IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4359 of 2003 Between : Mohd.Yaseen Khan ..... PETITIONER AND The State of A.P. and another ..... RESPONDENTS HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4359 OF 2003 ORDER : This criminal petition is filed under Section 482 of the Code of Criminal Procedure for quashing the proceedings in C.C.No.322 of 2002 of the Court of Judicial Magistrate of the First Class, Jedcherla, Mahabubnagar District, relating to the offence under Sections 7 (i) and 2 (ia) (m) read with Section 16 (1) (a) (i) of Prevention of Food Adulteration Act, 1954, (in short, ‘the Act’). The petitioner is running ‘Hotel Munnavar’ at Kavarampet Village, Jedcherla Mandal, Mahabubnagar District, on National High Way No.7. The Food Inspector made inspection of the said hotel premises on 12.02.2001 and collected samples of ‘mixed milk’ from the hotel after following the procedure prescribed by the Act and Rules thereunder. On 13.02.2001, the Food Inspector sent one of the samples to the Public Analyst for report after analysis. The Public Analyst sent the report opining that the sample does not conform to the standards prescribed for milk, as it is not having the required percentage of fat and also solid not fat (SNF). The said report was received on 24.03.2001 by the Food Inspector. Later, the Food Inspector addressed the Director, Food Health Authority, Hyderabad, for sanction for prosecution on 22.05.2001. The Director passed sanction order for prosecution and the Food Inspector received the same on 16.07.2002. The Food Inspector filed the complaint before the Magistrate on 11.09.2002 and it was taken on file by the Magistrate on 28.09.2002. Thereafter, on 18.10.2002 notice was given to the petitioner-accused under Section 13 (2) of the Act read with Rule 9 (b) of the rules. Relying upon earlier decisions of this Court, it is contended by the petitioner that there is inordinate delay of more than one year eight months in giving notice under Section 13 (2) of the Act and it would defeat the purpose for which notice under Section 13 (2) of the Act is intended. Notice under Section 13 (2) of the Act is given by the Food Inspector to the petitioner-accused enclosing a copy of the public analyst report for the purpose of giving an opportunity to the accused for sending the sample to Central Food Laboratory for second opinion regarding its composition. Due to delay of one year eight months in giving notice under Section 13 (2) of the Act, right of the accused to send the second sample to Central Food Laboratory for analysis for obtaining second opinion, is virtually defeated. Even though preservative is added to the sample of ‘mixed milk’ obtained by the Food Inspector, it is not going to keep the sample in the same form, in which it was collected from hotel of the accused, for a period of one year eight months. There is every possibility of putrefaction of milk due to passage of time resulting in lot of chemical and physical changes in contents of sample of milk. In M/s.Handi Instant Foods, Chennai v. State of A.P.[1] Division Bench of this Court after surveying the case law on the subject observed as follows : “ It is clear that Section 13 (2) of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of a copy of the report of the Public analyst to get the samples of food analyzed in the Central Food Laboratory and in case the sample is found by the Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. That would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case, even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay.” Other decisions in M/s.Ruchi Infracture Limited v. State of A.P.[2] , G.Mallesh v. State of A.P.[3] and R.Chandrakanth v. State of A.P.[4] are also to the same effect. Therefore, I find that inordinate delay in giving notice under Section 13 (2) of the Act to the petitioner-accused is fatal in this case. Finally, it is contended that the sample obtained by the Food Inspector is described as ‘mixed milk’ and that there are no standards prescribed for ‘mixed milk’ in the Act or the Rules framed there under. Standards given in the Act are for ‘milk’, ‘cow milk’, and ‘buffalo milk’, but there are no standards prescribed for ‘mixed milk’. In fact, the sample obtained in this case is mixed milk meant for preparation of ‘tea’. In that view of the matter, the Food Inspector should not have obtained sample of such mixed milk meant for preparation of ‘tea’. It is contended that panchanama prepared by the Food Inspector does not disclose that he made any stirring of contents of milk before obtaining the samples. No doubt, stirring of contents of milk is a prerequisite for obtaining the sample therefrom. At the same time, one cannot infer that there was no stirring of milk before the sample is taken simply on the ground that the said fact was not mentioned in panchanama. This is a matter for evidence to be spoken by the Food Inspector at the time of giving evidence before the Magistrate during trial. In view of above conclusions on the above points urged by the petitioner’s counsel, the prosecution does not stand scrutiny of law. In the result, the criminal petition is allowed quashing the proceedings in C.C.No.322 of 2002 on the file of the Judicial Magistrate of the First Class, Jedcherla. ________________________ SAMUDRALA GOVINDA RAJULU, J 23rd October, 2009 SUR Note : L.R. copy to be marked B/o. SUR [1] 2007 (1) ALT (Crl.) 211 (D.B.) (A.P.) [2] 2008 (1) ALT (Crl.) 123 (A.P.) [3] 2007 (2) ALT (Crl.) 274 (D.B.) (A.P.) [4] 2003 FAJ 54