1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.07.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.8761 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 M.Dharmar : Petitioner Vs. Food Inspector, Sriviliputhoor Municipality, Virudhunagar District. : Respondent PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records pertaining to the proceedings in C.C.No.77/2011 pending on the file of the Judicial Magistrate No.II, Srivilliputtur, Virudhunagr District as against the petitioner is concerned and quash the same as illegal and abuse process of law. For Petitioner : Mr.K.Jeganathan For Respondents : Mr.A.P.Balasubramani Govt. Advocate (Crl. Side). O R D E R This petition is filed to call for the records in C.C.No. 77/2011 on the file of the Judicial Magistrate No.II, Srivilliputtur, Virudhunagr District and quash the same. 2. The learned counsel for the petitioner would submit that a private complaint has been files against the petitioner under Sections 7(i) 16(1)(a)(i) r/w 2 (ia) (a) (m) of Prevention of Food Adulteration Act 1954 and Sections 7(v) 16(1) (a) (ii) of Prevention of Food Adulteration Act, 1954 and Rule 50(1) of Prevention of Food Adulteration Rules, 1955. He would further submit that the sample of milk has been taken on 25.08.2010, which was sent for the analysis to the Government Public Analyst, Guindy, on the same day. Report has been received only on 23.09.2010, but the complaint has been preferred on 10.05.2011 and 13(2) notice was issued to the petitioner only on 16.05.2011. Therefore, his right to send the product for second test is deprived and hence, he prays for quashing the proceedings in C.C.No.77 of 2011. 3. The learned counsel for the petitioner has also relied upon a judgment of the Supreme Court reported in (2010) 1 MLJ (Crl) 1134 (SC) [Girishbhali Dahyabhai Shal Vs. C.C.Jani and Another] and also judgments of this Court reported in (2008) 3 MLJ (Crl) 779 [Basker https://hcservices.ecourts.gov.in/hcservices/ 2 Vembu Vs. State of Tamil Nadu] and (2011) 3 MLJ (Crl) 99 [T.R.S.Vijaraj Vs. Commissioner]. 4. The learned Government Advocate (Crl. Side) would submit that all the procedures have been properly followed and hence, he prays for the dismissal of the application. 5. Considering the rival submissions made by both sides and also perusal of the materials on record, a private complaint has been registered against the petitioner under Sections 7(i) 16(1)(a)(i) r/w 2 (ia) (a) (m) of Prevention of Food Adulteration Act 1954 and Sections 7(v) 16(1) (a) (ii) of Prevention of Food Adulteration Act, 1954 and Rule 50(1) of Prevention of Food Adulteration Rules, 1955. Admittedly, the milk has been seized from the petitioner on 25.08.2010 and same has been sent for analysis on the same day. The analysis report has been received only on 23.09.2010, but the private complaint has been preferred only on 10.05.2011 and 13(2) notice was issued on 16.05.2011. Therefore, his right to sent the product for second test is deprived. The relevant portion of the Supreme Court judgment reported in (2010) 1 MLJ (Crl) 1134 (SC) [Girishbhali Dahyabhai Shal Vs. C.C.Jani and Another] is extracted hereunder: ... 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 of the accused could, if he so desired, make an application to the Court within a period of 10 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. In other Words, in the instant case, the appellant was prevented from appying 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 the case of Municipal Corporation of Delhi V. Ghisa Ram (Supra) referred to above. 6. The relevant portion of judgment of this Court reported in (2008) 3 MLJ (Crl) 779 [Basker Vembu Vs. State of Tamil Nadu] is also extracted hereunder: ... It is very unfortunate to note that prosecution was launched 17 months after the Public Analyst's Report dated 28.04.2004 and notice under Section 13(2) came to be served on the petitioners only on 04.102.005 and by that time, the 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. Due tot the inordinate laches on the part of the https://hcservices.ecourts.gov.in/hcservices/ 3 prosecuting agency, the valuable right of the accused is taken away; in such circumstances, this Court has no other option except to quash the entire proceedings pending against the petitioners before the trial Court. 7. The relevant portion of the judgment of this Court reported in (2011) 3 MLJ (Crl) 99 [T.R.S.Vijaraj Vs. Commissioner] is extracted here under: Food manufacturers who are accused of adulteration are entitled for a re-analysis of report and the deprival of accused of their indefeasible and valuable right of re-analysis would result in grave miscarriage of justice vitiating the proceedings. 8. As per the above said judgments, the respondent has not issued 13(2) notice within a period of 10 days from the date of receipt of the analysis report. Since the product is a milk product, which is a perishable one, there is no chance for the petitioner to send the sample for second analysis, his right has been deprived and hence, I am of the view that this is a fit case for quashing the proceedings in C.C.No. 77/2011 on the file of the Judicial Magistrate No.II, Srivilliputtur, Virudhunagr District. 9. Accordingly, this Criminal Original Petition is allowed and the proceedings in C.C.No. 77/2011 on the file of the Judicial Magistrate No.II, Srivilliputtur, Virudhunagr District is hereby quashed. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (Writs) /True Copy/ Sub Assistant Registrar To 1.The Judicial Magistrate No.II, Srivilliputtur, Virudhunagar District. 2.The Food Inspector, Sriviliputhoor Municipality, Virudhunagar District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.K.Jeganathan, Advocate (SR.No.24355) Crl.O.P.(MD).No.8761 of 2011 21.07.2011 vsm NSV/4.8.11/3P/5C https://hcservices.ecourts.gov.in/hcservices/