*THE HON’BLE SRI JUSTICE K.G. SHANKAR +Crl.P.No.4234 of 2008 % 15.04.2011 Between: #Pydi Prasada Rao and another … Petitioner Vs. $State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent ! Counsel for the petitioner: Sri T. Niranjan Reddy Counsel for the Respondent: Public Prosecutor <Gist: >Head Note: ? Cases referred: 2007-FAC-1-90 AIR 1976 SC 621 tTHE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Petition No.4234 of 2008 Date: 15.04.2011 Between: Pydi Prasada Rao and another … Petitioners/ A.1 and A.2 AND The State of A.P., Rep.by the Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Petition No.4234 of 2008 ORDER: The petitioners are the accused in C.C.No.59 of 2008 on the file of the Judicial Magistrate of First Class, Srikakulam. They allegedly committed the offences under the provisions of the Prevention of Food Adulteration Act, 1954 (‘the Act’ for short) and the Rules, 1955 therein. The second petitioner is the Proprietor of a Hotel styled as ‘Teja Tiffins Parlour and Family Restaurant’ at Srikakulam. The first petitioner is the vendor and agent of the second petitioner. 2. On 27.04.2005, when the Food Inspector along with his staff visited the premises of the Restaurant of the second petitioner, the first petitioner was found to be transacting business. The Food Inspector found green gram in the hotel premises. Suspecting the same to be adulterated, the Food Inspector purchased 1500 grams of green gram from the first accused by paying Rs.42/- to the first petitioner. 3. Samples were drawn therefrom. The report of the Analyst disclosed that the sample was adulterated foodstuff. Consequently, prosecution was launched against the petitioners. 4. The learned counsel for the petitioners contended that no case is made out against the petitioners. His contentions are three- fold. He contended that the report of the analyst did not give any reasons how the sample was adulterated food. He also contended that there was a delay of nearly two years between the date of the report of the analyst and the date on which the complaint was laid before the Court and that notice u/s.13 (2) of the Act was not issued. He finally contended that the sample lifted by the Food Inspector was not meant for sale and that the very provisions of the Act do not apply. 5. The inspection was conducted by the Food Inspector on 27.04.2005. The sample would appear to have been sent for analysis on 30.04.2005. The report of the analyst was signed on 30.05.2005. The analyst referred to five items in the report. Column No.4 of the report would show that the variation was within reasonable limit. Nevertheless, the analyst opined that the sample was adulterated foodstuff on the ground that the sample contained synthetic colour tartrazine. I am afraid that where the analyst considered that the foodstuff is adulterated on account of the presence of tartrazine, it cannot be said that the foodstuff was not adulterated and that the report should not be accepted. Prima facie the report of the public analyst is liable to be taken into consideration. I, therefore, reject the contention of the learned counsel for the petitioners that the report of the public analyst did not give reasons for concluding that the sample was adulterated and that the report of the analyst, therefore, cannot tag liability to the petitioners. 6. The learned counsel for the petitioners contended that there was abnormal delay in filing the complaint. While the inspection was held on 27.04.2005 and while public analyst gave the report on 30.05.2005, the complaint was laid on 26.04.2007. Nearly two years elapsed between the date of the inspection and the report of the analyst and the complaint. However, mere delay in filing the complaint per se is not a ground to quash the proceedings. The contention of the learned counsel for the petitioners that the proceedings are liable to be quashed on the ground that the complaint was filed about two years after the inspection, therefore, is not sustainable and is rejected. 7. However, there is a vital link between the filing of the complaint and the date of the report of the analyst. The learned counsel for the petitioners pointed out that notice u/s. 13(2) the Act was not issued. Section 13 (2) notice is mandatory. Further, Section 13 (2) notice is expected to be issued within 10 days from the date of the report of the analyst. The purpose of notice is to enable the petitioners to seek to send another sample for analysis and report, if necessary, from a different analyst. While so, whereas the analyst analyzed the sample on 30.05.2005, the complaint was laid on 26.04.2007, so much so the petitioners lost their valuable right to seek to send another sample for analysis. Where Section 13 (2) of the Act notice is mandatory and where such a notice admittedly was not issued, the prosecution launched against the petitioners becomes illegal and is liable to be quashed. The contention of the learned counsel for the petitioners that the prosecution violated the provisions of Section 13 (2) of the Act and that the complaint consequently is liable to be quashed deserves to be accepted. 8. The most important allegation in this case is that the very case does not fall within the ambit of the Prevention of Food Adulteration Act. The provisions of the Act would apply in respect of adulterated foodstuff, which is sought to be sold. In the present case, the contention of the petitioners is that the green gram was never intended to be sold to the public. 9. It is the case of the Food Inspector that he found about 4 kgs of green gram in the premises of the Restaurant owned by the second petitioner and that the first petitioner informed that the same is used as ingredient for preparing tiffins and meals. In other words, the Food Inspector himself claimed that the green gram was not sold as such to the public for human consumption. The question is whether it would be tantamount to adulteration within the meaning of the Act, assuming that the green gram found in the premises of A.2 was adulterated. 10. It is the case of the Food Inspector that he purchased 1500 grams of green gram for Rs.42/- from A.1. Indeed, the purchase was for analysis purpose. The question is whether the green gram would not be foodstuff for human consumption is within the meaning of the Act if the first petitioner sold 1500 grams of green gram to the Food Inspector. 11. It may be recalled that the Food Inspector himself mentioned in the charge sheet that the first petitioner informed him that the green gram was not for sale as such, but was to be used in tiffins and meals for sale for human consumption. 12. In C.S. Ram Mohan v. State of A.P.[1], a similar question arose. In that case black pepper was purchased by the Food Inspector. The black pepper was not meant for sale in the form in which it was purchased, but was to be sold as foodstuff. This Court held that in the light of the judgment of the Supreme Court in Delhi Municipality v. L.N. Tandon[2] and in view of the provisions of Section 10 of the Act, the sample of black pepper could not be considered to be foodstuff sold for human consumption. Consequently, this Court held that the prosecution against the accused was bad and accordingly quashed the same. 13. As rightly submitted by the learned counsel for the petitioners, the facts in the present case are identical with the facts in the cited case. In the present case, green gram was found in the premises of the Restaurant whereas black pepper was found in the cited case. In both the cases, the green gram and the black pepper were not meant to be sold in the shape in which they were found in the premises. It was to be converted into foodstuff in tiffins and meals. This Court considered that in such an event, it would not be tantamount to sale of food item for human consumption. I see no reason to defer with the opinion of this Court in the cited case. 14. I agree with the contention of the learned counsel for the petitioners that the foodstuff purchased by the Food Inspector was not a food item within the meaning of the Act. Once the sample seized from the premises of A.2 from the custody of A.1 is not a food item within the meaning of Act, whether the same is adulterated or otherwise, the petitioners cannot be prosecuted for the offences under the provisions of the Act. The prosecution of the petitioners, consequently, is misconceived and is liable to be quashed. 15. Accordingly, the Criminal Petition is allowed. The prosecution of the petitioners for the offences under the provisions of the Act and the Rules therein through C.C.No.59 of 2008 on the file of the Judicial Magistrate of First Class, Srikakulam is hereby quashed. _______________ K.G. SHANKAR, J Date: 15.04.2011 Note: L.R. Copy marked (B/o.) Isn [1] 2007-FAC-1-90 [2] AIR 1976 SC 621