M/s Parkin Laboratories And Ors vs State Of Rajasthan

In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

Learned counsel for the petitioner submits that the controversy in question is squarely covered by the judgment rendered by this Hon'ble Court in the

matter of Mahesh Yadav & Anr. Vs. State of Rajasthan reported in 2018(3) CJ (Cri.) (Raj.) 1443. The said judgment reads as under :-

By way of the instant misc. petition under Section 482 Cr.P.C., the petitioners have approached this Court seeking quashing of entire proceedings of

Criminal Regular Case No.217/2011 pending in the Court of learned ACJM, Shahpura, District Bhilwara for the offence under Section 7/16 of the

Prevention of Food Adulteration Act, 1954.

Facts relevant and essential for disposal of the instant misc. petition are noted herein below for ready reference:

The Food Inspector, Shahpura collected samples of mixed milk from the Chilling plant being operated by a company named Kisaan Dairy, Begu Road,

Shahpura, District Bhilwara of which, thepetitioners are the Manager and Directors. The first sample of milk collected by the Food Inspector was

forwarded to the Public Analyst, Ajmer who analysed the sample and issued a report dated 17.05.2011 opining that the same was adulterated. The

complaint came to be lodged in the Court of the ACJM, Shahpura on 30.07.2011. Immediately upon appearing in the trial court, the accused petitioner

Mahesh Yadav submitted an application dated25.08.2011 for re-analysis of the second milk sample through the Central Food Laboratory by taking

recourse of the procedure provided under Section 13(2) of the PFA Act. The trial court accepted the application by order dated 11.10.2011 and

directed the CMHO to present the second milk sample to the court so that appropriate steps for transmission thereof to the CFL for re-analysis could

be undertaken. However, despite a period of nearly six years having lapsed from such direction, the second sample appears not to have seen light of

the day on which, the petitioners herein have approached this Court by way of the instant misc. petition seeking quashment of the complaint and their

prosecution on the ground that the unreasonable and unjustified delay in forwarding the second milk sample to the CFL, for challenging the Public

Analyst's Report has irrevocably prejudiced their statutory right under Section 13(2) of the PFA Act and hence, the proceedings of the complaint

should be quashed.

The matter was taken up by this Court on 27.11.2017 and an explanation was sought from the trial court as to why the second milk sample had not

been forwarded to the Central Food Laboratory. A report dated 12.12.2017 has been received from the court of the ACJM, Shahpura, District

Bhilwara indicating that the counsel representing the accused Mahesh Yadav moved an application dated 25.08.2011 under Section 13(2) of the PFA

Act. The matter was posted to 11.10.2011 for arguments on the application. The trial court directed on the very same day that the second sample be

summoned and be forwarded to the CFL for re-analysis. However, no requisition was ever issued to the CMHO Office for presenting the second

sample so that further steps to send the same for re- analysis to the CFL could be undertaken as per law. The trial court has of course noted in its

explanation that the accused other than Mahesh Yadav never moved an application under Section 13(2) of the PFA Act. In this regard, it may be

mentioned here that the Kisaan Dairy, its Manager Mahesh Yadav and the remaining accused stated to be its Directors are being prosecuted in the

complaint. The Manager Mahesh Yadav(petitioner No.1) moved the application under Section 13(2) of the PFA Act and thus, it has to be presumed

that the application was moved on behalf of the company and its Directors as well. The facts noted above indeed reveal a totally lackadaisical

approach by the court as well as the counsel representing the accused. Needless to say that the accused would always try to look out for every

avenue of defence by taking advantage of the procedural loopholes and thus, their conduct in not pursuing the matter after the order dated 11.10.2011

can be excused. However, the lackadaisical approach of the Presiding Officers, who were posted in the court concerned during this period, and the

conduct of the court staff, is not condonable. In all probability, even the connivance of the court's staff to give undue advantage to the accused cannot

be ruled out.

Be that as it may. The fact remains that owing to the lack of promptitude on part of the court, a period of more than 6 years has lapsed since the milk

sample was collected. As held by Hon'ble Supreme Court in the case of Girish Bhai Dhayabhai Shah vs.C.C. Jani & Anr, reported in (2009)15 SCC

64, delay in forwarding the second food sample for analysis to the CFL prejudices the statutory right available to the accused under Section 13(2) of

the PFA Act. As a consequence, allowing proceedings of the impugned complaint to be continued is not at all warranted.

Accordingly, the instant misc. petition deserves to be and is hereby allowed. All further proceedings of the Criminal Regular Case No.217/2011

pending in the Court of learned ACJM, Shahpura, District Bhilwara are hereby quashed.

