1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.09.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition(MD) No.2437 of 2011 and M.P.(MD) Nos.1 and 3 of 2011 1.S.Venkatesan Proprietor M/s.M.S.Alagu Stores Theatre Road, Ettayapuram, Tuticorin District. 2.C.Kannan, S/O.Chinnasamy M/s.Sri Hari Marketer, Door No.1A/3, Kanni Vinayagar Kovil Street, Kovilpatti,Tuticorin District. 3.M/s.Sri Hari Marketer Distributor-representative C.Kannan, Door No.1A/3, Kanni Vinayagar Kovil Street, Kovilpatti, Tuticorin District. 4.D.Sarath Chandra Basa S/O.Dharmaraj Basa, M/s.Saravana Stores Food Private Limited, No.90, Walajah Road, Salamangalam Village, Padappai, Kancheepuram District. 5.M/s.Saravana Stores Food Private Limited, Production Company represented by D.Sarath Chandra Basa S/O.Dharmaraj Basa, No.90, Walajah Road, Salamangalam Village, Padappai, Kancheepuram District. .. Petitioners/Accused 1 to 5 Vs. The Food Inspector, Ettayapuram Selection Grade Town Panchayat Government Primary Health Centre, Keela Eral, Ettayapuram, Tuticorin District. .. Respondent /Complainant Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records from the Judicial Magistrate No.II, Kovilpatti in C.C.No.66 of 2010 and quash the same as it has no prima facie case against the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 2 For petitioners : Mr.Ananth C. Rajesh For Respondent : Mr.A.P.Balasubramani G.A., (Crl. Side) O R D E R The petitioners approach this Court with a prayer to call for the records from the Judicial Magistrate No.II, Kovilpatti in C.C.No.66 of 2010 and quash the same as it has no prima facie case against the petitioners. 2.The learned counsel appearing for the petitioners would submit that on 16.04.2009, the respondent inspected the 1st petitioner shop and obtained the samples of ice creams which was manufactured by the 4th petitioner and sold by the 1st petitioner to the general public and the same was sent to the Public Analyst, Food Analysis Laboratory on 17.04.2009 and food samples were analysed from 23.04.2009 to 19.05.2009 and the report has been received by the 1st respondent on 30.05.2009. He would further submit that even though the 4th petitioner has received the report on 30.05.2009, intimation under Section 13(2) has been issued only on 19.04.2010 and hence, his choice for sending the sample to the Public Analyst has been deprived, since the notice has been issued after the expiry date and hence, he prayed for quashing the complaint in C.C.No.66 of 2010 on the file of the learned Judicial Magistrate No.II, Kovilpatti. To substantiate his case, he lied upon the following decisions: 1. (2010) 2 Supreme Court Cases (Cri) 270 (Girishbhai Dahyabhai Shah Vs. C.C.Jani and another) 2.(2009) 1 MLJ (Crl) 843 (Bhushan Prasad, Manager-Quality and Regulatory Operations of the general Mills India Private Ltd., Mumbai and Another Vs. K.Ravichander) 3.(2008) 3 MLJ (Crl) 779 (Baskar Vembu, Indian Inhabitant, Nominee of Cadbury India Ltd., Mylapore, Chennai - 600 004 and Another Vs. State of Tamil Nadu at the instance of K.Jebaraja Shobana Kumar, Food Inspector, Food & Drugs, Administration, Tamil Nadu) 3.Heard the learned Government Advocate (Criminal side) and perused the materials available on records. 4.Admittedly, the sample taken by the complainant is on 16.04.2009 and the same was sent to Public Analyst on 17.04.2009 and the analyst report has been received on 30.05.2009. But the complaint has been filed on 05.04.2010 and thereafter only, 13(2) notice has been issued on 19.04.2010 stating that “You are hereby directed to intimate the above Court within 10 days from the date of receipt of this Memo and the report above referred about your intention whether you would like to have another portion of the https://hcservices.ecourts.gov.in/hcservices/ 3 sample taken from you/your agent to be analysed and certified by the Central Food Laboratory”. But, here, in the case on hand, the notice has been issued after the date of expiry of the product i.e. Ice cream which is perishable in nature and hence, the petitioner's choice to send another sample to the Public Analyst is deprived. 5.In such circumstances, it is appropriate to consider the decisions relied upon by the learned counsel appearing for the petitioner. In (2010) 2 Supreme Court Cases (Cri) 270 (Girishbhai Dahyabhai Shah Vs. C.C.Jani and another), wherein, the Apex Court has held as follows: "7.Sections 13(1) and (2) of the Prevention of Food Adulteration Act, 1954, read as follows: 13.Report of Public Analyst. - (1) The Public Analyst shall deliver, in such form as may be prescribed, a report to the Local (health) Authority of the result of the analysis of any article of food submitted to him for analysis. (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory." 8.It will be apparent from the above, that only on receipt of the report of the Public Analyst under sub- section (1) to the effect that the article of food is adulterated, can a prosecution be launched and a copy of the report could be supplied to the accused, Sub-section (2) also indicates that on receipt of the report the accused could, if he so desired, make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. 