Thangamani v. Staterep. By MurugaThe Food Inspectorcity Municipal CorporationCoimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.10.2007CORAMTHE HONOURABLE MR. JUSTICE K.N. BASHACrl.O.P.No.9811 of 2006and Crl.M.P.Nos.2548 and 2549 of 2006Thangamani... PetitionerVsStaterep. By MurugaThe Food Inspectorcity Municipal CorporationCoimbatore ... Respondent Criminal Original Petition filed under Section 482 of theCode of Criminal Procedure to quash the proceedings in C.C.No.251of 2003 on the file of the learned Judicial Magistrate No.5,Coimbatore for alleged offences under Section 7(1) and 16(1)(a)(i)read with Sec 2(1a)(d) and (m) of the Prevention of FoodAdulteration Act, 1954. For Petitioner : Mr.R.John SathyanFor Respondent : Mr.I.Paul Noble Devakumar Govt.Advocate(Crl.Side)O R D E RLearned counsel for the petitioner submits that thepetitioner has come forward with this petition seeking for therelief of quashing the proceedings in C.C.No.251 of 2003 on thefile of the learned Judicial Magistrate No.5, Coimbatore foralleged offences under Section 7(1) and 16(1)(a)(i) read with Sec2(1a)(d) and (m) of the Prevention of Food Adulteration Act, 1954.2. Learned counsel for the petitioner submits that thepetitioner has been arrayed as A2 out of three accused. It iscontended by the learned counsel for the petitioner that thepetitioner has been implicated in this case only on the ground ofpetitioner being a licensee of the canteen namely, "M/s.LakshmiCanteen" and she has nothing to do with the day to day affairs ofthe canteen and she is not in-charge or business of the canteen.Learned counsel for the petitioner would also contend that therespondent failed to send notice under Form III as contemplated https://hcservices.ecourts.gov.in/hcservices/ under Section 13(2) of the Prevention of Food Adulteration Act,1954 and as such, the entire proceedings is liable to be quashedin view of the non-compliance of the mandatory requirement in thePrevention of Food Adulteration Act, 1954. Learned counsel alsoplaced reliance on the decision rendered by the Hon'ble Apex Courtin TULSI RAM VS STATE OF MADHYA PRADESH reported in AIR 1985 SCpage 299 wherein, it was held that "non compliance of Provisionsof Sec 13(2) vitiates the trial as it takes away the valuableright of the accused to have the sample analyzed by the CentralFood Laboratory".3. Per contra, learned Government Advocate (Criminal Side)contended that it is for the petitioner to prove that she is notin-charge and responsible for the conduct of the business at thetime of full fledged trial and the petitioner cannot take suchplea in the quash petition. It is also further contended by thelearned Government Advocate(Criminal Side) that the respondentshould be given an opportunity to establish that noticecontemplated under Section 13(2) of the Act was issued to thepetitioner herein at the time of full fledged trial before thelearned Magistrate and as such, this quash petition is notmaintainable and the same is liable to be dismissed. 4. I have carefully considered the rival contentions putforward by either side and also perused the impugned complaintfiled in this case and other materials available on record.5. The allegation of the complainant/respondent is to theeffect that a sample of sunflower oil was taken from the saidcanteen. It does not confirm to the standards prescribed underthe Prevention of Food Adulteration Act and Rules and as such thesame is adulterated, thereby the accused is said to have committedthe offence under Section 7(1) and 16(1)(a)(i) read with Sec 2(1a)(d) and (m) of the Prevention of Food Adulteration Act, 1954. Aperusal of the complaint discloses that the petitioner has beenimplicated only as a licensee of the canteen namely, LakshmiCanteen,and arrayed as A-2 out of three accused. The avermentsand allegations contained in the complaint makes it crystal clearthat only the third accused namely T.Anandakumar is responsibleand in-charge of the canteen and such averment is specificallymade in the complaint itself. It is needless to state that aperson cannot be implicated in a case like the instant case merelyon the ground of being a licensee and there should be specificaverment and allegation to the effect that such person also in-charge and responsible for the day to day affairs of the canteen. https://hcservices.ecourts.gov.in/hcservices/

6. As already pointed out, the entire perusal of thematerials available on record including the impugned complaintclearly shows that only the third accused is responsible and in-charge of the conduct of the business of the canteen and thepetitioner, who is arrayed as A2 has been implicated in this casemerely as licensee of such canteen. 7. The Hon'ble Apex Court held in MANIBAI AND ANOTHER VS THESTATE OF MAHARASHTRA reported in AIR 1974 SC page 434 that "For the sale of adulterated coconut oil by P, a co-license of the shop, his mother M, who was not in chargeof nor was she actually conducting the business at theshop, cannot be held liable merely because she was thelicensee of the shop. Even assuming that the businesswas owned by a firm or an association of individuals andM was a partner of the firm or a member of theassociation, M would not be liable for the sale underSection 17(1) as she was not in charge of, andresponsible for the conduct of the business."The above principle of law laid down by the Hon'ble Apex Court issquarely applicable to the facts of the instant case. Therefore,this court is of the considered view that the proceedingsinitiated against the petitioner in so far as the petitioner isconcerned is liable to be quashed on this sole ground. 8. Learned counsel for the petitioner also further pointedout that the respondent Food Inspector has not complied with themandatory requirements contemplated under Section 13(2) of thePrevention of Food Adulteration Act, 1954 by sending notice underForm III to the petitioner herein and as such even on this ground,the compliant is liable to be quashed. Learned counsel for thepetitioner also placed reliance on the decision of the Hon'bleApex Court in TULSI RAM VS STATE OF MADHYA PRADESH reported in AIR1985 SC 299.9 The Honourable Apex Court in the decision cited supra hascategorically held that "non compliance of Provisions of Sec 13(2)vitiates the trial as it takes away the valuable right of theaccused to have the sample analyzed by the Central FoodLaboratory. "10 In view of the above findings, this Court is constrainedto quash the proceedings in so far as the petitioner is concernedpending in C.C.No.251 of 2003 on the file of the learned JudicialMagistrate No.5, Coimbatore. As the case itself relates to theyear 2003, the learned Judicial Magistrate No.5, Coimbatore isdirected to expedite the trial as expeditiously as possible and https://hcservices.ecourts.gov.in/hcservices/ complete the same within a period of six months from the date ofreceipt of copy of this order. With the above direction, the Criminal Original Petition isallowed. Consequently, connected miscellaneous petitions areclosed.nvsriSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Judicial Magistrate, No.5, Coimbatore.2. Do Through The Chief Judicial Magistrate, Coimbatore.3.The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. R. Johes Sathyam, Advocate SR 63969VSV(CO)SR/7.11.2007 Crl.O.P.No.9811 of 2006