HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL PETITION.No.5595 of 2008 ORDER: This Criminal Petition is filed under Section 482 Cr.P.C. to quash proceedings in C.C.No.36 of 2005 on the file of the Court of the Judicial Magistrate of First Class at Kamareddy, Nizamabad District. 2. The petitioners are the accused A-1 to A-5 and the respondent is the complainant in the calendar case and for the sake of convenience, I refer them hereinafter as they arrayed in the calendar case. 3. In the calendar case, the petitioners have been charged on the ground of committing offence punishable under Sections 16 (1) (a) (i) and 7 (i) & 2 (ia) (j) of the Prevention of Food Adulteration Act, 1954 (for brevity ‘the Act’) on the ground that on 06-11-2003 at about 4.45 p.m., the complainant went to the shop of 1st accused viz., Sri Laxmi General Stores, situated at H.No.1-7-174, JPN Road, Kamareddy, and at that time, the 1st accused, who was the vendor and owner of the shop, was transacting the business and the complainant found ‘cadbury gems’ meant for human consumption as food article, and on suspicion, he intended to purchase and called for witnesses and then purchased 600 gms of Cadbury gems (kept in the shop as human food article), paying Rs.135/- as samples and obtained necessary receipt and got sent one sample to the public analyst, State Food Laboratory, Hyderabad, through Local (Health) Authority, Zone-II, Kakinada, for necessary analysis and report all observing necessary formalities and in-turn, the public analyst sent his report after due analysis that “yellow, blue, green violet and red coloured gems do not conform to the standard of total die contains and therefore, adulterated as per Section 16 (i) (a) (i) and 7 (i) and 2 (ia) (j) of the Act”. Thereafter, a notice was sent to the petitioners on 10-03-2005 under Section 13 (2) of the Act to the same effect. Basing upon it, the complaint was filed which was taken cognizance of the learned Magistrate after observing the necessary formalities against the accused on the ground that they were the vendor, and others connected with the product. 4. It is the contention of the learned counsel for the petitioners that the sample was packed on September 2003 and its ‘best before date’ was 12 months from the date of its packing and one year five months after the ‘best before date’, and also after about 15 months of the receipt of the public analyst, the notice was served and thus, the petitioners were deprived of their valuable right to get the second sample of the product analyzed by the Central Food Laboratory to establish their innocence of the charge and hence, the proceedings are to be quashed. In support of his contention, he has relied upon the following decisions. 1. Nebh Raj vs. State (Delhi Administration)[1], 2. State of Haryana Vs. Unique Farmaid Pvt. Ltd.[2], 3. Shri Rohit Mull and Cadbury India Ltd. Vs. The State of Goa[3], 4. Konda Suryanarayana and Others vs. State of A.P.[4], 5. Smt. I.Savitri (alilas Saraswathi) and others vs. State of A.P. and another[5], 6. M/s.Ruchi Infrastructure Ltd. Vs. Food Inspector, Division-II, Nalgonda[6] and 7. Medicamen Biotech Ltd., andanother vs. Rubina Bose, Drug Inspector[7]. 5. It is the contention of learned counsel for the respondent that by virtue of Section 13 (2) of the Act only on the application to be filed by the petitioners, necessary steps were to be taken and in the absence of such application, it cannot be said that the relevant provision of law was violated. 6. Section 13 (2) of the Act mandates that necessary opportunity should have been given to the accused for the purpose of sending the second sample for necessary analysis in the Central Food Laboratory before ‘best before date’. As contended by the learned counsel for the petitioner, in I.Savitri’s case (5 supra), it is observed when similar question arose that there is abnormal delay in the service of a copy of the analyst report on the accused, and on the sample bottles, it is printed as “best before May 2000” and a copy of the analyst report ought to have been served on the accused immediately after the receipt of the analyst report on 24-12-1999 to enable the accused to file an application to send the other sample to the Central Food Laboratory and as the report was served only in the month of March 2000, by which time, the expiry period was already over, no purpose would have been served by sending the sample to the Central Food Laboratory and as the accused lost his valuable right to establish his innocence and hence, the Criminal Petition should be allowed. Further, in Unique Farmaid Pvt Ltd. (2 supra), similar observations were made under similar circumstances, and it is further held that if the expiry date of sample is not relevant, there is no reason why in the form prescribed for the submission of the report by the insecticide analyst, the date of manufacture of the article and the expiry date are mentioned and further held Section 30 (1) of the Insecticide Act, 1968, only prescribes in effect that ignorance would be no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused got no remedy. Further, in Rubina Bose (7 supra), it is observed taking into consideration relevant facts and circumstances of the case, that there is no explanation as to why the complaint itself had been filed about one month before the expiry of life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed and so on and the facts of the case suggest that the appellants were deprived of the valuable right to ascertain their innocence by way of taking necessary measures. The observations made hold good to the facts and circumstances of the present case. 7. Therefore, a copy of the public analyst report should have been served on the accused in the earlier to the best before expirty date for the purpose of taking necessary steps for sending the 2nd sample to the Central Food Labouratory for analysis and report to prove his innocence of the allegations and the omission is fatal. 8. By virtue of Section 13 (2) of the Act itself, on application made by the accused, necessary steps are to be taken. This is only directory and it is subject to the mandatory provision of giving opportunity to the accused to send the second sample to the Central Food Laboratory for analysis to prove his innocence. 9. Therefore, in view of the various decisions rendered by the Apex Court, and, for the reasons discussed above, it is nothing but abuse of process of law to allow the proceedings in the calendar case to be continued, and hence the proceedings to be quashed upholding the claim of the petitioners. 10. In the result, the Criminal Petition is allowed quashing the proceedings in C.C.No.36 of 2005 on the file of the Court Judicial Magistrate of First Class at Kamareddy, Nizamabad District, taking recourse under Section 482 Cr.P.C. __________________________________ JUSTICE G. KRISHNA MOHAN REDDY Date: 08-04-2011 KVR [1] AIR 1981 S.C. 611 [2] 1999 (8) S.C.C. 190 [3] 2006 (108) Bombay Law Reporter 350 [4] 2006 (1) ALT (Crl.) 446 (A.P.) [5] 2006 (2) ALT (Crl.) 44 (A.P.) [6] 2007 (3) ALT (Crl.) 397 (A.P.) [7] 2008 (7) S.C.C. 196