A.N. Gupta, J.@mdashThe Petitioner is manufacturer of Ice Cream selling under the brand name of ''Go Go Ice Cream''. The manufacturing activities are being carried out within the municipal limits of Lucknow. On 28.11.81 in the morning two different Food Inspectors collected samples of Ice Cream from the manufacturing premises of the Petitioner. Food Inspector Sri K.M. Lal Srivastava had collected the sample of Vanila Ice Cream'' at 11.10 a.m. and Food Inspector D.P.S. Chauhan had collected the sample of Pista Ice Cream'' at 10.30 a.m. in accordance with the prescribed procedure. Crl. Misc. Case No. 1553 of 1985 relates to the sample of "Vanila Ice Cream'' and Crl. Misc. Cast: No. 1554 of 1985 relates to the sample of ''Plata Ice Cream''
2. Both these samples were sent to the Public Analyst who too vide his report dated 15.12.81 reported that the sample of Vanila Ice Cream contained 6.27% Milk Fat as against the prescribed standard of not less than 10% and as such, the sample was found adulterated inasmuch as milk fat was deficit by 3.73%. However, the total solids were found 41.83% as against the prescribed standard of not less than 36% and Proteins were found 3.97% against prescribed standard of not less than 3.5%. In the case of Pista Ice Cream, the Public Analyst. found that it contained 6.03% Milk Fat as against prescribed standard of 8%. total solids were found to be 40.71% and Protein were found 3.8%, both of which were more than prescribed standard. This sample too was found adulterated inasmuch as it contained less Milk Fat.
3. In both the cases, Nagar Swasthya Adhikari (Municipal Officer of Health) filed Criminal complaint against the Petitioner directly under his signatures. In Crl. Misc. Case No. 1553 of 1985 relating to sample of Vanila Ice Cream, the complaint was signed by Nagar Swasthya Adhikari on 15.5.82 and the complaint was filed in the court on 6.7.82. In the other case, Nagar Swasthya Adhikari signed the complaint on 9.9.83 and the Criminal complaint was actually filed in the court on 13.9.83. Thus, in the case of Vanila Ice Cream, prosecution was launched after 7 months 8 days of taking of the sample and in the other case, the prosecution was launched 21 1/2 months after the sample was taken. In the case of Vanila Ice Cream, the Petitioner appeared in the court after launching of prosecution on 11.3.85 whereas in the other case he appeared on 21.2.85. In both the cases, the Petitioner applied on 13.3.85 that the samples be sent to Central Laboratory, Calcutta for chemical examination alleging that no notice u/s 13(2) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act''), was served upon the Petitioner. In other words, he meant that the copy of report of the Public Analyst was not sent to him. In the affidavit filed along with petitions u/s 482, Code of Criminal Procedure, it has been averred that till date, the report of Public Analyst had not been sent to the Petitioner whereas in the counter-affidavit. it has been averred that report of Public Analyst was sent to the Petitioner, the evidence regarding which shall be adduced at the time of the trial. On 13.3.85, these applications were allowed and on 9.4.85 an order was passed summoning the sample from Nagar Swasthya Adhikari. Thereafter, the Petitioner sought adjournment and disputed that the samples were properly preserved. He sought and obtained time from the trial court for staying further proceedings in the case as the Petitioner wanted to bring stay order from this Court and time was granted to the Petitioner for the purpose. Ultimately, on 19.6.85, the Petitioner preferred these two petitions u/s 482, Code of Criminal Procedure and further proceedings in the two criminal cases pending before the trial court were stayed on the same day. The result is that so far the samples have not been sent to the Central Laboratory for analysis.
