HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL PETITION.No.6335 of 2008 ORDER: This Criminal Petition is filed under Section 482 Cr.P.C. to quash proceedings in C.C.No.40 of 2007 on the file of the Court of Judicial Magistrate of First Class at Prathipadu, East Godavari District. 2. The petitioners are the accused and respondent is the complainant in the calendar case. For the sake of convenience, I refer them hereinafter as arrayed in the calendar case. 3. In the calendar case, the accused have been charged for committing offence punishable under Section 7 (i) & 2 (ia) (m) of the Prevention of Food Adulteration Act, 1954 (for brevity ‘the Act’), on the ground that on 18-11-2005 at about 12.30 p.m., the complainant along with others went to the shop of 1st accused situated at Veeravaram village, Kirlampudi Mandal, East Godavari District, and after inspecting the shop, purchased three jars of Cadbury Bournvita Malt Based Food as samples on suspicion that the product was adulterated, and obtained cash receipt in the presence of mediators and sent one sample for analysis on 19-11-2005 to the Public Analyst, State Food Laboratory, Hyderabad, through Local (Health) Authority, Zone-II, Kakinada, all observing necessary formalities, and after analysis the public analyst sent his report dated 22-12-2005 opining “The sample is not confirming to the standards of Coliform count and therefore, there is adulteration.” Basing upon it, the complaint was filed which was taken cognizance of by the learned Magistrate observing necessary formalities against the accused on the ground that they were the vendor, supplier to the 1st accused, supplier to the 2nd accused, nominee and Branch Manager (of A-3) and manufacturer of the product. 4. The learned counsel for the accused mainly attacks the proceedings in C.C.No.40 of 2007 on the ground that the analyst report was sent on 19-11-2005 and the report was received on 22-12-2005, and on 24-12-2005, the Local (Health) Authority, Zone-II, Kakinada, received Form-III report bearing No.546/2005, dated 22-12-2005 along with a covering letter No.2477/SFL/2005, dated 22-12-2005 from the Public Analyst, State Food Laboratory, Hyderabd, and then the Local (Health) Authority forwarded the same to the complainant, and on 01-09-2006, necessary sanction was given to the complainant for prosecuting the accused and accordingly, a notice dated 10-03-2007 was served on the accused under Section 13 (2) of the Act, for the purpose of sending the second sample to the Central Food Laboratory for necessary analysis and report, about which, there is no dispute, but, admittedly, the expiry date of the product was in November 2006 i.e. after 12 months of the date of its packing and therefore, the accused lost the valuable right of taking necessary steps to send the second sample in time to the Central Food Laboratory for the purpose of necessary analysis and report and also for the purpose of establishing their innocence and hence, the impugned proceedings are to be quashed. In support of his contention, he has relied upon the following decisions. 1. Nebh Raj vs. State (Delhi Administration)[1], 2. State of Haryana Vs. Unique Farmaid Pvt. Ltd.[2], 3. Shri Rohit Mull and Cadbury India Ltd. Vs. The State of Goa[3], 4. Konda Suryanarayana and Others vs. State of A.P.[4], 5. Smt. I.Savitri (alilas Saraswathi) and others vs. State of A.P. and another[5], 6. M/s.Ruchi Infrastructure Ltd. Vs. Food Inspector, Division-II, Nalgonda[6] and 7. Medicamen Biotech Ltd., andanother vs. Rubina Bose, Drug Inspector[7]. 5. Per contra, it is the contention of learned counsel for the respondent that by virtue of Section 13 (2) of the Act, it was mandatory on the part of the accused to file an application for the purpose of sending the second sample to the Central Food Laboratory, Delhi, for analysis and report and till that time, the complainant or the Magistrate got no obligation to take necessary steps in that context and therefore, the claim is not tenable and hence, the petition may be dismissed. 6. Section 13 (2) of the Act mandates that necessary opportunity should have been given to the accused for the purpose of sending the second sample for necessary analysis in the Central Food Laboratory before ‘best before date’. As contended by the learned counsel for the petitioner, in I.Savitri’s case (5 supra), it is observed when similar question arose that there is abnormal delay in the service of a copy of the analyst report on the accused, and on the sample bottles, it is printed as “best before May 2000” and a copy of the analyst report ought to have been served on the accused immediately after the receipt of the analyst report on 24-12-1999 to enable the accused to file an application to send the other sample to the Central Food Laboratory and as the report was served only in the month of March 2000, by which time, the expiry period was already over, no purpose would have been served by sending the sample to the Central Food Laboratory and as the accused lost his valuable right to establish his innocence, hence, the Criminal Petition should be allowed. 7. Further, in Unique Farmaid Pvt Ltd. (2 supra), similar observations were made under similar circumstances, and it is further held that if the expiry date of sample is not relevant, there is no reason why in the form prescribed for the submission of the report by the insecticide analyst, the date of manufacture of the article and the expiry date are mentioned and further held Section 30 (1) of the Insecticide Act, 1968, only prescribes in effect that ignorance would be no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused got no remedy. 8. Further, in Rubina Bose (7 supra), it is observed taking into consideration relevant facts and circumstances of the case, that there is no explanation as to why the complaint itself had been filed about one month before the expiry of life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed and so on and the facts of the case suggest that the appellants were deprived of the valuable right to ascertain their innocence by way of taking necessary measures. The observations made hold good to the facts and circumstances of the present case. 9. Therefore, a copy of the public analyst report should have been served on the accused quite earlier to the best before date for the purpose of taking necessary steps for sending the 2nd sample to the Central Food Labouratory for analysis and report to prove their innocence of the allegations and the omission is fatal. 10. By virtue of Section 13 (2) of the Act itself, on application made by the accused, necessary steps are to be taken. This is only directory and it is subject to the mandatory provision of giving opportunity to the accused to send the second sample to the Central Food Laboratory for analysis to prove his innocence. 11. Therefore, in view of the various decisions rendered by the Apex Court, and, for the reasons discussed above, it is nothing but abuse of process of law to allow the proceedings in the calendar case to be continued, and hence the proceedings are to be quashed upholding the claim of the petitioners. 12. In the result, the Criminal Petition is allowed quashing the proceedings in C.C.No.40 of 2007 on the file of the Judicial First Class Maigstrate, Prathipadu, East Godavari District, taking recourse under Section 482 Cr.P.C. __________________________________ JUSTICE G. KRISHNA MOHAN REDDY Date: 25-03-2011 KVR [1] AIR 1981 S.C. 611 [2] 1999 (8) S.C.C. 190 [3] 2006 (108) Bombay Law Reporter 350 [4] 2006 (1) ALT (Crl.) 446 (A.P.) [5] 2006 (2) ALT (Crl.) 44 (A.P.) [6] 2007 (3) ALT (Crl.) 397 (A.P.) [7] 2008 (7) S.C.C. 196