AI Structured Summary
Not yet generated for this judgment
Judgment
M. Chockalingam, J.—This O.P. has been brought forth, seeking to quash the proceedings pending in C.C. No. 266 of 2004 on the file of
the Judicial Magistrate No. III, Erode, taken cognizance by the said Court on the complaint lodged by the respondent-the Food Inspector, in
charge (Panchayat Union, Erode), Government Primary Health Centre, Chitode, Erode District.
The gist case of the respondent-complainant was that the toned milk food samples were lifted on 22.7.2003 and despatched to the Government
Analyst, Guindy on 23.7.2003. The Government Analyst, by his letter dated 24.7.2003 informed the Local Health Authority that the toned milk
food sample was broken in transit and requested to send the second portion of the sample, and the letter was received by the Local Health
Authority on 30.7.2003. The second portion of the food sample was despatched to the Government Analyst''s Office on 4.8.2003 and the same
was received by the Government on 7.8.2003. The Government Analyst''s Report No. 356/2003-2004 dated 26.8.2003 with Form III report
was received by the Local Health Authority on 28.8.2003 and forwarded to the Food Inspector, and the Food Inspector, in turn sent a letter on
3.9.2003 to the third accused, seeking for the details in Form VIII and Form VIII nomination was received by the Food Inspector on 29.9.2003.
The respondent submitted a letter to the Joint Director, Public Health and Preventive Medicine, Chennai on 2.10.2003, requesting written consent
for launching prosecution. The said consent was received by the Local Health Authority on 23.1.2004 and received by the Food Inspector on
30.1.2004. The complaint was filed on 31.3.2004 and the same was returned to the Food Inspector on 2.4.2004. The same was resubmitted on
23.4.2004 and was taken on file on 13.5.2004. Notice as contemplated under the provisions of Prevention of Food Adulteration Act, 1954
(hereinafter referred to as ""the Act"") was sent to the petitioners on 18.5.2004 and thus the case was taken cognizance by the Court and the same
is pending.
Learned counsel for the petitioners raised two contentions before this Court. First one is that there has been undue delay in launching the
prosecution, wherein the valuable right of the petitioners, seeking for the second analysis, was frustrated, since, within the period, the milk, which
was taken on sample, was thoroughly decomposed and no purpose would be served. The second is that the complaint was lodged before the
lower court on 31.3.2004 and the notice, what is contemplated u/s 13(2) of the Act, should have been issued within ten days from the date of
institution of proceedings; but, in the instant case, it was issued only on 18.5.2004, and it is mandatory that the provision u/s 13(2) of the Act has
to be complied with by the prosecution, and hence, the complaint has to be quashed.
In answer to the above, learned counsel for the State would submit that originally, the complaint was presented before the Judicial Magistrate on
31.3.2004; but, the same was returned on 2.4.2004 and re-presented before the said Court on 23.4.2004, which was taken cognizance by the
Court on 13.5.2004, and notice u/s 13(2) of the Act was issued on 18.5.2004, thus, the notice was sent within a period of ten days from the date
of institution and as such, there is no violation of mandatory provision, as contemplated under the Act.
It would be more appropriate and advantageous to reproduce the provision u/s 13(2) of the Act, which is as follows:-
13(2): On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local
(Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the
person, if any, whose name, address and other particulars have been disclosed u/s 14A, forward, in such manner as may be prescribed, a copy of
the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either
or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the
sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
A reading of the above provision would make it explicit that the accused has got a valuable right to ask for sending the sample for analysis by
the Central Food Laboratory. The purpose of the said provision was only to enable the accused to move the Court to get the sample kept by the
local health authority, analysed by the Central Food Laboratory. The said provision clearly prescribes that on receipt of the report of the result of
the analysis to the effect that the article of food is adulterated, the Local Health Authority should send a copy of the report of the result of the
analysis within 10 days from the date of the receipt of the copy of the report. It also contemplates that the person accused of a charge of
adulteration, shall be allowed 10 days time to make an application to get the sample sent to the Central Food Laboratory for analysis. Needless to
say that the accused can make available of this right only after the institution of the prosecution. In a given case, if the prosecution starts at a time
when that part of the sample, which has to be subjected to the analysis by the Central Food Laboratory on the application of the accused, has
become unfit for analysis, the valuable right cannot be availed by the accused.
In the instant case, the sample of toned milk was taken on 22.7.2003 and despatched to the Government Analyst on 23.7.2003. Pursuant to an
information that the toned milk food sample was broken in transit, the second portion of the sample was sent, and on analysis, a report was
received on 7.8.2003. The same was received by the Local Health Authority on 28.8.2003. But, the written consent for launching the prosecution
was received by the Local Health Authority on 23.1.2004, and the same was received by the Food Inspector on 30.1.2004. The complaint filed
on 31.3.2004 was returned, and the same was re-submitted on 23.4.2004. The same was taken on file on 13.5.2004. It would be abundantly
clear that the sample of toned milk was taken on 22.7.2003, the Food Inspector presented the complaint on 31.3.2004, and after it was taken on
file on 13.5.2004, notice u/s 13(2) was issued to the petitioners on 18.5.2004. Thus, it would be quite evident that a notice along with the report of
the analyst was sent on 18.5.2004, after an interval of nearly 10 months. By that time, the milk sample would have become decomposed. Thus, the
right of the accused available u/s 13(2) has been frustrated, due to the inordinate delay and inaction on the part of the prosecution.
The second contention put forth by the learned counsel for the petitioners that the notice has not been issued within time as contemplated u/s
13(2) of the Act has got to be accepted.
Learned Government Advocate for the respondent would submit that though the complaint was originally filed before the lower Court on
31.3.2004, the same was returned and re-presented on 13.5.2004, on which date it was taken cognizance, and notice was issued on 18.5.2004
i.e. within ten days as stipulated u/s 13(2) of the Act and hence it cannot be stated that notice was issued out of time.
Contrary to the above contention, it is contended by the learned counsel for the petitioners that what is found in Section 13(2) of the Act is the
filing of the complaint and not the date when it was assigned with the number by the lower Court. In support of his contention, he would rely on a
Judgment of this Court in ABDUL MAJEED v. STATE BY FOOD INSPECTOR 1981 L.W.Crl.305. This Court had an occasion to consider
what is the import of the word employed in Section 13(2) of the Act in the said case. The institution of the proceedings under this Act would mean
the filing of the complaint before the Court, which has jurisdiction over the same. Hence, the contention of the learned counsel for the petitioners
has got to be accepted. Thus, this Court has to agree with the petitioners on both the above contentions, and the proceedings, in the opinion of this
Court, are liable to be quashed.
For the reasons stated above, this criminal original petition is allowed, and the proceedings in C.C.No. 266 of 2004 on the file of the Judicial
Magistrate No. III, Erode, are quashed. Consequently, connected Crl.M.Ps. are closed.