BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/08/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition(MD) No.7988 of 2010 and M.P.(MD) Nos.1 and 2 of 2010 1.A.Eswaramoorthy 2.TPSH.Partheeban Ram Sait, 3.P.Prasanthi 4.J.D.I.Rajasekar 5.Margin Free Market Pvt. Ltd., Rep. by TPSH.Partheeban Ram Sait 93, Tiruchendur Road, Palayamkottai. .. Petitioners (R5 is impleaded vide order dated 02.08.2010 made in M.P.No.3 of 2010) vs The Food Inspector, Tirunelveli Municipal Corporation, Tirunelveli, .. Respondent Prayer Criminal Original Petition filed under Section 482 of Cr.P.C. 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. !For petitioners ... Mr.V.Ramajagadeesan ^For Respondent ... Mr.R.M.Anbunithi G.A., (Crl. Side) :ORDER
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.
2.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 under Section 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.
3.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:
1. (2010) 2 Supreme Court Cases (Cri) 270 (Girishbhai Dahyabhai Shah Vs.
C.C.Jani and another)
2.(2009) 1 MLJ (Crl) 843 (Bhushan Prasad, Manager-Quality and Regulatory
Operations of the general Mills India Private Ltd., Mumbai and Another Vs.
K.Ravichander)
3.(2008) 3 MLJ (Crl) 779 (Baskar Vembu, Indian Inhabitant, Nominee of
Cadbury India Ltd., Mylapore, Chennai – 600 004 and Another Vs. State of Tamil
Nadu at the instance of K.Jebaraja Shobana Kumar, Food Inspector, Food & Drugs,
Administration, Tamil Nadu)
4.Heard the learned Government Advocate (Criminal side) and perused the
materials available on records.
5.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 on27.08.2009 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.
6.In such circumstances, it is appropriate to consider the decisions
relied upon by the learned counsel appearing for the petitioner. In (2010) 2
Supreme Court Cases (Cri) 270 (Girishbhai Dahyabhai Shah Vs. C.C.Jani and
another), wherein, the Apex Court has held as follows:
“7.Sections 13(1) and (2) of the Prevention of Food Adulteration Act,
1954, read as follows:
13.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 under Section
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.”
8.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.
9.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 (Crl) 843 (Bhushan Prasad, Manager-Quality and Regulatory
Operations of the general Mills India Private Ltd., Mumbai and Another Vs.
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 (Crl) 779 (Baskar Vembu, Indian Inhabitant, Nominee of Cadbury
India Ltd., Mylapore, Chennai – 600 004 and Another Vs. State of Tamil Nadu at
the instance of K.Jebaraja Shobana Kumar, Food Inspector, Food & 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 under Section 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 Others Vs. Food Inspector, City Municipal Corporation of
Coimbatore reported in (2009) 2 MLJ (Crl) 1035, 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.”
7.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.
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 matters 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 28.09.2001. 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.”
9.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.
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.
11.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.
arul
To
1.The Food Inspector,
Tirunelveli Municipal Corporation,
Tirunelveli,
Tirunelveli District.
2.The Judicial Magistrate No.1,
Tirunelveli.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.