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Judgment
R. Mala, J.—The Petitioners approach this Court with a prayer to call for the records in connection with S.T.C. No. 6 of 2009, on the file
of the learned Judicial Magistrate No. 1, Tirunelveli and to quash the same.
The case of the Petitioners is as follows:
The Petitioners 2 to 4 are running a Departmental Store in the name and style of ''Margin Free Market'' and the 1st Petitioner is the Working
Manager. On 27.08.2007, the said store was inspected by the Respondent and he had taken the sample of ''Mysore Doll Pocket'' and sent the
same to the Public Analyst on 31.08.2007 and he has received a report from the Public Analyst on 28.09.2007 stating that the sample is
misbranded as it is not labelled in accordance with the requirements of Rule 32(a) (e) and (f) of the P.F.A. Rules 1955 and hence, the complainant
registered a case against the Petitioners for the offence punishable u/s 16(1)(a)(i) read with 7(ii) and 2(ix) (k) P.F.A. Act 1955 and Rule 32(1)(e)
and (f) P.F.A Rules 1955 and the complaint was taken on file in S.T.C. No. 6 of 2009 on the file of the Judicial Magistrate No. 1, Tirunelveli.
Hence, the Petitioners approached this Court to quash the complaint filed against them.
The learned Counsel appearing for the Petitioners would submit that the complaint has been filed on 27.08.2009, but, 13(2) notice has been
issued only on 31.12.2009 and hence, the Petitioner''s choice for sending the sample to the Public Analyst has been curtailed; moreover, there is
no evidence to show that how and in what manner, the sample is misbranded; the complaint suffers from procedural illegality, because it has been
filed after a lapse of 2 years from the date of receipt of Public analyst''s report and thus he prayed for quashing the complaint in S.T.C. No. 6 of
2009 on the file of the learned Judicial Magistrate No. 1, Tirunelveli. To substantiate his case, he lied upon the following decisions:
(2010) 2 SCC 270 (Girishbhai Dahyabhai Shah v. C.C. Jani and Anr.)
(2009) 1 MLJ 843 (Bhushan Prasad, Manager-Quality and Regulatory Operations of the general Mills India Private Ltd., Mumbai and Anr. v.
K. Ravichander)
(2008) 3 MLJ 779 (Baskar Vembu Indian Inhabitant, Nominee of Cadbury India Ltd., Mylapore, Chennai - 600 004 and Anr. v. State of
Tamil Nadu at the instance of K. Jebaraja Shobana Kumar, Food Inspector, Food and Drugs, Administration, Tamil Nadu)
Heard the learned Government Advocate (Criminal side) and perused the materials available on records.
Admittedly, the sample taken by the complainant is on 27.08.2007 and the same was sent to Public Analyst on 31.08.2007 and the analyst
report has been received on 28.09.2007. But the complaint has been filed on 27.08.2009 and thereafter only, 13(2) notice has been issued on
31.12.2009 after two years from the analysis report received by the complainant stating that if it is so desired, they 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. But, here, in the case on hand, the notice has been issued after 2 years from the date
of receipt of notice and hence, the Petitioner''s choice to send another portion of the product to the Public Analyst is curtailed.
In such circumstances, it is appropriate to consider the decisions relied upon by the learned Counsel appearing for the Petitioner. In (2010) 2
SCC 270 (Girishbhai Dahyabhai Shah v. C.C. Jani and Anr.), wherein, the Apex Court has held as follows:
Sections 13(1) and (2) of the Prevention of Food Adulteration Act, 1954, read as follows:
Report of Public Analyst. - (1) The Public Analyst shall deliver, in such form as may be prescribed, a report to the Local (health) Authority of
the result of the analysis of any article of food submitted to him for analysis.
(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 person 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 14-A, 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.
It will be apparent from the above, that only on receipt of the report of the Public Analyst under Sub-section (1) to the effect that the article of
food is adulterated, can a prosecution be launched and a copy of the report could be supplied to the accused, Sub-section (2) also indicates that
on receipt of the report the accused could, if he so desired, make an application to the Court within a period of ten days from the date of the
receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food
Laboratory.
