(Prayer: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records in C.C.No.148 of 2009 on the file of Judicial Magistrate No.II, Gobichettipalayam, and to quash the same. )
1. The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure to call for the records in C.C.No.148 of 2009 on the file of the learned Judicial Magistrate No.II, Gobichettipalayam and to quash the same.
2. The facts in a nutshell are as under:
The first petitioner claims to be a wholesale dealer of Aachi Chakki Fresh Atta. The second petitioner is the nominee of the third petitioner company, which is the marketer of the subject product. The fourth petitioner is the manufacturing company of the subject product. It is their case that all the statutory rules governing the food and its allied products are being strictly complied with.
3. It is stated that on 05.07.2008, the respondent had inspected one Karthikeyan Maligai Shop at Bus Stand in Nambiyur and took three sealed packets of Aachi Chakki Fresh Atta containing 500 grams each, as sample for analysis, alleging that the same were adulterated. The Public Analyst, in his report dated 28.07.2008, opined that the sample is adulterated, since the alcoholic acidity of the sample is more than the maximum permissible limit prescribed under the Prevention of Food Adulteration Act. Consequent the same, the respondent filed complaint in C.C.No.148 of 2009 on the file of the Judicial Magistrate No.II, Gobichettipalayam, under Section 16(i)(a)(i) read with Section 2(i)(a) and 2(m) of the Prevention of Food Adulteration Act and Rule 50(1) of the Prevention of Food Adulteration Rules.
4. Assailing the said complaint, the present petition is filed for the relief stated supra.
5. The learned counsel appearing on behalf of the petitioner contented that inasmuch as the petitioners are distributors, marketers and manufacturers having valid licenses as contemplated under the Prevention of Food Adulteration Rules, the petitioners can never be construed as unregistered/unlicensed dealers, distributors, marketers and manufacturers and, therefore, they are well protected under Rule 50(1) of the Prevention of Food Adulteration Rules.
6. It is further contended that the owner of one Karthikeyan Maligai Shop, Nambiyur, from whom samples were collected by the respondent, has been arrayed as first accused and he had admitted that the said shop is being run without licence.
7. He added that the petitioners had never sold or authorised the first accused to sell the product and that the first accused had on his own volition, with the intention to make money, that too without having valid licence, had committed such offence, and the petitioners are no way connected to it and as such the impugned complaint cannot be held to be maintainable against them.
8. The learned counsel vehemently contended that even though the Public Analyst filed his report on 28.07.2008, the complaint was lodged only on 04.11.2009, to wit, after expiry of fifteen months, in contravention of Section 11(4) of the Prevention of Food Adulteration Act, which mandates the respondent to take action within seven days of receiving the report.
9. Per contra, learned Additional Public Prosecutor appearing on behalf of the respondent submitted that as per the material evidence collected by the respondent, there is a clear and prima facie case to prosecute the petitioners as well as the first accused and moreover, all the legal requirements enumerated under the Prevention of Food Adulteration Act and the Rules framed thereunder have been followed. He prayed for dismissal of the petition.
10. I heard Mr.Vadivel Murugan for M/s.R.G.Narendhiran, learned counsel appearing for the petitioners and Mr.P.Govindarajan, learned Additional Public Prosecutor, appearing for the respondent and perused the records.
11. At the outset, it is apposite to record that even though this Court granted an order of interim stay on 09.06.2010, the respondent has not taken any steps to vacate the same and, by dint of the above said interim order, there is no progress in the proceedings initiated against the petitioners till date.
12. In the case on hand, it is beyond any cavil that on 05.07.2008, the respondent had inspected one Karthikeyan Maligai Shop at Bus Stand in Nambiyur and took three sealed packets of Aachi Chakki Fresh Atta containing 500 grams each as sample for analysis. The Public Analyst submitted his report on 28.07.2008, opining that the sample is adulterated, since the alcoholic acidity of the sample is more than the maximum permissible limit prescribed under the Prevention of Food Adulteration Act. However, the complaint was lodged only on 04.11.2009, i.e., after lapse of almost 14 months from the date of filing of the report by the Public Analyst.
