Madras High Court
A.Rajappa vs The Food Safety Officer on 31 August, 2021
Crl.O.P(MD)No.8306 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.08.2021
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Crl.O.P.(MD).No.8306 of 2018
and
Crl.M.P(MD)No.3729 of 2018
1.A.Rajappa
2.S.Arumghaperumal
3.A.Subramanian ... Petitioners/Accused Nos.1 to 3
-vs-
The Food Safety Officer,
Nagercoil Block-II ... Respondent/Complainant
PRAYER : Criminal Original Petition is filed under Section 482 of
Criminal Procedure Code, to quash the proceedings in
S.T.C.No.135 of 2017 on the file of the Judicial Magistrate No.II,
Nagercoil.
For Petitioners : Mr.R.Parthiban
For Respondent : Mr.S.Antony Sahaya Prabahar
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in S.T.C.No.135 of 2017 on the file of the Judicial
Magistrate No.II, Nagercoil.
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Crl.O.P(MD)No.8306 of 2018
2.The learned counsel for the petitioners would state that the
petitioners are running grocery business in the name and style of
M/s.Subramanian at Nagercoil. On 22.10.2016, the respondent had taken
samples of Poppy (khas-khas), in a polythene bag, from the petitioners'
shop and had sent the same to the Food Analyst on the same day. As per
rule 2.4.1.7 of the Food Safety and Standards Rules, 2011, sample of
article of food for the purpose of analysis, shall be taken in a clean dry
bottle or jar or in other suitable container which shall be closed to
prevent leakage, evaporation or to avoid entrance of moisture in case of
dry substance and shall be carefully sealed. According to the learned
counsel, the said rule had not been followed while taking sample from
the petitioners' shop.
3.He would further state that a report was received from the Food
Analyst, stating that the sample conforms to the standards for the tests
carried out and specified for ''poppy'' under regulation 2.9.16(1) of Food
Safety and Standards (FPS & FA) Regulation 2011. Thereafter, the
respondent had sent the sample which was in the custody of the
Designated Officer, to the referral lab and the referral laboratory tested
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Crl.O.P(MD)No.8306 of 2018
the product from 03.03.2017 to 04.04.2017 after six months from taking
the sample and has given a report stating that the sample is ''unsafe'' as
defined under Section 3(1)(zz)(ix) & (xi) of the Food Safety and
Standards Act, 2006, as it does not conform to the standards laid down
for poppy(khas-khas) under the provisions of the Food Safety and
Standards (Food products standards and Food Additives) Regulations,
2011 and it is further stated that the sample was infested with live and
dead insects and having musty odour. Based on the report of the referral
laboratory, criminal proceedings have been initiated against the
petitioners in STC.No.135 of 2017 before the Judicial Magistrate No.II,
Nagercoil, under the provisions of the Food Safety and Standards Act,
2006. Hence, this criminal original petition.
4.The learned counsel for the petitioners would contend that while
taking or referring the sample to the laboratory, the respondent had not
stated that the sample was infested with insects and it was also not stated
in the report of the Food Analyst. He would further state that as per rule
2.4.6.2 of the Food Safety and Standards Rules, 2011, the designated
officer shall forward one part of the sample, under appropriate condition,
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Crl.O.P(MD)No.8306 of 2018
as specified for the product including transport, to retain the integrity of
the sample. According to the learned counsel, the respondent had
allowed the sample to deteriorate and sent the same to laboratory. Thus,
he would state that there is non observance of the mandatory provisions
in taking samples and he would also state that if the statute prescribes a
thing to be done in a particular manner, it should be done in that way and
not in any other manner. In support of his contentions, the learned
counsel for the petitioners would rely on the judgment in Crl.A.No.178
of 2013 dated 07.01.2015 and would pray for quashing of the criminal
proceedings.
5.The learned Government Advocate(Criminal Side) appearing for
the respondent would state that only after strictly following the
mandatory provisions, criminal proceedings have been initiated against
the petitioners under the provisions of the Food Safety and Standards
Act, 2006 and therefore, the interference of this Court is not necessary.
6.Heard the learned counsel for the petitioners as well as the
learned Government Advocate(Criminal Side) appearing for the
respondent.
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Crl.O.P(MD)No.8306 of 2018
7.Perusal of record shows that after the sample was taken from the
petitioners' shop on 22.10.2016, it was sent to the Food Analyst on the
same day and the report of the Food Analyst dated 08.11.2016 was
received by the respondent on 10.11.2016, stating that the sample
conforms to the standards for the tests carried out and specified for
''poppy'' under regulation 2.9.16(1) of Food Safety and Standards (FPS &
FA) Regulations, 2011. Thereafter, the respondent had sent the sample to
the referral lab which tested the sample from 03.03.2017 to 04.04.2017
and has given a report stating that the sample is unsafe and infested with
live and dead insects and having musty odour. As per rule 2.4.6.2 of the
Food Safety and Standards Rules, 2011, the designated officer shall
forward one part of the sample under appropriate condition as specified
for the product including transport, to retain the integrity of the sample.
As rightly contended by the learned counsel for the petitioners, the said
rule is violated and in this case, the respondent had sent the sample to the
referral lab and while taking the sample and while referring the sample to
referral laboratory, the respondent had not stated that the sample was
infested with insects.
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Crl.O.P(MD)No.8306 of 2018
8.In the judgment relied on by the learned counsel for the
petitioners, in Madras Fertilizers Ltd., vs. The State of Tamil
Nadu(Criminal Appeal No.178 of 2013, dated 07.01.2015), it has been
held as follows:-
''8.6.Similar question arose for consideration in
Kadarkarai & others v. State by Agricultural Officer, Fertilizer
Inspector, Office of the Assistant Director of Agriculture,
Sattur, Kamarajar District reported in 2000 (1) MWN (Cr.) 199
and in paragraph 14, it was noted that P.W.1 did not use any
instruments for taking the samples and it is a material defect. In
paragraph 18, it is held that non-observance of mandatory
provisions in taking the samples by the complainant and the
suspicion with regard to taking samples from the nature of the
bag and the corrections carried out in Exs.P.2 and D.1, all these
things throw considerable doubt with regard to the genuineness
of the complainant's case and citing the said reasons, the
conviction and sentence passed in the said case were set aside
and the appeals were allowed.
12.It is well settled position of law that if the statute
prescribed a thing to be done in a particular manner, it should
be done in that way and not in any other manner.''
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Crl.O.P(MD)No.8306 of 2018
9.In my considered opinion, the procedure contemplated for taking
sample and the mandate of sending the sample in the very same
condition, is to be strictly followed and any deviation from the same,
would cause great hardship to the petitioners. Since there is a deviation
from the procedure contemplated under the Food Safety and Standards
Act, 2006, the criminal proceedings initiated against the petitioners are
liable to be quashed.
10.Accordingly, the Criminal Original Petition is allowed and the
charge sheet filed in S.T.C.No.135 of 2017 on the file of the learned
Judicial Magistrate No.II, Nagercoil, is hereby quashed. Consequently,
the connected Criminal Miscellaneous Petition is closed.
31.08.2021
Index : Yes / No
Internet : Yes / No
bala/pm
https://www.mhc.tn.gov.in/judis/
Crl.O.P(MD)No.8306 of 2018
J.NISHA BANU, J.
bala/pm
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the advocate /
litigant concerned.
To
1.The Judicial Magistrate No.II,
Nagercoil.
2.The Sub Inspector of Police,
Vellichanthai Police Station,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
ORDER MADE IN
Crl.O.P.(MD) No.8306 of 2018
DATED : 31.08.2021
https://www.mhc.tn.gov.in/judis/
