THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.P.No.7423 of 2008 ORDER This criminal petition is filed under Section 482 Cr.P.C. for quashing further proceedings in C.C.No.794 of 2008 on the file of the II Additional Judicial Magistrate of First Class, Nellore. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondent-State and perused the records. On a complaint filed by the Food Inspector, Nellore, the learned Magistrate has taken cognizance of the offence under Section 7 (i) 2 (ia) (m) punishable under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’) against the petitioner. According to the complainant on 23-3-2008, he visited M/s. R.V.S. Hyginic Water Company, a packaged drinking water unit situate at Nellore, and found the petitioner- accused processing the water sachets and suspecting the water to be contaminated, the Food Inspector has taken samples of the same, following the procedure prescribed, and on analysis, the water was found to be not conforming to the prescribed standards of aerobic microbial count coliform bacteria and moulds count and therefore, it was adulterated. Admittedly, the sample of the subject item viz., water was taken on 23.2.2008 and the same was subjected to analysis by the public analyst on 31-3-2008. The complaint was filed on 21-8-2008 and thereafter, a notice under Section 13 (2) was served on 24-09-2008. Thus, the complaint was filed after delay of about 5 months from the date of analysis and no reason or explanation is forthcoming for the said delay. Further, the notice under Section 13 (2) of the Act has not been issued within 10 days from the date of filing of the complaint, as required by the statute and thus, there has been violation of the statutory provision contained under Section 13 (2) of the Act. Having regard to the fact that the subject item is water whose aerobic Microbial Count, Coliform bacteria and moulds count is likely to be adulterated and thereby resulted in deterioration of the sample, the valuable right of the accused to seek re-analysis of the sample has been lost on account of inordinate and unexplained delay in filing the complaint and also serving the notice under Section 13 (2) of the Act. 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……….”. 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 ‘Neghraj’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.’ Learned counsel for the petitioner would contend that section 2 (m) (v) of the Act excludes water from the definition of expression “food” and therefore the prosecution is unsustainable. Section 2 (m) (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. In the circumstances, it is considered that it is a fit case to invoke the inherent powers of this Court under Section 482 Cr.P.C to quash further proceedings in C.C.No.794 of 2008. Accordingly, C.C.No.794 of 2008 on the file of the II Additional Judicial Magistrate of First Class, Nellore, is quashed. In the result, the Criminal Petition is allowed. ______________________ G.V.SEETHAPATHY,J rkk Dated: 17-11-2011 [1] 1980(II) FAC 191 [2] 2006 (1) FAC 104 [3] 2006 (1) FAC 157 [4] 2006 (1) FAC 235