ORDER [ENTITY], J.
1. Petitioner/accused persons have filed this petition under [SECTION], [ACT] for quashing the proceedings pending against them before the learned CJM, Indore, vide RCC No. 6247/95 (State of M.P. v. Kishore Modi and three others) for the offence punishable under [SECTION]) of the [ACT] (for brevity 'the Act').
2. Gravamen of the case is that the respondents State of M.P., through Food Inspector has filed a criminal complaint on 9-11-1995 against the petitioner. Their case is that on 5-1-1995 Food Inspector inspected the premises of Modi Agencies and took sample of "Dollops Ice Cream". After performing the required sampling formalities, he sent one sample to the State Food Laboratory, Bhopal, whilst the remaining two parts of the sample were kept with the Local Health Authority, Indore. According, to the Laboratory report, the sample was not befitting with the prescribed standard. Therefore, same was found adulterated. Thus, the petitioners are liable for prosecution and conviction for the offence as mentioned above.
3. A solitary but substantial point has been raised by the learned Counsel for petitioners that the sample was lifted on 5-4-1994 whereas Public Analyst Report was received on 23-5-1994 (Annexure B) but the complaint was filed on 9-11-1995 after 19 months of purchasing sample by the Food Inspector. The petitioner Nos. 1 and 4 appeared in Court but they did not file any application under [SECTION] of the Act whereas petitioner No. 3 marked his presence on 29-6-1999 and moved an application under [SECTION] of the Act for sending the sample which was kept with the Local Health Authority, to Central Food Laboratory for further analysis. This application was allowed by the learned Trial Court vide order dated 1-6-2002 (Annexure D) but the sample was not produced by the respondent and they have filed an application (Annexure A). According to the fact mentioned in the application, the sample was not available and the same became unfit for further examination by Central Food Laboratory within 10 months from lifting the same from the petitioner. Therefore, the Local Health Authority has already destroyed the same and now not available for further analysis by the Central Food Laboratory.
4. The learned Counsel has emphasised on the application, reply (Annexure E) filed by the respondent contained the fact in para two that milk or milk products, ice cream etc., are fit for analysis upto 10 months from the date of lifting/purchase by the Food Inspector even after use of preservative. Further in Para 3, it is mentioned that both the bottles of sample were destroyed because of transfer of place of office on 12-12-1998 and submitted that by their own showing the sample was unfit for examination by Central Food Laboratory after 10 months of its purchase by the respondent whereas the complaint was filed after 19 months and for this delay petitioners can not be blamed. The applicant petitioner No. 3 filed application under [SECTION] of the Act on 29-6-1999. But the sample could not be sent even if it would have been available or if would have been sent the same could not be found fit for its analysis by Central Food Laboratory because complaint was filed after 19 months and sample would have been putrefied/decomposed for analysis by Central Food Laboratory. Reliance is placed on Supreme Court judgments passed in [PRECEDENT]. [PRECEDENT].
5. The learned Dy. A.G. Shri [ENTITY] appearing for the respondent has opposed the prayer of the petitioners for quashing the proceedings at the threshold. According to him, the petitioners were knowing this fact that the sample was not available. Therefore, filed an application under [SECTION] of the Act.
6. Having heard the learned Counsel for parties and having regard to the fact and legal position involved in the present case, this Court is of the opinion that allowing the proceeding/prosecution of the petitioners before the Trial Court would be nothing but abuse of process of Court of law and the same would cause immense loss to the public exchequer and valuable time of the Court which are already heavily burdened with the cases. In the present case, there is no dispute on the fact that the Food Inspector/respondent took sample on 5-4-1994 and the complaint was filed on 9-11-1995 as late as 19 months and for this delay, the prosecution cannot thrust blame on the petitioner. This delay is required to be explained by the prosecution but even if they have genuine and reasonable explanation, the same will not help to them as it is the settled legal position that milk or milk products like ice cream etc., gets deterioration within 10 months from the date of its lifting meaning thereby the sample may be fit for sending for further examination by the Central Food Laboratory within 10 months from the date of its purchase by the Food Inspector. In the present case, complaint itself was filed after a lapse of 19 months. Therefore, even if the sample would have been available the same could not be in a fit condition for further examination by Central Food Laboratory and accused has a right to apply under [SECTION] of the Act after institution of prosecution by the respondents and because of delay in institution of complaint, valuable right of the petitioners has been infringed. Thus, there seems no justification to allow the continuation of the trial against them. The Supreme Court in both the above mentioned cases have considered this aspect and in the case of [PRECEDENT] (supra) recorded its concurrence with the exercise of power under [SECTION] by the Punjab & Haryana High Court, quashing the proceedings pending against accused persons before the Trial Court because the prosecution was filed after the lapse of long time and accused deprived of valuable right to get sample re-analised from Central Insecticide Laboratory which has prejudiced the case of the accused. The same is the factual and legal situation available in the present case. Therefore, in the opinion of this Court, the proceedings pending before the learned CJM, Indore in [CASE NUMBER] is liable to be quashed.
6. In the result, the petition is allowed and the proceedings pending before the learned CJM, Indore in [CASE NUMBER] is quashed.
7. As a result, [CASE NUMBER] has for stay has become infructuous and the same also stands disposed of.