IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH, HYDERABAD THURSDAY, THE FIFTEENTH DAY OF TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.P.No.2214 OF 2009 Between: Kalahasti Venkateswara Rao ….Petitioner A n d The State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.P.No.2214 OF 2009 ORDER: This petition is filed under Section 482 Cr.P.C., for quashing further proceedings against the petitioner/accused in C.C.No.132 of 2009, on the file of the Judicial Magistrate of the First Class, Nuzvid, Krishna District. 2. Heard both sides. Perused the record. 3. The Food Inspector, Krishna District, Machilipatnam, filed a complaint against the petitioner alleging offence under Section 7(i), 2 (ia) (m) read with Section 16(1)(a)(i) of the Prevention of Food and Adulteration Act, 1954 (for short ‘the Act’) and the same was taken cognizance in C.C.No.132 of 2009. According to the complainant, on 23.05.2008 at about 11.30 A.M., the Food Inspector inspected the premises of the accused i.e., M/s Venkateswara Acqua Minerals situate at Nuzvid and at the time of inspection, the petitioner, who was the proprietor of M/s Venkateswara Acqua Minerals, was present transacting the business and that suspecting the stock of mineral water bottles to be adulterated, the Food Inspector duly following the procedure prescribed has taken the samples of water and sent the same to the public analyst for opinion and the public analyst after analysis sent a report dated 03.07.2008 stating that the sample does not conform to the standards of aerobic microbial count, coliform bacterial and yeast and moulds count and is, therefore, adulterated. After obtaining written consent of the State Food Authority, the complaint was filed on 25.02.2009. Thereafter, notice under Section 13(2) of the Act was issued to the petitioner along with a copy of the report. 4. The main contention of the learned counsel for the petitioner is that on account of the enormous delay in filing the complaint after lifting the sample, the valuable right for re-analysis of the same has been lost to the petitioner. 5. In a decision in NEBH RAJ V. THE STATE (DELHI ADMINISTRATION) AND ANOTHER[1], the Apex Court held thus: “We desire to add that there was no justification whatever for launching the prosecution more than two years after the sample was taken and after obtaining the report of the Public Analyst. To launch a prosecution at such a belated stage may result in causing harassment to the accused in some cases and may also result in genuine offenders escaping punishment. We are unable to see why simple cases under the Prevention of Food Adulteration Act should be launched so late. Tardiness in these matters is inexcusable.” In the above decision, the Apex Court referred to Chemical Analysis of Foods by David Pearson – 7th Edition, Page 494 wherein it is stated as under: "Fats undergo changes during storage which result in the production of an unpleasant taste and odour, which is commonly referred to as rancidity. Rancidity is brought about by the action of air or by micro-organisms. Oxidative rancidity is accelerated by exposure to heat and light, by moisture and by the presence of traces of certain metals (e.g.copper, nickel, iron)……….With most oils and fats the free acidity increases during storage……….”. 6. In NARESH KUMAR KEDIA V. DIRECTOR, INSTITUTE OF PREVENTIVE MEDICINE AND OTHERS[2], the proceedings are quashed when the prosecution was launched with a delay of nearly one year eight months on the ground of valuable right of the accused has been denied because of the delay. In KONDA SURYANARAYANA AND OTHERS VS. STATE OF A.P[3], the proceedings were quashed observing that no useful purpose would be served by sending the sample for analysis after lapse of two years nine months. In VINOD NAMVIAR, REGIONAL SALES MANAGER (FOODS) & OTHERS VS. STATE OF A.P., REP. BY FOOD INSPECTOR[4], the proceedings were quashed when there was a delay of 27 months in launching the complaint. In ‘Nebhraj’s case (1 supra)’, it was held that ‘there is no justification for launching the prosecution with a delay of two years after a sample was taken and after obtaining the report of the public analyst.’ 7. In the present case, the sample was lifted on 23.05.2008 and the complaint was filed nine months later. There was a delay of more than eight months, even after receipt of the report of the analyst, in filing the complaint and the same has not been explained at all. Having regard to the fact that the subject item is water, the delay of nine months would certainly result in degeneration of the contents of the food item rendering the same unfit for analysis. Further, as per Section 2 (v) of the Act, water is excluded from the definition of expression “food” and, therefore, the prosecution is unsustainable. Section 2 (v) defines the expression ‘food’ as any article used as food or drink for human consumption other than drugs and water. Thus, as per the definition of the expression “food” contained in the Act, water is specifically excluded therefrom. The prosecution launched by the Food Inspector in respect of the said item viz., water is, therefore, unsustainable, as the subject food item is excluded from the purview of the Act in view of the definition of the expression ‘food’ in Section 2(v) of the Act. 8. In the circumstances, it is held that further proceedings against the petitioners/accused in C.C.No.132 of 2009, on the file of the Additional Judicial Magistrate of the First Class, Nuzvid, Krishna District, are liable to be quashed and they are accordingly quashed. 9. In the result, the criminal petition is allowed. ____________________ G.V.SEETHAPATHY, J 15th December, 2011 Lrkm [1] 1980(II) FAC 191 [2] 2006 (1) FAC 104 [3] 2006 (1) FAC 157 [4] 2006 (1) FAC 235