to the accused under the above provision (Section 13(2) of the Act) has been denied to the accused. Therefore, the question that arises for consideration is whether the proceeding should be allowed to continue or to be dropped. It was contended by the learned counsel for the State that there is no reason to drop the proceeding and the same can continue on the basis of the report submitted by the Public Analyst. In this connection, reference may be made to a decision of this Court in the case of Nestle India Ltd. v. A.K. Chand, Food Inspector, Kalahandi and Anr. reported in 1996(1) F.A.C. 304. Dealing with Section 13(2) of the Act this Court held that the said section confers a valuable right on the accused to prove his innocence. u/s 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable in the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. Referring to a decision of the Apex Court in the case of Municipal Corporation of Delhi v. Ghisa Ram reported in 1975 (1) F.A.C. 186 this Court further observed that delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis in spite of the delay, the accused is certainly not prejudiced notwithstanding such delay. Further the Court observed that Section 13(2) aims to provide that safety valve to him. This Court on the above ground and other grounds has also held that continuance of the proceeding would be abuse of process of Court and quashed the proceeding. A similar view has also been taken by Punjab and Haryana High Court in the case of Narinder Singh and Anr. v. State of Punjab reported in 1985(1) F.A.C. 120. The Court in the aforesaid case held that delay in sending the sample causes decomposition and the same becomes unfit for analysis by the Central Food Laboratory. Therefore, delay in violation of Sub-section (2-A) of Section 13 causes serious prejudice to the rights of the accused and also seriously prejudices the accused and even if the accused is tried on the complaint of the Food Inspector, no conviction could be recorded against him on the basis of the report of the Public Analyst though the said report continues to be a piece of evidence in the facts and circumstances of the case. The Court further observed that continuance of the trial of the accused on the complaint of the Food Inspector would certainly amount to abuse of the process of the Court. A similar view has also been taken by the Madhya Pradesh High Court in the case of Rajendra S. Pathak v. Nagar Palika Ratlam and Anr. reported in 1986(1) F.A.C. 140. On similar grounds the Court observed that if the trial is allowed to proceed, it would only be an exercise in futility and accordingly quashed the proceeding.

In view of the law laid down by the Apex Court referred to in the case of Nestle India Ltd v. A.K. Chand (supra) as well as this Court and other High Courts, there cannot be any doubt in the mind that even if the trial is allowed to continue on the basis of the report of the Public Analyst which is a piece of evidence in the facts complained of, the entire exercise will be in futility and no useful purpose will be served.

I, therefore, quash the proceeding and the revision is accordingly allowed.