IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 13TH SEPTEMBER 2007 / 22ND BHADRA 1929 Crl.MC.No. 2663 of 2007() ------------------------- AGAINST THE ORDER DATED 17/07/2007 IN CMP 9198/2007 IN CC.1283/2005 of JUDL.MAGISTRATE OF FIRST CLASS, KARUNAGAPPALLY .................... PETITIONER: ACCUSED ------------------- K.NOUFAL, PROPRIETOR, N.N.STORES, PALAMOODU, PAVUMBA, KARUNAGAPPALLY. BY ADV. SRI.B.SURESH KUMAR RESPONDENTS: COMPLAINANT & STATE -------------------------------- 1. THE FOOD INSPECTOR, KARUNAGAPPALLY CIRCLE, KARUNAGAPPALLY. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE FOOD INSPECTOR, KARUNAGAPPALLY. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.2663 of 2007 ---------------------------------------- Dated this the 13th day of September 2007 O R D E R The petitioner faces indictment in a prosecution under the provision of Prevention of Food Adulteration Act. The petitioner wanted to invoke his right under Section 13(2) of the Act to forward the sample to the Central Food Laboratory. The application was not filed within the stipulated time. The learned Magistrate, by the impugned order, rejected the said prayer on the ground that the application is belated. The learned counsel for the petitioner submits that the mere fact that there was delay is no sufficient reason in itself to reject the application to forward the sample to the Central Food Laboratory. In the peculiar facts and circumstances of this case, the learned Magistrate must have sent the sample to the Central Food Laboratory at the expense of the petitioner. If it were found ultimately that the sample is not fit for analysis on account of passage of time, it can be considered whether the petitioner's right under Section 13(2) has been frustrated or not and whether the petitioner is responsible for not availing such right within the stipulated time. Crl.M.C.No.2663/07 2 2. The learned Public Prosecutor, after taking instructions, submits that the complainant has no objection in the sample being forwarded to the expert; but hastens to submits that in case it is not fit for analysis, the petitioner cannot be conceded any benefit or advantage. 3. I am, in these circumstances, satisfied that the sample can be sent to the Director, Central Food Laboratory for further examination. The question whether there is any frustration of the right of the petitioner to get the sample analysed under Section 13(2) of the Act will arise if and only if the sample is found to be unfit for analysis. That question has to be considered by the learned Magistrate. 4. In the result, this petition is allowed. Direction is issued to the learned Magistrate to forward the sample to the Central Food Laboratory and secure a report. If the report shows that the sample is unfit for analysis, the learned Magistrate shall be at liberty to take appropriate decision on the question whether there has been frustration of the right of the petitioner under Section 13(2) of the Act. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.2663/07 3 Crl.M.C.No.2663/07 4 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007