1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.09.2011 CORAM THE HONOURABLE Ms. JUSTICE R.MALA Crl.O.P.(MD)NO.9949 of 2011 and M.P.(MD)No.1 of 2011 S.Baskar ... Petitioner/Sole Accused Versus Food Inspector, Srivilliputhur Municipality, Virudhunagar District. ... Respondent/Complainant 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.76 of 2011 pending on the file of the learned Judicial Magistrate No.II, Srivilliputhur, Virudhunagar District as against the petitioner is concerned and quash the same. For Petitioner : Mr.K.Jeganathan 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.76 of 2011 now pending on the file of the learned Judicial Magistrate No.II, Srivilliputhur against the petitioner and quash the same. 2. The learned counsel appearing for the petitioner would submit the petitioner is a milk vendor and the respondent Food Inspector, Srivilliputhur, has taken a sample on 22.09.2010 at 07.45 a.m. After following the formalities, he sent the same to the Public Analyst, Food Analysis Laboratory on the same day on 22.09.2010 and the analysis report has been received by the respondent on 14.10.2010. It is the case that after obtaining proper permission, the respondent preferred a private complaint on 10.05.2011 and thereafter, only on 16.05.2011, 13 (2) notice has been issued. Since the milk is a perishable one and hence, opportunity to send the sample for second test to the Public Analyst has been deprived, the learned counsel prayed for quashing the complaint in C.C.No.76 of 2011 on the file of the learned Judicial Magistrate No.II, Srivilliputhur. 2. To substantiate his case, he lied upon the following decisions: 1. (2010) 2 Supreme Court Cases (Cri) 270 (Girishbhai Dahyabhai Shah Vs. C.C.Jani and another) https://hcservices.ecourts.gov.in/hcservices/ 2 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 (Crl. Side). 4. The learned Government Advocate (Crl. Side) would submit that the respondent has followed the procedure in the Prevention of Food Adulteration Act and the complaint has been filed within a stipulated time and therefore, there is no reason for quashing the proceedings. Hence he prayed for the dismissal of this petition. 5. Considering the rival submissions, the petitioner is a Milk Vendor, when he is doing milk vending, the respondent, who is authorised to take the sample for test for adulteration on 22.09.2010 at 7.45 a.m., has taken the samples of milk from the petitioner and totally 1500 ml, which is stored in three bottles, and one bottle containing 500 ml has been sent to the government analyst on the same day and a report has been received on 14.10.2010. But the complaint has been filed only on 10.05.2011 and thereafter, 13(2) notice has been issued on 16.05.2011. But, in the mean time, the life time of the product has been expired and hence, the petitioner's choice to send the sample for second time to the Public Analyst has been deprived. 6. 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 desired, either or both of them may make an application to the court within a period of ten days from the date of https://hcservices.ecourts.gov.in/hcservices/ 3 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 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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." 7. 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.” 8. 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 decisions cited supra are squarely applicable to the facts of the present case and hence, it is a fit case to quash the proceedings pending in C.C.No.76 of 2011 on the file of the learned Judicial Magistrate No.II, Srivilliputhur, Virudhunagar District. 9. In fine, the criminal original petition is allowed and the proceedings in C.C.No.76 of 2011 pending on the file of the learned Judicial Magistrate No.II, Srivilliputhur, against the petitioner is hereby quashed. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar (C.S) To 1. The Food Inspector, Srivilliputhoor Municipality, Virudhunagar District. 2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Crl.O.P.(MD)NO.9949 of 2011 22.09.2011 RR RJ/20.10.11 4p/3c https://hcservices.ecourts.gov.in/hcservices/