Madras High Court

T.Murukappan vs R.Chandrasekaran on 24 August, 2023

                                                                     Crl.O.P(MD).No.14452 of 2020

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              Dated : 24.08.2023

                                                       CORAM:

                                  THE HONOURABLE MR. JUSTICE P. DHANABAL
                                           Crl.O.P(MD).No.14452 of 2020
                                                       and
                                       Crl.M.P.(MD)Nos.6777 and 6778 of 2020


                 T.Murukappan
                 2.Star Agri Warehousing &
                   Collateral Management Ltd.,
                   Rep. by T.Murukappan (State Head),
                   (Incorrectly mentioned in the Private Complaint as M/s. State Head
                   State Agri Ware Housing Collateral Management Ltd.)
                   2nd Floor B Wings littoral Chamber,
                   Near, Marol Metro Station,
                   Manohnaka,
                   Mumbai – 400069.                                     ...Petitioners

                                                  Vs

                 R.Chandrasekaran,
                 Food Safety Officer,
                 Srivilliputtur Municipality and Union,
                 Virudhunagar District.                                   ...Respondent

                 PRAYER: Criminal Original Petition filed under Section 482 of the Code of
                 Criminal Procedure, praying this Court to call for the records pertaining to the
                 private complaint in S.T.C.No.13 of 2020 pending before the learned Judicial
                 Magistrate No.I, Rajapalayam, Virudhunagar District filed under Sections 3(1)
                 (zz)(ix) along with 51, 59(i) and 63 of Food Safety and Standards Act, 2006
                 and quash the same as illegal.

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                                                                       Crl.O.P(MD).No.14452 of 2020

                                  For Petitioners         : Mr.R.Anand, For Mr.J.Pandi Dorai
                                  For Respondent          : Mr.R.M.Anbunithi
                                                            Additional Public Prosecutor

                                                       ORDER

This petition is filed to quash private complaint in S.T.C.No.13 of 2020,

before the learned Judicial Magistrate No.I, Rajapalayam, Virudhunagar

District.

2.According to the petitioners, the respondent filed a private complaint

alleging that the petitioners stored unsafe and substandard goods at

A.Devendran Godown, 324 Vishnu Nagar, Kalangaperi Village, Rajapalayam

Taluk, Virthunagar District without getting license from the Food Safety

Department. After getting opinion from the food analyst, the respondent

forwarded the opinion to the Commissioner and after getting sanction from

the Commissioner, the impugned complaint was filed by the respondent under

Sections 52, 59(i) and 63 of Food Safety and Standards Act, 2006 (herein after

referred as 'Act'). The entire allegations are false and the petitioners did not

commit any offence as alleged by the respondent. In collateral management

service, the second petitioner company operates as bank appointed custodians

of stocks pledged by third party/borrowers kept in warehouses owned and

operated by third party/borrowers. Stocks are released upon instruction or

release order from the leading bank. The responsibility of stock upkeep, https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.14452 of 2020

maintenance, insurance and fumigation rest with the borrower and the bank.

As custodians, the company is responsible for providing timely information to

the bank regarding the condition of the stocks.

3.In this case, the bank had approached the second petitioner company

for availing financial facilities against the pledge of agricultural products in

the five godowns at Rajapalayam, Virudhunagar District. A request was made

by the bank officials to the second petitioner company for providing field

warehouses facilities regarding the goods contained in the warehouses at

Rajpalayam and the amounts has to be immediately disbursed against security

of the said goods. It was intimated that the finance facilities has to be granted

immediately to the said borrowers over the stock of pulses, which were placed

in the said warehouses and upon believing the assurances regarding the stock

as given by the bank officials, the custody of the said warehouses containing

the stock was obtained by the second petitioner company under the directions

of the said Bank by executing sub-lease with Siva, being the partner of Shree

Sharavana Traders and three other borrowers. The petitioners given complaint

before the Superintendent of Police but no action was taken.

