CRL.O.P.No.18585 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.09.2022
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.18585 of 2016
and
Crl.M.P.No.8729 of 2016
M.Sundaram
Nominee of Licensee
M/s.Aditya Birla Retail Private Ltd.,
(Formerly Trinethra Superretail Pvt. Ltd.),
No.30, Old No.17, Trustpuram 2nd Cross Street,
Kodambakkam,
Chennai – 600 024. ... Petitioner/A-2
Versus
State Rep. by
The Food Inspector,
Division No.126, Zone – VIII,
Corporation of Chennai,
Chennai. ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure to call for the records in pursuance to the case in
S.M.M.F.No.21 of 2011 on the file of XX Metropolitan Magistrate, Chennai
and quash the same as per se, illegal, erroneous and unsustainable.
For Petitioner : Mr.R.D.Ashok
For Respondent : Mr.C.Baskaran
Government Advocate (Crl. Side)
Page No.1 of 8
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.18585 of 2016
ORDER
This petition has been filed to call for the records pursuance to the case in S.M.M.F.No.21 of 2011 on the file of XX Metropolitan Magistrate, Chennai and quash the same.
2. The petitioner/A2 in S.M.M.F.No.21 of 2011, who is facing trial for the offence under Sections 7(ii) and 16(1)(a)(i) r/w Sec.(ix)(g) & (k) of the Prevention of Food Adulteration Act, 1954 and Rule 32(a)(3), 36(7)(a) & Rule 37 of the Prevention of Food Adulteration Rules before the learned Metropolitan Magistrate, Allikulam, Chennai, has filed this quash petition.
3. The gist of the complaint is that the respondent on 04.12.2009 at about 1.15 p.m., had inspected the More Supermarket Retail Ltd, Dr.Nair Road, T.Nagar, Chennai for the purpose of taking samples of Leo Coffee Pure Filter Coffee. During investigation, they found that 13 packets each weighing 200 grams of Leo Coffee Pure Filter Coffee powder displayed for the sale to the general public and having suspicious over the coffee powder, the respondent prepared Form-VI and thereafter collected 3 samples of Leo Coffee Pure Filter Coffee-200 gms packets and also paid the cost for the same. Page No.2 of 8 https://www.mhc.tn.gov.in/judis CRL.O.P.No.18585 of 2016 Thereafter, prepared Mahazar and sent one sample to the Food Analyst. On 18.01.2010, the Food Analyst sent a report stating that the sample is found to be misbranded, since it is not labelled in accordance with the requirements of Rule 32(a)(3), 36(7)(a) and Rule 37 of the Prevention of Food Adulteration Rule, 1955. The remaining two samples were handed over to the Local Health Authority, Zone-VIII, Corporation of Chennai. On 02.08.2010, the Local Health Authority, Zone-VIII sent the complete file to the Joint Director (PFA), seeking sanction for the prosecution and based on the order of the Joint Director (PFA) dated 10.02.2011, the present complaint has been initiated against the petitioner. It is submitted that after completing the procedure, on 21.06.2011, a complaint has been filed against the petitioner and other two accused. In this case, A1 is the sales person, A2/petitioner is the in-charge of More Supermarket and A3 is Manufacturer. Thereafter, the complaint was taken on file on 20.07.2011. As per Section 13(2) of the Prevention of Food Adulteration Act, petitioner/A2 was issued with notice along with the copy of the analysis report on 28.06.2011. Despite receipt of the report, the petitioner had not taken any steps to approach the concerned Court by filing appropriate petition to send a second part of the sample for analysis to the Central Laboratory, Calcutta.
