M/s. Milk Specialties Ltd. vs State of Rajasthan

S.P. Pathak, J.—The petitioner by filing, this petition u/s 482 Cr.P.C. Has prayed to quash the complaint filed by the respondent and all subsequent proceedings taken in pursuance of the complaint filed by the Food Inspector before the Chief Judicial Magistrate, Alwar under the provisions of Prevention of Food Adulteration Act in Cr. Case No. 105/2000 (State v. Rajendra Kumar & Ors.) be quashed.

For the disposal of the present petition, the necessary facts are that Food Inspector, Alwar inspected the premises of M/s. Prakash Dairy on 31.10.1995 and took samples of Agmark Ghee from a tin. Three samples were taken, one of the sample was sent to the Public Analyst, Alwar for analysis and report thereof is dated 02.11.1995. Finding that the sample was adulterated then ultimately a complaint was filed on 05.11.2000 before the learned Chief Judicial Magistrate, Alwar, who took cognizance in the matter against the accused petitioner and others on 05.04.2000 u/s 7/16 of the Prevention of Food Adulteration Act. Hence this petition has been filed to quash the proceedings pending before the Chief Judicial Magistrate, Alwar against the accused petitioner and others.

It has been contended by the learned counsel that in the instant case as per the provisions of Section 13(2) of the Act it would appear that there is a valuable right for seeking the second sample-for analysis available to the accused after filing of the complaint and in the instant case as the sample was taken of Ghee on 31.10.1995 and complaint in this case was filed on 05.04.2000, therefore, after 5 years when complaint was filed then no right in fact was available and the valuable right had already been taken away of the petitioner, therefore, the proceedings are liable to be quashed and set aside. The learned counsel in support of his submissions has placed reliance on the following decisions:-

(1) Nebh Raj v. The State (Delhi Administration) & Anr. (1980) (11) FAC 191

(2) Municipal Corporation of Delhi v. Ghlsa Ram 1975 (1) FAC 186

(3) M.A. Azeez v. State represented by Health Inspector, Hyderabad 1991(2) FAC 56

(4) M/s Mpton India Ltd, v. State of Punjab 2003 (3) CCC 377 (PAH) : 2003 FAC 510

(5) State of Raj. v. Ashok Oil Industries and Ors. 2009 (2) CCC 332 (Raj) : 2008 (2) FAC 177

(6) Yogesh Babubhai Trivedi and Ors. v. K.V. Dabhi Food Inspector and Ors. 2006 (2) FAC 23

(7) State of Raj. v. Ravi Kumar 2002 (2) FAC 76

On the other hand, the learned Public Prosecutor contends that after filing complaint no objection was raised by the petitioner and no application was moved to send the sample for re-examination, therefore, the petition is liable to be dismissed.

I have considered the above submissions made before me.

It is not in dispute before me that in the instant case, the sample of Ghee was taken as early as on 31.10.1995 and thereafter Public Analyst''s report was received on 02.11.1995 and after 5 years on 05.11.2000 the complaint was filed. In view of above facts it also becomes clear that u/s 13(2) of the Act there is valuable right available to the petitioner to get the sample analysed and for that a detailed procedure has been prescribed therein.

In the instant case, since samples were taken of the Ghee, which is a milk product then after 5 years when the complaint was filed then there was no purpose to ask the court to send the second sample for analysis as by that time it was too late in the day because it might have been not possible from that sample to give correct report in relation to that sample because of lapse of time. The cases cited by the learned counsel clearly indicates that there is a valuable right available to the accused in the cases arising out of food adulteration matters that accused has a right to get the second sample analysed.

In the case of Nebh Raj v. State (Delhi Admn.) (supra) the Hon''ble Apex Court considered delay of 2 years fatal in filing the complaint for the purpose of launching prosecution.

In Municipal Corporation of Delhi v. Gheesa Ram (supra) it has been held that as the valuable right of the accused was infringed which was available to him u/s 13(2) of the Prevention of Food Adulteration Act, therefore, the proceeding in the case were liable to be quashed and set aside.

In the case of M.A. Azeez v. State represented by Health Inspector, Hyderabad (supra) delay of 66 months in filing complaint is considered to be fatal.

In the case of State of Rajasthan v. Ashok Oil Industries and Ors. (supra), this Court has observed that u/s 13(2) of the PFA Act the accused has a right available to him for getting sample reanalysed by the Central Food Laboratory and the deprivation of that right caused serious prejudice to the accused respondents. Therefore, the appeal filed by the State was dismissed.

In the case of State of Rajasthan v. Ravi Kumar (supra) this Court has observed that the accused has a valuable right for getting the sample analysed by the Central Food Laboratory and he has been deprived of this valuable right by the prosecution then in the event of non-compliance of mandatory provisions of Section 13(2) of the Act and Rule 9A framed thereunder entitles the accused for acquittal.

Again in the case of Yogesh Babubhai Trivedi (supra) it has been held that since the complainant filed the complaint after a lapse of 4 years and that aspect of the matter was not... liable to be overlooked lightly.

A perusal of above authorities clearly indicates that the position of law is almost settled on the point that inordinate delay in launching the prosecution causes serious prejudice to the accused preventing him from his right available u/s 13(2) of the PFA Act.

In the instant case also the facts are not in dispute that the sample of Ghee was taken as early as in the year 1995 and report of the Public Analyst was received in the year 1995 itself and complaint was filed on 05.04.2000, therefore, right of the petitioner has been prejudiced and the proceedings pending before the trial court are required to be quashed and set aside as no useful purpose will be served keeping the proceedings alive before the trial court.

In the result, the petition is allowed. The proceedings pending before the Chief Judicial Magistrate in Cr. Case No. 105/2000 (State v. Rajendra Kumar& Ors.) are hereby quashed.