However, before parting with this order, this Court feels essential to issue a direction to the registry to circulate a copy of this judgment to all District

Courts in State of Rajasthan so as to ensure immediate inspection of the files of complaints under the Prevention of Food Adulteration Act and to

ascertain that the applications field under Section 13(2) of the PFA Act do not go unattended and are taken to their logical conclusion without any

delay. The courts concerned seized of the matters under the PFA Act are directed that the application filed under Section 13(2) of the PFA Act shall

be marked with a red flag and will be continuously monitored till the same reaches to its logical conclusion.

Learned counsel for the petitioner has further relied upon the judgment rendered by Hon'ble Apex Court in the matter of Laborate Pharmaceuticals

India Limited & Ors. Vs. State of Tamil Nadu; reported in (2018) 15 Supreme Court Cases 93, relevant paragraphs reads as under :-

A reading of the provisions of Sections 23(4) and 25 of the Act would indicate that in the present case the sample having been taken from the

premises of the retailer had to be divided into four portions; one portion is required to be given to the retailer; one portion is required to be sent to the

Government Analyst and one to the Court and the last one to the manufacturer whose name, particulars, etc. is disclosed Under Section 18A of the

Act. In the present case, admittedly, one part of the sample that was required to be sent to the Appellant (manufacturer) Under Section 23(4)(iii) of

the Act was not sent. Instead, what was sent on 22nd March, 2012 was only the report of the Government Analyst. When the part of the sample was

not sent to the manufacturer, the manufacturer could not have got the same analyzed even if he wanted to do so and, therefore, it was not in a position

to contest the findings of the Government Analyst. In the present case, the sample was sent to the Appellant-manufacturer on 10th August, 2012 and

on 13th September, 2012 the Appellant had indicated its desire to have another part of the sample sent to the Central Laboratory for re-analysis. This

was refused on the ground that the aforesaid request was made much after the stipulated period of 28 days provided for in Section 25(3) of the Act.

The cognizance of the offence(s) alleged in the present case was taken on 4th March, 2015 though it appears that the complaint itself was filed on

28th November, 2012. According to the Appellant the cough syrup had lost shelf life in the month of November, 2012 itself. Even otherwise, it is

reasonably certain that on the date when cognizance was taken, the shelf life of the drug in question had expired. The Magistrate, therefore, could not

have sent the sample for reanalysis by the Central Laboratory.

All the aforesaid facts would go to show that the valuable right of the Appellant to have the sample analyzed 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 23(4)(iii) of the Act; and secondly, on the part of the Court in taking cognizance of the complaint on 4th March, 2015 though the same was

filed on 28th November, 2012. The delay on both counts is not attributable to the Appellants and, therefore, the consequences thereof cannot work

adversely to the interest of the Appellants. As the valuable right of the accused for re-analysis vested under the Act appears to have been violated

and having regard to the possible shelf life of the drag we are of the view that as on date the prosecution, if allowed to continue, would be a lame

prosecution.

Consequently and for the reasons alluded we are of the view that the present would be a fit case to interdict the criminal trial against the accused

Appellants. We order accordingly. Therefore, C.C. No. 263 of 2015 pending on the file of the XV Metropolitan Magistrate, George Town, Chennai is

hereby quashed. The appeal is allowed and the order of the High Court is set aside.

Learned counsel for the petitioner submits that in the present case, the complaint under the Drugs & Cosmetic Act was filed before the court of

learned Chief Judicial Magistrate, Banswara on 10.07.2003 alleging that on 30.07.1997, the concerned Drug Inspector of the relevant time inspected

the firm and he obtained the sample of the Drug Oxytetracycline Capsule IP 250 mg having batch No.CP14 with manufacturing date 5/97 and Expiry

Date 10/99.

Learned counsel for the petitioner further submits that once the complaint itself has been filed after a gross delay and incapacitated the authorities to

process the reports in question due to delay then the same shall be covered in light of the aforesaid judgments.

Learned GA cum AAG assisted by the learned Public Prosecutor candidly admit that such judgments are holding the field and thus, after the breach

of the stipulated period, the complaint cannot be proceeded ahead with.

This Court, after hearing learned counsel for the parties, is of the view that learned Public Prosecutor through the concerned authority ought to file an

explanation, as to delay caused in the matter.

List on 09.03.2021.

In the meanwhile and until further orders, the impugned order dated 13.05/03.07.2019 & 19.01.2021 passed by learned courts below as well as entire

proceedings of criminal complaint case no.248/2010 pending before the learned Chief Judicial Magistrate, Banswara shall remain stayed.

Learned Public Prosecutor shall file such explanation before this Court on the next date.