ORDER :

M. Satyanarayana Murthy, J.

1. This petition under Section 482 of Criminal Procedure Code (for short 'Cr.P.C.') is filed to quash the order dated 31.10.2012, passed in Crl. M.P. No. 1247 of 2012 in CC No. 153 of 2011 by Judicial Magistrate of First Class, Pathapatnam, Srikakulam District.

2. The 2nd respondent/accused in the above calendar case, filed petition under Section 20-A of Prevention of Food Adulteration Act, 1954 (for short 'the Act'), alleging that he is facing charge for the offence under Section 16(1-A)(i) of the Act and it is posted for trial. The basis for charge against this petitioner is lifting samples by the listed Witness No. 1 S. Ghouse Mohiddin, Food Inspector, Division-I, Srikakulam District for analysis and on examination, the analyst opined that the sample was adulterated and thus, committed the offences punishable under Sections 7(1) and 2(i)(a)(j) of the Act read with Rule 29 of P.F.A. Rules, 1955. The petitioner further contended that the commodity lifted for sample by LW 1, S. Ghouse Mohiddin, Food Inspector, Division-I, Srikakulam District is Green Gram Dhall, which is a part of commodity, the petitioner purchased from dealer, M/s. Vusirikala Nataraju & Co., 8-3-30, Kolla Bazaar, Vizianagaram, vide cash receipt/Invoice No. 07731/dated 27.8.2008 and the same is annexed to the petition.

3. It is further contended that the Green Gram Dhall commodity is purchased from the above dealer/wholesaler against valid receipt/invoice and properly stored, the alleged sample in question is in the same state, as purchased from the dealer. The particulars such as name and address, bill and quantity, price etc., and the particulars of dealer/distributor for the Green Gram Dhall, commodity in question was disclosed to the Food Inspector and furnished the said particulars also. But the Inspector did not take any steps or action against the said dealer. When the petitioner asked as to the action not taken against the dealer, the Inspector replied that since the original cash receipt/invoice was not produced at the early stage, no action was taken against the dealer.

4. It is further contended that since the original cash receipt/invoice with regard to the Green Gram Dhall in question was not traced at the earlier stage, it was not produced before the Inspector and the same was traced recently and thereby the dealer/wholesaler is liable for punishment in view of exemption under Section 19(2) of the Act and requested to implead the said M/s. Vusirikala Nataraju & Co., 8-3-30, Kolla Bazaar, Vizianagaram as 2nd accused in CC No. 153 of 2011.

5. The complainant filed counter, denying the material allegations, while admitting that the Food Inspector, S. Ghouse Mohiddin, Division-I, Srikakulam District, lifted the sample, sent the sample to analyst and on analysis found that it was adulterated. After institution of prosecution and while the matter is posted for trial, submitting an invoice of purchase of the said sample stock, cannot be treated as a valid proof, the adulterated sample was drawn from a open gunny bag of 50 Kgs. capacity having approximately 25 Kgs. of sample stock. However though the petitioner submitted alleged purchase bill, attributing liability to the supplier, it cannot be accepted that the sample has drawn from the sealed gunny bag. It is further contended that either the distributor or the supplier or the manufacturer, if supplied the commodity is in a sealed container to the retailer and the sample was drawn duly unsealing the sealed container, then only liability can be fastened against the distributor/wholesaler/manufacturer. But in the present case, the sample was lifted from gunny bag of 50 Kgs. capacity, containing 25 Kgs. of Green Gram Dhall. Therefore, the said proposed accused cannot be impleaded as 2nd accused in the calendar case and prayed for dismissal of the petition.

6. Upon hearing argument of both the Counsel, the learned Magistrate passed order dated 31.10.2012, ordering summons to M