4.Thereafter, the petitioners filed Crl.O.P.(MD)Nos.14413 and 14417 of

2017. Allowing the impleading petition, this Court transferred both the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.14452 of 2020

complaints to Economic Offences wing, CBI vide its order dated 15.11.2017.

Thereafter, Economic Offences Wing, took up the investigation and

warehouses were sealed and the custody was placed with the EOW-CBI. This

was happened in December 2017. Since the goods were perishable in nature,

the said stocks had to be auctioned and therefore, the said EOW-CBI on

27.12.2018 sent an e-mail to the respondent to find out the present nature of

the stocks. The stocks were pledged to the said bank in the year 2016 for a

period of 11 months and due to the foisting of the criminal cases in the year

2017 the stocks were placed in the custody of EOW.

5.The respondent took sample of mazoor dal weighing four kgs and the

sample was couriered to food Analyst on 28.12.2019. The Food Analyst,

Thanjavur report was made on 11.01.2019 wherein the goods were declared as

unsafe and substandard foods. Thereafter, the District Food Safety Officer,

Virudhunagar has sent recommendation to the Commissioner, Food Safety and

Standards to initiate prosecution against the petitioners through Whatsapp

dated 26.02.2019. The said recommendation has not been made within

fourteen days and it has been made with a delay of 25 days without following

mandatory provision under Section 42(3) of the Act. Further under Section

42(2) of the Act, the Food Analyst has to send the analysis report mentioning

the method of sampling and analysis within a period of fourteen days to the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.14452 of 2020

designated officer. The sample was sent on 28.12.2018 however the analysis

report was received by the Food safety Officer only on 18.01.2019 with a

delay of seven days. Therefore, it amounts to abuse of process of law, if the

respondent prosecuted against the petitioner. Hence, the charge sheet in

S.T.C.No.13 of 2020 is liable to be quashed.

6.No counter has been filed on the side of the respondent.

7.The learned counsel appearing for the petitioners would contend that

the mandatory provision under Section 42(3) of the Act has not been followed

in this case. The allegations made in the complaint is that even they are taken

at their face value and accepted in their entirely do not prima facie constitute

any offence or make out a case against the accused. The Food Analyst,

Thanjavur report was made on 11.01.2019 and the report was received by the

respondent on 18.01.2019. Immediately after 14 days, the respondent has to

sent recommendation for obtaining sanction but in this case, the request was

sent on 26.02.2019. Therefore, there is a delay of 25 days. As per Section

42(3) of the Act, the Designated Officer after scrutiny of the report of Food

Analyst shall decide as to whether the contravention is punishable with

imprisonment or fine only and in the case of contravention punishable with

imprisonment, he shall send his recommendations within fourteen days to the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.14452 of 2020

Commissioner of Food Safety for sanctioning prosecution. In this case, the

above procedure has not been followed, thereby, the pending case proceedings

before the trial Court are liable to be quashed.

8.To support his contention, he relied on the judgment of this Court in

the cases of (I) M.Mahadevan v. The Food Safety Officer in Crl.O.P.No.

25484 of 2016 and (ii)A.R.Khader v. The Food Safety Officer in Crl.O.P.No.

27584 of 2016.

9.The learned Additional Public Prosecutor appearing for the

respondent would contend that the respondent has filed complaint before the

Judicial Magistrate Court by following all the procedures and thereby, the trial

Court has taken cognizance and proceed the case further. The respondent took

sample on 28.12.2019 and the same was sent to Laboratories on the same date

itself i.e., on 28.12.2019. The Food Analyst, Thanjavur report was made reads

on 11.01.2019. Thereafter, request for sanction was obtained on 26.02.2019

and then the trial Court has taken cognizance and the petitioner has to face the

trial and the arguments of the petitioner can be put forth before the trial Court

and the petition is liable to be dismissed.

10.This Court heard both sides and perused the materials available on https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.14452 of 2020

records.

