A.T.Kannan vs The State Represented By
2021 Latest Caselaw 22472 Mad

                                                                                        Crl. O.P. No.7347 of 2017



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 Dated: 17.11.2021

                                                        CORAM

                                  THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                              Crl. O.P. No.7347 of 2017
                                                          &
                                               Crl.M.P.No5313of 2017


                     A.T.Kannan                                                   ...     Petitioner

                                                             Versus

                     The State represented by
                     P.Rajasekar,
                     Food Safety Officer,
                     Krishangiri Municipality (i/c),
                     Krishnagiri District – 635 001.                        ...           Respondents

                     PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C. to
                     call for the records and quash the prosecution in S.T.C.No.1935 of 2014 for
                     an offence under Section 59 of the Food Safety and standards Act, 32006


                             For Petitioner            ...     Mr.A.Ramesh
                                                               Senior Counsel
                                                               for Mr.Arun Kumar

                             For Respondent            ...     Mr.S.Vinoth Kumar
                                                               Government Advocate (Crl.side)

                     1/10


https://www.mhc.tn.gov.in/judis
                                                                                  Crl. O.P. No.7347 of 2017



                                                          ORDER

This petition has been filed to quash the proceedings initiated

under Sections 3(1)(zx) and 3(1)(zz)(v) of the Food Safety and Standards

Act, 2006 [hereinafter 'said Act'] and Regulation 2.4.2.1 of Food Safety and

Standards [Food Products Standards and Food Additives] and Regulations,

2011.

2. It is the case of the prosecution that on 12.11.2013, Food Safety

Officer lifted samples of Maida from the petitioner's premises and

thereafter,the samples were sent to analysis on 13.11.2013. The reports

were received on 25.11.2013 and it indicated that the food lifted from the

premises contained live weevils, dead worms and worm cocoons.

Thereafter, on 05.12.2013, the reports appears to have been served on the

petitioner. Immediately, a reply was sent by the petitioner stating that only

the expired food items were seized and not the food items meant for sale.

Thereafter, after completing the formalities, the Food Safety Officer has

filed a complaint before the trial Court for the offences under Section 59 of

the Food Safety and Standards Act, 2006. Though PW1 and PW3 were

https://www.mhc.tn.gov.in/judis Crl. O.P. No.7347 of 2017

examined before the trial Court, this application has been filed to quash the

proceedings.

3. Heard the learned Senior Counsel appearing on behalf of the counsel

on record for the petitioner and the learned Government Advocate

appearing on behalf of the respondent.

4. The learned Senior counsel appearing for the petitioner contended

that though the trial has commenced, the very launching of the prosecution

is barred under law and therefore, the petition under Section 482 Cr.P.C is

maintainable. To buttress his submission, he has placed reliance on the

judgments of the Apex Court in Thesima Begam and Another Vs. The

State of Tamil Nadu and Ors arising out of SLP (Crl.) No.3542 of 2018

and another case in Kamlesh Kumar Vs. State of Bihar and Another

reported in (2014) 2 SCC 424 and submitted that when the very filing of the

complaint and launching of the prosecution itself barred under law, the

Court can very well quash the entire proceedings and the parties need not

undergo the ordeal of the trial. The learned Senior counsel also submitted

that though the Commissioner has accorded sanction to launch the

prosecution on 18.06.2014, the complaint has been filed before the Judicial

https://www.mhc.tn.gov.in/judis Crl. O.P. No.7347 of 2017

Magistrate only on 24.12.2014, which is ex facie barred under law. It is his

further submission that it is not the case of the prosecution that the

Commissioner has accorded sanction to launch the prosecution within the

extended period of three years by giving reasons in writing and no such

sanction whatsoever has been accorded in this case. He further submitted

that proviso to Section 77 of said Act cannot be pressed into service in this

case and the complaint itself is barred by limitation. The learned Senior

counsel also contended that the company has not been made an accused as

per Section 66 of the said Act. Similarly, there is violation of the mandatory

provision contained in Section 42 of the said Act and that apart, learned

Judicial Magistrate has also not applied his mind while taking cognizance.

In routine manner, the complaint has been taken on file. Hence, learned

Senior counsel seeks to quash the proceedings on these grounds.

5. The learned Government Advocate (Crl.Side) submits that the

complaint has been filed on 24.12.2014 and the Commissioner has accorded

sanction to launch the prosecution on 18.06.2014. As the trial has already

commenced, the petition under Section 482 Cr.P.C cannot be maintained at

this stage.

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6. This Court perused the materials available on record. As indicated

above, lifting of the sample on 12.11.2013 is not disputed. The analysis

report dated 25.11.2013 is the basis for launching the complaint. It is

relevant to note that, whenever the sample is lifted for analysis, the

procedure contemplated under Section 42 of the Act, which deals with time

limit for sending the samples to the lab and also to send a recommendation

to file prosecution. On a perusal of the materials available on record, it

comes to light that no such procedure has been followed. Be that as it may,

as contended by the learned Senior counsel, the company has not been made

as an accused under Section 66 of said Act and only the partner has been

made as an accused. It is also one of the flaw in launching the prosecution.