9.In other words, in the instant case, the appellant was prevented from applying for analysis of the second sample before 17.07.1989, by which time the second https://hcservices.ecourts.gov.in/hcservices/ 4 sample of curd had deteriorated and was not capable of being analysed as was found in Ghisa Ram referred to above." In (2009) 1 MLJ (Crl) 843 (Bhushan Prasad, Manager-Quality and Regulatory Operations of the general Mills India Private Ltd., Mumbai and Another Vs. K.Ravichander), this Court has held as follows: "The reading of Section 13(2) of the Prevention of Food Adulteration Act 1954 makes it clear that on receipt of the Analyst report, the Local Health Authority shall after the institution of prosecution forward the copy of the analyst report to the accused concerned and to inform such persons that they may make an application before the Court within 10 days from the date of receipt of the copy of the report to get the other portion of the sample of article to be analysed by Central Food Laboratory. But in the instant case, it is seen that the date of manufacture of the sample is 15.10.2003, the date of expiry of the article is dated 15.02.2004, the Food Inspector obtained sanction for prosecution on 12.11.2004 and the complaint was filed only on 10.12.2004 and as such the complaint itself was filed after the expiry of the product, viz., sample as early as on 15.02.2004 and as such the sample has become unfit for further analysis by the Central Food Laboratory and thereby the petitioners have lost their valuable right to get the sample examined by the Central Food Laboratory which resulted in grave prejudice to the accused." In (2008) 3 MLJ (Crl) 779 (Baskar Vembu, Indian Inhabitant, Nominee of Cadbury India Ltd., Mylapore, Chennai - 600 004 and Another Vs. State of Tamil Nadu at the instance of K.Jebaraja Shobana Kumar, Food Inspector, Food & Drugs, Administration, Tamil Nadu), this Court has held as follows: "In the present case, even if the stand taken by the respondent is accepted that the samples were drawn in the prescribed manner, there is a gross failure on their part in launching the prosecution instantly as enunciated in the Act. Notice under Section 13(2) of Act came to be served on the petitioners only on 04.10.2005 and by that time, food sample had become so decomposed and totally unfit for analysis. Strikingly, there is no explanation forthcoming on the part of the prosecution for such serious lapses. The valuable right of the accused/petitioners is taken away. In such circumstances, the Court has no other option except to quash the entire proceedings pending against the petitioners before the trial Court." https://hcservices.ecourts.gov.in/hcservices/ 5 6.It is appropriate to consider the orders of this Court dated 10.08.2010, 11.08.2010 and 31.08.2010 made in Crl.O.P.(MD) Nos.7045, 6891, 2473 of 2010 and 12334 of 2007, wherein, this Court has held as follows: “Because of the delay in issuing 13(2) notice, the petitioner was prevented from sending the sample for second analysis within time prescribed. In such circumstances, I am of the opinion that all the citations are squarely applicable to the facts of the present case.” 7.As per the above said citations, because of the delay in issuing 13(2)notice, the petitioners were prevented from sending the sample for second analysis within the time prescribed. In such circumstances, I am of the opinion that all the citations are squarely applicable to the facts of the present case and hence, it is a fit case to quash the proceedings in C.C.No.66 of 2010 on the file of the Judicial Magistrate No.II, Kovilpatti. 8.In fine, the criminal original petition is allowed and the proceedings in C.C.No.66 of 2010 pending on the file of the learned Judicial Magistrate No.II, Kovilpatti, are quashed. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(Records) /True Copy/ Sub Assistant Registrar To 1.The Food Inspector, Ettayapuram Selection Grade Town Panchayat Government Primary Health Centre, Keela Eral, Ettayapuram, Tuticorin District. 2.The Judicial Magistrate No.II, Kovilpatti. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Order in Crl.O.P.(MD)No.2437 of 2011 13.09.2011 arul SMA/21.9.2011/4C/5P https://hcservices.ecourts.gov.in/hcservices/