HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 3020 of 2009 O R D E R: The Petitioners 1 and 2 /A4 and A3 along with two others are accused of offence punishable under Section 16(i-a)(i) of the Prevention of Food Adulteration Act 1954 (in short, the Act) for contravention of Sections 7(i) and Sec. 2(ia) of the Act and Rule 50 of the Prevention of Adulteration Rules 1955. 2. The complainant namely, Food Inspector, III Division Municipal Corporation, Guntur, on 11-02-2004 at 11.00 am. purchased 900 gms of Butter Scotch ice cream from A-1’s premises for the purpose of analysis and sent one part of the sample to the Public Analyst for analysis and report. The Public Analyst in the report dated 12-03-2004 after analysis, opined that the sample does not conform to the standards of milk fat and is therefore, adulterated. The report reads that fat was 8.49% as against requirement of minimum of 10%. On that basis, the public Analyst opined that the sample was adulterated. Thereupon, the complainant submitted a report to the Director, Institute of Preventive Medicine, P.H. Labs and Food (Health) Administration, Hyderabad, seeking written consent and the authority in turn, gave written consent for launching prosecution against A1 to A4 by letter dated 26-09-2006. It is stated to have been received by the complainant on 03-10-2006. The complaint was filed before the Magistrate on 19-04-2007. Ultimately, summonses were issued to the accused by the Magistrate after taking cognizance of the complaint for the above said offence on 19-05-2007. Originally, the case was pending as CC No.875 of 2007 on the file of V Additional Judicial Magistrate of the First Class, Guntur. It is stated that as on today the complaint is pending on the file of Special Judicial magistrate of the First Class for Prohibition and Excise Offences, Guntur, as CC No.631 of 2008. 3. Originally, the contention of the petitioners, who are manufactures of the product, was that the sample seized was frozen desert and it cannot be considered as milk and milk product falling under item No.A.11.2.08 of Appendix B of the Rules. According to the petitioners, frozen desert contains vegetable oils also apart from milk. The petitioners’ counsel at the time of arguments submits that he will not propose to press on that point of attack in this petition. 4. It is contended by the Senior Counsel for the petitioners that there is non- compliance of Rule 9(B) of the Rules and delay in service of public analyst report after filing of the complaint in a delayed fashion resulting in defeating his valuable defence of exercising right to send second sample to the Central Food Laboratory for analysis. He placed reliance on Municipal Corporation of Delhi Vs. Ghisa Ram [1] of the Supreme Court of India and contended that defeat by way of delay of right of the accused to send the second sample for second analysis by the Central Food Laboratory vitiates the entire prosecution case. It is contended that the delay was not for any reason attributable to any of the accused muchless the petitioners herein. Sample of the product was taken by the complainant on 11-02-2004. Ultimately, the complaint was filed before the Magistrate on 19-04- 2007 after more than three years. The product being ice cream containing milk products will not be in the same condition after three years and two months when compared to the product on the date of inspection or on the date of the first analysis of the product by the Public Analyst. Shelf life of the subject product expired long before date of filing of complaint in the lower court. Therefore, even if report of the public analyst is served on the accused after filing of complaint in the lower court in accordance with Section 11(4) of the Act in order to exercise the right under Section 13(2) of the Act, then it would be of no use for the accused because of long lapse of time. Shelf life of the product had expired. In this case, like in may similar cases. The delay is attributable to the complainant and also the State Food and Health Authority. There is absolutely no explanation on their part for their bureaucratic delays. Even if there is any explanation on their part, it is not going to cure the defect, which is incurable by way of loss of valuable defence of the accused to get second sample of the product tested by the Central Food Laboratory due to lapse of time. Therefore, this court is of the opinion that continuation of prosecution of the petitioners in the lower court is a clear abuse of process of law. 5. In the result, the criminal petition is allowed quashing the proceedings in CC No.631 of 2008 on the file of Special Judicial Magistrate of the First Class for Prohibition and Excise Offences, Guntur (Old CC No.875 of 2007 on the file of V Addl. Judicial Magistrate of the First Class, Guntur) in so far as the petitioners 1 and 2/A4 and A3 are concerned. ____________________________ SAMUDRALA GOVINDARAJULU, J 30-09-2010 Mjl/* [1] AIR 1967 SC 970