13. This Court in G.Sivakumar and others v. Food Inspector, City Municipal Corporation of Coimbatore, 2009 1 LW (Crl.) 344, held as under:
8. A perusal of the complaint and the provisions of the Food Adulteration Act and the Rules framed would reveal that there are specific period prescribed for each stage. The reason behind is that the sample must be analysed either by the Public Analyst sent by the local health authority or by the Central Food Laboratory at the instance of the accused should be done in a quickest possible time. The said right is valuable one and where there is a denial of the right on account of the deliberate conduct of the prosecution that is delay in launching the prosecution, as a result of which, there is possibility of the sample became highly decomposed and could not be analyzed. In such event, the concerned accused will be seriously prejudiced.
10. In view of such a long delay in launching prosecution in the present case, the petitioners/accused are put to serious prejudice as they lost their right of having the sample analysed.
14. Referring to the aforesaid decision, another learned Judge of this Court in Selvakumar v. State, reported in 2010 (2) FAC 304, held as under:
7. As per the above said citations, because of the delay in issuing 13(2) notice the petitioner was prevented from sending the sample for second analysis within time prescribed. In such circumstances, I am of the opinion that all the citations are squarely applicable to the facts of the present case.
8. The learned counsel appearing for the petitioner would also rely upon the order of this Court made in Crl. O.P.(MD) No.5765 of 2009, where, the learned Judge cited the view of his Lordship Justice. Malai Subramanian in an earlier occasion, which read as follows:
The petitioner seeks to quash the proceedings pending against them in all the matter where they were prosecuted for the offence of misbranding under the provisions of the prevention of Food Adulteration Act.
2. According to the learned senior counsel, the label pasted on the containers of the food products do not contain the term up to as ordered in the letter of the State Local Health Authority and joint Director in. his communication dated 28.9.2001. The petitioner plead that they are not aware of the distinction between new label and the old one. They also undertake to paste the new labels on the food products hereafter. It does not appear to be a grave offence of misbranding. There is not much distinction between the contents of the earlier label and the new label except incorporation of certain words.
It is also appropriate to consider the decision of this court made in Crl. O.P.(MD) No.11867 of 2009, wherein, this Court has held as follows:
A perusal of the complaint would reveal that it has been merely stated that sample is misbranded as it is not labelled in accordance with Rules 32(f)(i) and 42 (zzz) 17 of P.F.A. Rules, 1955. It is not quite clear as to how the sample is misbranded and the averments made in the complaint are also bereft of any particulars. There must be a specific averment that the customers are being mislead on account of misbranding and in the absence of any such clear averments, it cannot be said that the customers are mislead or misdirected.
9. A perusal of the public analyst s report would reveal the Public Analyst has simply stated that the sample was misbranded since it is not labelled in accordance with the requirements of Rule 37 of P.F.A. Rules 1955, but he has not mentioned as to how and what manner the sample was misbranded. There must be a specific averment that the customers being mislead on account of misbranding and in the absence of any such clear averments, it cannot be said that the customers are mislead or misdirected.
10. In the above stated circumstances, as already stated that there is a delay in issuing 13(2) notice and the details of misbranding has not been mentioned, I am of the view that the complaint against the petitioner is liable to be quashed.
15. In view of the principles laid down in the above decisions and in view of the fact that there has been a delay of more than 14 months in filing the complaint, thereby depriving the accused of the valuable right under Section 13 (2) of the Act because of the violation of the mandatory requirements under Section 11 (4) of the Act, it is held that no useful purpose would be served by continuing the prosecution aga
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inst the petitioners. Even if the second sample is properly sealed in a container, the contents in it would be deteriorated. No explanation is forthcoming for the delay of over 14 months in lodging the complaint after the report of the Public Analyst is submitted. In view of the said lapse on the part of the respondent, even if the accused would like to exercise their valuable right conferred under Section 13(2) of the Act, it would serve no useful purpose because the condition of the sample would not be same. Therefore, the proceedings are liable to be quashed. 16. Accordingly, the proceedings initiated against the petitioners in C.C.No.148 of 2009 on the file of the learned Judicial Magistrate No.II, Gobichettipalayam, are held liable to be quashed and accordingly quashed. 17. In the result, the Criminal Original Petition is allowed and the proceedings in C.C.No.148 of 2009 on the file of the learned Judicial Magistrate No.II, Gobichettipalayam, is quashed. No costs. Consequently, connected miscellaneous petition is closed.