M.Sundaram vs State Rep. By
2022 Latest Caselaw 15306 Mad

                                                                                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.

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.

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

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.

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

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

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

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