HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 2977 of 2009 And CRIMINAL PETITION No. 3001 of 2009 COMMON ORDER: The petitioner in both the criminal petitions is one and the same. She is seeking quashing of the proceedings in CC Nos. 395 of 2008 and 396 of 2008 on the file of Special Mobile Judicial Magistrate of the First Class, Ongole, under Section 482 Cr.P.C. Commons questions are raised in both the petitions. The petitions arise out of two complaints filed by the 1st respondent/Food Inspector in the lower court for punishing A1 to A4 for offences punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 ( in short, the Act) for contravention of Sections 7(i), (2(ia)(m) & (k) of the Act. In both the cases, food samples obtained by the Food Inspector for analysis were Sil Mix-Trix Fruit Jam from two shops belonging to A1 in those two respective cases. A-1 in those two cases furnished A-2 as the person from whom A1 purchased those mixed fruit jam bottles for the purpose of sale in their respective shops. After analysis of those two samples, the Public Analyst found that there was excess Sulphur dioxide (Class II Preservative) and is therefore, adulterated. 2. It is contended by the petitioner’s counsel that the 1st respondent/complainant did not follow Rule 9(B) of the Prevention of Food Adulteration Rules, 1955 (in short, the Rules) in as much as the second sample was not sent by the Food Inspector to the Magistrate immediately after obtaining the sample and sending one sample to the Public Analyst for analysis and that there is non- compliance of Section 11(4) of the Act by the Food Inspector in as much as he did not serve copy of the Public Analyst report on the petitioner/A2 in both the cases. As per Rule 9(B) of the Rules, Local (health) authority shall within a period of ten days after the institution of prosecution, forward a copy of the report of the result of analysis in Form –III delivered to him under Sub Rule 3 of Rule 7 of the Act, by registered post or by hand to the person from whom the sample of the article was taken by the Food Inspector and simultaneously also to the person if any, whose name, address and other particulars have been disclosed under Section 14(A) of the Act. Under Section 11(4) of the Act, the Food Inspector is expected to produce before the Magistrate an article of Food seized as soon as possible and in any case not later than seven days after receipt of report of the Public Analyst subject to the proviso therein. 3. When the petitioner/A2 pleads non-compliance of Rule 9(B) of the Rules and Section 11(4) of the Act, it is for the petitioner to establish the same by unimpeachable document in this court in this petition. The compliance of Rule 9(B) of the Rules arises only after institution of the complaint by the Food Inspector and not prior to it. The petitioner could not produce any material to show that there is non-compliance of the above said two provisions by the Food Inspector before and after institution of the complaints in the lower court. This court is of the opinion that it is a question of fact whether the food Inspector complied with Rule 9(B) of the Rules and Section 11(4) of the Act before and after institution of the respective complaints in the lower court. It is for the lower court to decide the same having regard to the record position before it during trial of the cases before that court. So this court cannot take upon itself to decide those two questions in these two criminal petitions filed under Section 482 Cr.P.C. Therefore, this court proposes to keep those two questions open for decision by the trial court. 4. It is contended by the petitioner’s counsel that the complaints were instituted by the Food Inspector after shelf life of the product. According to the petitioner and as per the label declaration, the product is best before six months of its package. Therefore, it is contended that the prosecutions instituted long subsequent to shelf life of the sample products, would defeat valuable defence of the accused under Section 13(2) of the Act by way of sending second sample to the Central Food Laboratory for obtaining second analysis report. As pointed earlier, this is not a case where there was adulteration in the products itself. The adulteration is stated to be in the preservative and not in the products. Therefore, the question of the petitioner’s right being defeated under Section 13(2) of the Act does not arise in these cases. Adulteration of the preservative used is entirely different from adulteration of the product itself. Since there is no adulteration of the product in this case, the question of valuable defence of the accused being defeated will not arise at all. 5. With the above observations, both the criminal petitions are dismissed. ____________________________ SAMUDRALA GOVINDARAJULU, J 08-10-2010 Mjl/*