IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 Crl.Rev.Pet.No. 766 of 2009() ----------------------------- C.M.P.NO.1151/2009 IN S.T. 160/09 OF THE JUDL. FIRST CLASS MAGISTRATE, KAYAMKULAM. REVN. PETITIONER(S): ACCUSED 1, 2, 3:- --------------------- 1. MUHAMMAD BASHEER, PATTANIPARAMBIL, KOTTUKULANGARA, KAYAMKULAM (K.S.STORE, KMC XIII/424, MUKKAVALA, KAYAMKULAM. 2. SHEFEEQUE H. (NOMINEE), S/O.K.HAMEED, PRODUCTION MANAGER, JANS CURRY POWDER, KRISHNAPURAM PANCHAYAT (THOPPIL HOUSE, KANNANKARA, PATHANAMHITTA) 3. M/S. JANS CURRY POWDER, REPRESENTED BY NOMINEE – SHEFEEK H., KRISHNAPURAM, KAYAMKULAM. BY ADV. SRI.K. ABDUL JAWAD RESPONDENT(S): --------------- 1) STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2) THE FOOD INSPECTOR, KAYAMKULAM MUNICIPALITY. BY P.P. SRI. PUZHAKKARA MUHAMMED. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. 766 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 26th day of February, 2009 O R D E R Petitioners are accused 1 to 3 in S.T.No.160/2009 on the file of the Judicial First Class Magistrate, Kayamkulam registered under sections 16(i)(a)(ii) read with section 7(i) and (v), 2(ia) (a) of the Prevention of Food Adulteration Act, 1954 and rule 29 of Prevention of Food Adulteration Rules, 1955. The article of food in question was rasam powder. According to petitioners, by the time the prosecution was launched by the 2nd respondent Food Inspector, the petitioner's right under section 13(2) of the Act for requesting the second sample to be despatched to the Central Food Laboratory had been virtually lost and the life span of the article of food was over by then. It is their case that even if the sample were to be sent to the Central Food Laboratory, it would have already undergone a high degree of decomposition, rendering it unfit for analysis. Petitioners therefore filed C.M.P. No.1151/2009 before the learned Magistrate seeking a discharge. As per the impugned order dated 18-2-2009 the learned Magistrate dismissed the application for discharge. Hence, this revision. 2. Learned counsel for petitioners placed strong reliance on decisions reported in R. Narayana Swami & another V. The Crl.R.P.766/09 -2- Food Inspector and another (2007(2) KLJ 581), Nestle India Ltd. V. A.K.Chand, Food Inspector, Kalanhandi and another (1996(1) FAC 304), T.V.Usman V. Food Inspector, Tellicherry Municipality (AIR 1994 SC 1818) to buttress their contention that when the valuable right of the accused under section 13(2) of the Act is lost on account of the delay in launching the prosecution, they are prejudiced in their defence and that itself is a ground for discharge/acquittal. It was also submitted that even if the samples were to be sent at this distance of time, it would have undergone a high degree of decomposition rendering the sample unfit for analysis. 3. These are all contentions which the revision petitioner can raise before the court below during the trial of the case. Admittedly the petitioner has filed a petition for sending the sample to the Central Food Laboratory. It is premature for this Court to consider the above contentions and discharge the revision petitioners. Hence, without prejudice the right of the petitioners to raise all these contentions before the court below, this revision petition is dismissed. V.RAMKUMAR, JUDGE. mn.