Page No.3 of 8 https://www.mhc.tn.gov.in/judis CRL.O.P.No.18585 of 2016
4. The contention of the petitioner is that notice under Section 13(2) of the Act was issued without following the mandatory provisions of the Act. Notice has been served to the petitioner, from which, nothing can be inferred that the notice was issued for misbranding of the packages. According to the petitioner, the petitioner is only a store in-charge. As far a the More Super Market is concerned, they do not manufacture or prepare any coffee powder in their premises. It is the third accused, who manufactures and supplies the coffee powder in packed form. It is only displayed in the Super Market and nothing more. If there is any misbranding or packaging, it is for the manufacturer to answer to the same. He further submitted that the notice under Section 13(2) was given on 28.06.2011, whereas, the sample was taken on 04.12.2009, i.e., 1 ½ years after taking the sample. The shelf life of the product-coffee powder is only six months. The petitioner’s valuable right of sending the second sample to the Central Laboratory is now lost. Further, on going through the entire complaint, it is seen that there is no specific averment as to the nature and details of alleged misbranding except for the word 'sample is found to be misbranded'. What is the specification available in the label is not reproduced in the notice or in the complaint. Further in support of his Page No.4 of 8 https://www.mhc.tn.gov.in/judis CRL.O.P.No.18585 of 2016 contention, he relied on the judgment of the Hon'ble Apex Court in a case of Alkem Laboratories Limited vs. State of Madhya Pradesh and another reported in (2020) 20 SCC 174, wherein the Hon’ble Apex Court has held that the inordinate delay in instituting prosecution would result in denial of right under Section 13(2) of Prevention of Food Adulteration Act. Likewise, the procedures to be followed in case of misbranding is also dealt with in detail, which has not been followed in this case. He further submitted that the case against A1 and A3 has been quashed.
5. The respondent has filed counter and typed set of papers and submitted that on 04.12.2009, the respondent inspected the More Super Market Retail Ltd., Dr.Nair Road, T.Nagar, Chennai-17. In the presence of Manager of the store, the license copy and other company documents including the nomination copy were inspected. Later it was found that Leo Coffee Pure Filter Coffee-200 gms packets displayed for the sale to the general public. Suspecting those packets to be in violation of laws prescribed under the Prevention of Food Adulteration Act, 1954, with the permission of the Manager of the stores, the respondent took 3 samples of Leo Coffee Pure Filter Coffee-200 gms packets by following procedures vide Form VI. Page No.5 of 8 https://www.mhc.tn.gov.in/judis CRL.O.P.No.18585 of 2016 Thereafter, one part of the sample was sent to the public analyst, Corporation of Chennai and the remaining two parts of the sample were handed over to the Local Health Authority, Zone VIII, Corporation of Chennai. On 18.01.2010, the Food Analyst sent the report informing that the sample is found to be misbranded, since it is not labelled in accordance with the rules. It was further submitted that the Local Health Authority sent the complete file to the Joint Director (PFA), seeking sanction for prosecution and thereafter based on the order dated 10.02.2011, a complaint has been filed against the petitioner. The points now raised by the petitioner is factual in nature, which has to be decided during trial. The misbranding is of the physical features available in the package of the coffee powder. Further submitted that in this case notice under Section 13(2) of the Act has been followed properly and hence opposes for quash petition. However, fairly submitted that as regards A1 and A3, this Court has already quashed the proceedings against them.
6. On a perusal of materials it is seen that the samples in this case has been taken on 04.01.2009. Thereafter, analysis report has been received on 18.01.2010. The sanction has been obtained on 10.02.2011. The notice under Section 13(2) of the Prevention of Food Adulteration Act has been given with Page No.6 of 8 https://www.mhc.tn.gov.in/judis CRL.O.P.No.18585 of 2016 a delay of 1 ½ years, i.e. on 28.06.2011. The shelf life of the coffee powder is only 9 months, which is beyond the period of complaint. Even in the case of misbranding, the testing of food sample is required to actually find out the product contents. In this case, due to the delay, the valuable right of sending samples to the Central Laboratory is lost to the petitioner. Further, this Court had already quashed the proceedings against A1 and A3. In view of the same, this Court is inclined to quash the proceedings against the petitioner, since continuation of prosecution would amount to abuse of process of law.
7. Accordingly, this Criminal Original Petition is allowed and the proceedings in S.M.M.F.No.21 of 2011 on the file of XX Metropolitan Magistrate Court, Allikulam, Egmore, Chennai against the petitioner/A2 is hereby quashed. Consequently, connected miscellaneous petition is closed.
14.09.2022 Index: Yes/No Internet: Yes/No rsi Page No.7 of 8 https://www.mhc.tn.gov.in/judis CRL.O.P.No.18585 of 2016 M.NIRMAL KUMAR, J.
rsi To
1.The Food Inspector, Division No.126, Zone – VIII, Corporation of Chennai, Chennai.
2.The XX Metropolitan Magistrate, Allikulam, Egmore, Chennai.
3.The Public Prosecutor, High Court, Madras.
CRL.O.P.No.18585 of 2016 and Crl.M.P.No.8729 of 2016 14.09.2022 Page No.8 of 8 https://www.mhc.tn.gov.in/judis