IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 19.08.2008 Coram:- The Hon'ble Mr. Justice R.REGUPATHI Crl.O.P. No.10489 of 2006 and Crl.M.P. No.2732 of 2006 1. Baskar Vembu Indian Inhabitant, the nominee of Cadbury India Ltd., having his address at 146, Royapettah High Road, Mylapore, Chennai-600 004. Representing Cadbury India Limited, a Company incorporated under the Indian Companies Act, 1913, and having its registered office at Cadbury House, 19, Bhulabhai Desai Road, Mumbai 400 026. ... Petitioner/ Accused vs. The State of Tamil Nadu at the instance of K.Jebaraja Shobana Kumar, Food Inspector, Food & Drugs Administration, Tamil Nadu. ... Respondent/ complainant Petition under Section 482 of the Code of Criminal Procedure to call for the records and proceedings of Criminal Case No.SMMF 5 of 2005 pending before the XX Metropolitan Magistrate, Ripon Buildings, Chennai, and quash the same. For petitioners : Mr.Zaffarullah Khan For respondent : Mr.J.C.Durai Raj, Govt. Advocate (Crl. Side) https://hcservices.ecourts.gov.in/hcservices/ O R D E R Petitioner No.2/Cadbury India Limited is a Company engaged in the business of manufacture and sale of chocolate and sugar confectionary and petitioner No.1 is its nominee. They seek to quash the proceedings pending against them for the offences punishable under Sections 7(i) and 16(1)(a)(i) read with Sec.2(ia) (a) and (m) of the Prevention of Food Adulteration Act (hereinafter referred to as 'Act') in Criminal Case No.SMMF 5 of 2005 on the file of the XX Metropolitan Magistrate, Rippon Buildings, Chennai. 2. It is the case of the prosecution that on 02.04.2004, the complainant-Food Inspector visited M/s.Royal Shoppee owned by the first accused by name Mohammed Usman and, for the purpose of testing as to whether there was any adulteration in Cadbury Dairy Milk Products, purchased 630 gms. of Cadbury Dairy Milk Crackle by paying Rs.270/-, divided it into three parts (210 grams each) and packed each part with thick brown paper. After observing the formalities, one of the samples was sent to the Public Analyst for analysis and the other two samples were despatched to the Local Health Authority. By report dated 28.04.2004, the Public Analyst after observing, "the total fat content in the milk chocolate was 23.2% compared to the prescribed standard of 25%. Further the sample was found to be discolored, hard with white spots seen on each cut pieces. Also that the sample was found to contain thread like structures, on the joint pieces of the chocolate.", concluded that 'the sample of Cadbury milk chocolate is discolored in appearance, purity and quality is also not wholesome in nature, as such, the sample is adulterated'. Thereafter, a complaint was filed before the learned Magistrate, whereupon, summons were issued to the petitioners/A2 and A3 respectively on 22.09.2005 and subsequently the Local Health Authority issued the notice under Section 13(2) of the Act on 04.10.2005. 3. Learned counsel for the petitioners submits that the learned Magistrate ought not have taken cognizance in the matter in view of the reason that certain mandatory provisions of law have been glaringly violated. By pointing out that, as per Section 13 (2) of the Act, the Local Health Authority shall, on receipt of the Public Analyst's report to the effect that the article of food is adulterated, after the institution of prosecution against the persons concerned, forward a copy of the report of the result of the analysis, informing such person or persons that if it is so desired, an application to the Court may be made within a period of ten days from the date of receipt of the copy of the report to get https://hcservices.ecourts.gov.in/hcservices/ the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, he further submits that, in the case on hand, the sample was taken on 02.04.2004 and the report of the Public Analyst received on 28.04.2004, however, neither prosecution has been launched immediately nor notice under Section 13(2) of the Act issued soon after initiation of the prosecution. For the first time, the petitioners were issued with the summons only on 22.09.2005 and thereafter, they received the notice under Section 13(2) of the Act on 04.10.2005. Thus, the very purpose of the enactment is defeated due to the overmuch delay in initiating the prosecution and sending the notice under Section 13(2) of the Act. Apart from that, the date of expiry of the product being July, 2004, the notice was indolently sent to the petitioner only on 04.10.2005. Ultimately, by referring to Rule 14 of the Prevention of Food Adulteration Rules (in short 'Rules') which is to the following effect, "14. Manner of sending samples for analysis.-- Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. ", it is stated that, at the time of drawing samples, the procedure prescribed under the Rules has not been followed properly. At any rate, even if the sample available with the Local Health Authority is sent to the Central Food Laboratory for analysis after expiry of about 18 months ie., after the Best Before date of the sample, no useful service would be served as the sample is not fit for analysis. According to him, inasmuch as the valuable right of the petitioner in getting the second sample analysed by the Central Laboratory is frustrated, this Court exercising its jurisdiction under Section 482 of the Code of Criminal Procedure may quash the entire proceedings pending against the petitioners before the trial court. 4. Per contra, learned Government Advocate appearing on behalf of the complainant submits that no doubt, the sample was taken on 02.04.2004 and the report of the Public Analyst received on 28.04.2004 and admits that the prosecution should have been initiated immediately. However, since a complaint was preferred before the learned Magistrate and summons were issued on 22.09.2005 and only thereafter, notice under Section 13 (2) came to be served on the petitioners on 04.10.2005, the proceedings before the trial court may be allowed to continue. 5. I have perused the materials available on record and carefully considered the rival submissions made on either side. As per records, the sample sent to the Public Analyst was https://hcservices.ecourts.gov.in/hcservices/ found to be adulterated and no doubt, the Report of the Analyst is admissible in evidence. At the same time, there cannot be any doubt that there is a right available to the accused by virtue of Section 13(2) of the Act to get another sample available with the Local Health Authority analysed by the Central Food Laboratory by making an application to the court within ten days from the date of receipt of copy of the Public Analyst's Report. In a case where the accused does not choose to exercise this right, the case against him could be decided on the basis of the report of the Public Analyst. But, in a case where the accused exercises the right by making an application to send the sample for analysis to the Central Food Laboratory and at that point of time, the sample of the food article has so deteriorated and decomposed that no analysis is possible and thereby the right of the accused is frustrated, the conviction of the trial court or the prosecution launched cannot be sustained. Further, where it is found that such denial of right is due to the deliberate conduct or inordinate laches on the part of the prosecution, no weight could be given at all to the report of the Public Analyst. In these type of cases, it is always expected that the prosecution proceeds in such a manner that the right available to the accused under Section 13(2) of the Act is not denied to him, for, the Report of the Director of Central Food Laboratory supersedes the Report of the Public Analyst and treated as conclusive evidence of its contents. To avoid decomposition, decay or deterioration of the Food sample, Rule 14 of the Rules specifies the manner for sending the sample for analysis; and, to enable the accused exercise the right available to him, Section 13(2) of the Act provides that the Local Health Authority shall, after institution of the prosecution, forward a copy of the analysis report to him/them informing that he/they may 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 the food article kept by the Local Health Authority analysed by the Central Food Laboratory; thus, it is manifestly clear that when the authority decides to initiate the prosecution, utmost care and caution must be exercised and notice must be issued to the accused concerned without any lapse of time so that he/they can exercise the option of sending the second sample to the Central Food Laboratory for receiving the opinion, which is conclusive and final. 6. In the present case, even if the stand taken by the respondent is accepted that the samples were drawn in the manner as prescribed in the Rules, there is a gross failure on their part in launching the prosecution instantly as enunciated in the Act. 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 https://hcservices.ecourts.gov.in/hcservices/ 04.10.2005 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 to the inordinate laches on the part of the 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. In the result, the petition is allowed and the proceedings against the petitioners in Criminal Case No.SMMF 5 of 2005 pending before the XX Metropolitan Magistrate, Ripon Buildings, Chennai, are quashed. Connected Miscellaneous Petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The XX Metropolitan Magistrate, Ripon Buildings, Chennai. 2. Food Inspector, Food & Drugs Administration, Tamil Nadu. Crl.O.P. No.10489/06 JSV (CO) kk 6/9 https://hcservices.ecourts.gov.in/hcservices/