In other words, in the instant case, the Appellant was prevented from applying for analysis of the second sample before 17.07.1989, by which
time the second sample of curd had deteriorated and was not capable of being analysed as was found in Ghisa Ram referred, to above.
In (2009) 1 MLJ 843 (Bhushan Prasad, Manager-Quality and Regulatory Operations of the general Mills India Private Ltd., Mumbai and Anr. v.
K. Ravichander), this Court has held as follows:
The reading of Section 13(2) of the Prevention of Food Adulteration Act 1954 makes it clear that on receipt of the Analyst report, the Local
Health Authority shall after the institution of prosecution forward the copy of the analyst report to the accused concerned and to inform such
persons that they may make an application before the Court within 10 days from the date of receipt of the copy of the report to get the other
portion of the sample of article to be analysed by Central Food Laboratory. But in the instant case, it is seen that the date of manufacture of the
sample is 15.10.2003, the date of expiry of the article is dated 15.02.2004, the Food Inspector obtained sanction for prosecution on 12.11.2004
and the complaint was filed only on 10.12.2004 and as such the complaint itself was filed after the expiry of the product, viz., sample as early as on
15.02.2004 and as such the sample has become unfit for further analysis by the Central Food Laboratory and thereby the Petitioners have lost
their valuable right to get the sample examined by the Central Food Laboratory which resulted in grave prejudice to the accused.
In (2008) 3 MLJ 779 (Baskar Vembu, Indian Inhabitant, Nominee of Cadbury India Ltd., Mylapore, Chennai - 600 004 and Anr. v. State of
Tamil Nadu at the instance of K. Jebaraja Shobana Kumar, Food Inspector, Food and Drugs, Administration, Tamil Nadu), this Court has held as
follows:
In the present case, even if the stand taken by the Respondent is accepted that the samples were drawn in the prescribed manner, there is a gross
failure on their part in launching the prosecution instantly as enunciated in the Act. Notice u/s 13(2) of Act came to be served on the Petitioners
only on 04.10.2005 and by that time, food sample had become so decomposed and totally unfit for analysis. Strikingly, there is no explanation
forthcoming on the part of the prosecution for such serious lapses. The valuable right of the accused/Petitioners is taken away. In such
circumstances, the Court has no other option except to quash the entire proceedings pending against the Petitioners before the trial Court.
In G. Sivakumar and Ors. v. Food Inspector, City Municipal Corporation of Coimbatore reported in (2009) 2 MLJ 1035 : 2009 1 L.W. (Crl.)
344, wherein, this Court has held as follows;
Admittedly, in this case, the delay between the launching of prosecution and forwarding of form III was beyond six months and is hit by Rule 9-B
of the Prevention of Food Adulteration Rules. That apart, the report of the Public Analyst is dated 12.09.2001 and the prosecution came to be
launched on 07.09.2004 when the complaint was preferred and it was taken on file on 16.09.2004. On 21.09.2004 the Petitioners/accused
received notice and if they calculate the said period, the prosecution has been launched after a period of nearly 3 years.
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 analyzed.
As per the above said citations, because of the delay in issuing 13(2) notice, the Petitioners were prevented from sending the sample for second
analysis within the time prescribed. In such circumstances, I am of the opinion that all the citations are squarely applicable to the facts of the present
case.
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 matters where they were prosecuted for the offence of misbranding
under the provisions of the prevention of Food Adulteration Act.
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 28.09.2001. 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.
A perusal of the Public Analyst''s report would reveal that the Public Analyst has simply stated that the sample was misbranded since it is not
labelled in accordance with the requirements of Rule 32 (a)(e) and (f) of the 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.
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.
In fine, the criminal original petition is allowed and the proceedings in S.T.C. No. 6 of 2009 pending on the file of the learned Judicial
Magistrate No. I, Tirunelveli, are quashed. Consequently, connected miscellaneous petitions are closed.