11.It is admitted that based on the complaint given by the second

respondent, the learned Magistrate has taken cognizance in S.T.C.No.13 of

2020. The main contention of the petitioner is that the mandatory provision

under Section 42(3) of the Act has not been complied with and the Food

Analyst, Thanjavur report was made on 11.01.2019 and the same was received

on 18.01.2019. Immediately after 14 days, the respondent ought to have sent

recommendation for obtaining sanction but in this case, the request was sent

on 26.02.2019 i.e., after the lapse of mandatory period of 14 days. Therefore,

mandatory procedures as mandatory by the Act have not been followed by the

respondent.

12.The learned counsel appearing for the petitioners relied on the

judgments of this Court in the cases of (I) M.Mahadevan v. The Food Safety

Officer in Crl.O.P.No.25484 of 2016 and (ii)A.R.Khader v. The Food Safety

Officer in Crl.O.P.No.27584 of 2016, wherein this Court held that :-

“6. Learned Senior Counsel also relied upon the judgment of this Court passed in Crl.O.P.No.7242 of 2011 dated 28.03.2017, wherein, in an identical circumstances, the learned Judge has held as follows :

5.In this regard, the learned counsel for the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.14452 of 2020

petitioners/accused also relied upon the decision of this Court reported in 2005-2-L.W. (Crl.) 598 [C.Suresh & Others Vs. The State, etc], and submitted that in an identical situation, on the ground of delay of 10 months in sending the notice under Section 13(2) of the Act along with the report, this Court quashed the complaint therein stating that by that time, the milk sample would have become decomposed. The relevant portion in the said judgment reads as follows :

"7.In the instant case, the sample of toned milk was taken on 22.07.2003 and despatched to the Government Analyst on 23.07.2003. Pursuant to an information that the toned milk food sample was broken in transit, the second portion of the sample was sent, and on analysis, a report was received on 07.08.2003.

The same was received by the Local Health Authority on 28.08.2003. But, the written consent for launching the prosecution was received by the Local Health Authority on 23.01.2004, and the same was received by the Food Inspector on 30.01.2004. The complaint filed on 31.03.2004 was returned, and the same was re-submitted on 23.04.2004. The same was taken on file on 13.05.2004. It would be abundantly clear that the sample of toned milk was taken on 22.07.2003, the Food Inspector presented the complaint on 31.03.2004, and after it was taken on file on 13.05.2004, notice under Section 13(2) was issued to the petitioners on 18.05.2004. Thus, it would be quite evident that a notice along with the report of the analyst was sent on 18.5.2004, after an interval of nearly 10 months. By that time, the milk sample would have become decomposed. Thus, the right of the

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Crl.O.P(MD).No.14452 of 2020

accused available under Section 13(2) has been frustrated, due to the inordinate delay and inaction on the part of the prosecution."

The dictum laid down in the above said decision would squarely apply to the facts of the present case also. In the case on hand also, there is an inordinate delay of 1 year 8 months in lodging the complaint. Further, as pointed by the learned counsel for the petitioner, even if the milk sample would have been sent for analysis, by that time, it would have become decomposed. The petitioners/accused have been deprived of their right to have the analysis report from the Central Food Laboratory as provided under Section 13(2) of the Prevention of Food Adulteration Act. Considering the facts and circumstances of the case, I am of the opinion that there is no useful purpose is going to be served if the trial is allowed to continue. It is a fit case to quash the complaint.

The above dictum squarely applicable to the facts of the case.”

13.Considering the aforesaid facts and circumstances of the case and in

view of the above said judgments of this Court, the mandatory provision

under Section 42(3) of the Act has not been followed and thereby, the

continuation of the proceedings is abuse of process of law. Therefore, the

charge sheet is liable to be quashed.

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Crl.O.P(MD).No.14452 of 2020

P. DHANABAL,J.

Mrn

14.In the result, the Criminal Original Petition is allowed and the charge

sheet in S.T.C.No.13 of 2020 is hereby quashed. Consequently, connected