1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.09.2011 CORAM THE HONOURABLE Ms.JUSTICE R.MALA Crl.O.P.(MD)NO.11616 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 A.David Brainard Rhenius ... Petitioner Versus State through, The Food Inspector, Dindigul Municipality, Dindigul. ... Respondent PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records in c.C.No.238 of 2011 now pending on the file of the learned Judicial Magistrate No.II, Dindigul and quash the same. For Petitioner : Mr.A.D.Jagadish Chandira For Respondent : Mr.A.P.Balasubramani Government Advocate (Crl. Side) O R D E R This petition is filed to call for the records in C.C.No.238 of 2011 now pending on the file of the learned Judicial Magistrate No.II, Dindigul and quash the same. 2. The learned counsel appearing for the petitioner would submit that on 16.04.2010 the respondent inspected the shop of the 1st accused and obtained the samples of Grape Squash and sent the same to the Public Analyst, Food Analysis Laboratory on 16.04.2010 and the analysis report has been received by the respondent on 12.05.2010. He would further submit that even though the respondent has received the report on 12.05.2010, the Food Inspector filed the complaint on 10.06.2011 and thereafter, the intimation under Section 13(2) has been issued only on 21.06.2011 and the same was received by the petitioner on 23.06.2011 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.238 of 2011 on the file of the learned Judicial Magistrate No.II, Dindigul. To substantiate his case, he lied upon the following decisions: https://hcservices.ecourts.gov.in/hcservices/ 2 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 viz., Grape Squash has been manufactured on 24.03.2010 and in that it was stated that it has to be used before 12 months from the date of packing. But, the said sample has been taken by the complainant is on 16.04.2010 and the same was sent to Public Analyst on the same day and the analyst report has been received on 12.05.2010. But the complaint has been filed on 10.06.2011 and thereafter only, 13(2) notice has been issued on 21.06.2011. But, in the mean time, the life time of the product has been expired and hence, the petitioner's choice to send another portion of the product 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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." 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 petitioner was 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 C.C.No.238 of 2011 on the file of the learned Judicial Magistrate No.II, Dindigul. 8. In fine, the criminal original petition is allowed and the proceedings in C.C.No.238 of 2011 pending on the file of the learned Judicial Magistrate No.II, Dindigul, against the petitioner is hereby quashed. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar To 1.The Judicial Magistrate No.II, Dindigul https://hcservices.ecourts.gov.in/hcservices/ 5 2.The Food Inspector, Dindigul Municipality, Dindigul. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.G.R.Edmund, Advocate, Sr.No.31298 vsm ssk/27.09.2011 /5c -5p/- Crl.O.P.(MD)NO.11616 of 2011 12.09.2011 https://hcservices.ecourts.gov.in/hcservices/