It is also relevant to note that any prosecution under Food, Safety and

Standards Act ought to be launched within a period of one year as per

Section 77 of the said Act, though the proviso empowers the Commissioner

to launch the prosecution within the extended period of three years,

provided the Commissioner gives the reasons for the same in writing. The

prosecution can be launched within the extended period of three years from

the date of occurrence. In this case, it is pertinent to note that the

https://www.mhc.tn.gov.in/judis Crl. O.P. No.7347 of 2017

Commissioner accorded sanction on 18.06.2014 to launch the prosecution

within a period of one year. However, the complaint has been filed only on

23.12.2014, much beyond the period of one year and it has been taken on

file by the learned Magistrate on 24.12.2014. It is relevant to note that it is

not the case of the prosecution that the prosecution has been launched

pursuant to the proviso to Section 77 of the said Act. Though the proviso

empowers to extend the period of limitation on certain grounds, the

Commissioner in this case has not exercised the power empowered therein,

whereas the sanction was accorded to launch prosecution within one year.

That is why no reason whatsoever has been given for extending the period

of limitation. That being the case, the prosecution ought to have been

launched only after the sanction of the Commissioner of the Food and

Safety by recording his reasons in writing as per proviso to Section 77 of

the Act, which has not been done. Therefore, when the Commissioner has

not exercised his power and has not given any reason in writing to launch

the prosecution beyond the period of one year, any complaint filed beyond

the period of one year is barred under Law. Trial Court ought not to have

taken cognizance of the complaint after the period of limitation. Further no

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application whatsoever has been taken under Section 469 for condoning the

delay in filing the complaint. This Court is of the view that when the

procedure contemplated for launching a prosecution has not been followed,

the same cannot be ignored lightly.

7. Comply of mandatory provision prior to launching prosecution has

to be followed strictly. Therefore, the prosecution cannot maintain the

complaint beyond a period without following the strict procedure

contemplated under law. In such view of the matter, this Court is of the

view that the complaint is ex facie barred by limitation.

8. Yet another submission made by learned Government Advocate

(Crl.side) that, as the trial has already commenced, the Court cannot

exercise the power under Section 482 Cr.P.C, has no legs to stand and the

issue is no longer res integra as the Apex Court in Kamlesh Kumar Vs.

State of Bihar and another reported in (2014) 2 SCC 424 held that when

the complaint is barred under law even after the trail has commenced, the

Court can exercise power under Section 482 Cr.P.C. It is also relevant to

note that besides violation of Sections 42 and 47 of the Act, the very

complaint is filed beyond the period of limitation. However, the learned

https://www.mhc.tn.gov.in/judis Crl. O.P. No.7347 of 2017

Magistrate, without noticing the fact that complaint has been filed beyond

the period of limitation, has mechanically taken the complaint on file and

took cognizance. While taking cognizance of the complaint on file, the

learned Judicial Magistrate has to look into the provisions of the law and

find out whether the complaint is filed within a period of limitation as

provided in the special Statute, but that has not been done. Further, on

perusal of the very complaint and the seal it comes to light that learned

Magistrate has just affixed the seal as TOF', denoting only 'Taken on File'.

In a routine manner, the rubber stamp has been used mechanically to show

that the complaint was taken on file. That itself indicate that Judicial

Magistrate has not applied his mind while reading the complaint and

provision of law and has not come to a definite conclusion as to whether the

complaint is within the time or not. Such act of the learned Judicial

Magistrates have been condemned by this Court in various judgments.

Despite the same, judicial officers are using the rubber seal and taking

cognizance of the complaint without even verifying the period of limitation

or Statute. It is nothing but a clear abuse of process of law. Such an

attitude should be hereafter stopped by the Judicial Magistrates. Though

https://www.mhc.tn.gov.in/judis Crl. O.P. No.7347 of 2017

this Court has ample power to call for an explanation, this Court keeping in

view of the long duration of the period between the taking of cognizance

and now, is of the view that it will suffice to direct the Director, Tamil

Nadu State Judicial Academy to sensitize the Judicial Magistrates in this

regard during the regular training programme.

With the above observations, this petition is allowed and the case in

S.T.C.No.1935 of 2014 is quashed.

17.11.2021 gpa

To

1. The State represented by P.Rajasekar, Food Safety Officer, Krishangiri Municipality (i/c), Krishnagiri District – 635 001.

2. The Director Tamil Nadu State Judicial Academy Chennai

3. The Public Prosecutor Madras High Court Chennai - 104

https://www.mhc.tn.gov.in/judis Crl. O.P. No.7347 of 2017

N. SATHISH KUMAR, J

gpa

Crl. O.P. No.7347 of 2017 & Crl.M.P.No5313 of 2017

17.11.2021

https://www.mhc.tn.gov.in/judis