4. It was contended by learned Counsel for the Petitioner that the Petitioner was deprived of his right of getting the sample analysed by Central Laboratory under the provisions of Section 13(2) of the Act because of delay in launching the prosecution. It may be repeated here that in one case the prosecution was launched about 7 months 8 days after taking of sample and in the other case prosecution was launched 21 1/2 months after the sample was taken. In the Indian Journal of Dairy Science (Volume 29) dated 29th February. 1976, an article has appeared which has been authored by Sri B.K. Ramaiah and Sri K.M. Narayanan of National Dairy Research Institute, Karnal in which at the end at page No. 137 the following passage occurs:
The present study confirms addition of 0.4% formalin as required in Rule 20 of the Prevention of Food Adulteration Rules, 1955 will preserve the icecream samples which are to be stored for chemical analysis for a period of 2 months. Further storage will decrease its total solids, fat and sucrose contents appreciably. It is. therefore, suggested that all ice-cream samples which are preserved with 0.4% formalin should be analysed within a period of 2 months to check their compositional standards.
5. Rule 20 framed under the Act provides that preservative in the form of formalin which means liquid containing about 40% of formaldehyde in aqueous solution in the proportion of 10.1 ml. (two drops) for 25 ml. or 25 grams, is required to be added to the sample of Ice Cream. Thus, even with the addition of formalin, according to the said Article, sample of Ice Cream deteriorates within a period of 2 months and further storage decreases its total solids, fats and sucrose contents. In the present case. Fat contents have been found to be less than the standard. It is a matter of common knowledge that Ice Creams stored at home get deteriorated within a few days and become unfit for consumption in about a week''s time. Since the prosecution was launched after a considerable delay as mentioned above, the Petitioner was deprived of his right of getting the sample sent to the Central Laboratory because by the time the prosecution was launched, the samples taken from the Petitioner got deteriorated. It is a settled law that in case a person is deprived of his right of getting the sample sent for analysis to Central Food Laboratory, such a person cannot be convicted for adulteration of food article. The Supreme Court in the case of Deo Raj v. State, (Delhi Administration) AIR 1989 FAJ 105, has taken the same view. The same view has also been taken by this Court in the case of Lalloo v. State 1989 ACR 712.
6. Learned Counsel for the applicant urged several other points but they need not be considered because the petition succeeds on the above point alone.
7. Learned A. G. A. argued that if the delay was caused by the accused in making an application u/s 13(2) of the Act, to the trial court for sending the samples to the Central Food Laboratory, he cannot take an advantage of the same. There is no quarrel to this principle of law. The criminal proceedings launched against the Petitioner are not being quashed on this ground but are being quashed on the ground of delay in launching the prosecution and which deprives the Petitioner of his valuable right of getting the sample sent to the Central Laboratory. It may be mentioned here that the right of the accused to get the sample sent to the Central Laboratory u/s 13(2) of the Act and Rule 9A of the Rules framed thereunder, arises only after launching of the prosecution because it has been provided therein that after the prosecution is launched, report of the Public Analyst should be sent to the accused immediately (as it stood at the relevant time) and thereafter, the accused could exercise his right of getting sample sent to Central Laboratory. Since the prosecution was launched late and by then the sample had deteriorated, it follows that the Petitioner was deprived of his valuable right of getting the sample sent for analysis to the Central Laboratory.
8. Learned A.G A. placed his reliance on a decision of this Court given in the case of Ganga Bishun v. State of U.P. 1982 (1) Prevention of Food Adulteration Cases 195, in which it has been held that if report of the Public Analyst is served on the accused after two years and the accused does not make any application for sending sample to the Director, Central Food Laboratory no prejudice is caused to the accused and in that case conviction recorded by the trial court was maintained. That was a case of taking the sample of Kirana Article and it does not appear from the said decision whether it got deteriorated in the span of 2 years or not. In our case, it cannot be doubted that the sample of Ice Cream gets deteriorated in two months'' time and in any case it could not last till the prosecution was launched against the Petitioner.
9. In view of the above, both the petitions u/s 482 Code of Criminal Procedure succeed. They are allowed. The prosecution launched against the Petitioners under the provisions of Prevention of Food Adulteration Act and the proceedings emanating therefrom, are hereby quashed.
