The prosecution should be launched promptly without causing undue delay, and the accused should not be denied the right to send another sample to the Central Food Laboratory for a second opinion.

The petitioners are Accused No. 2 and 3 in C.C.No.336 of 2004 on the file of the Learned Judicial Magistrate Court, Rasipuram, Namakkal District and they have come forward with this petition to quash the proceedings against them.

2. The respondent/complainant is the Food Inspector of Rasipuram Municipality he has lodged a complaint before the learned Magistrate concerned against M/s.Pepsico India Holdings Pvt. Ltd., the first Accused, the second Accused who is the Quality Control Manager of the 1st Accused Company and the third Accused who is an administrative officer of the first Accused Company for manufacturing, distributing and selling the adulterated "7 UP" drink to the public and the Food Inspector. In the complaint, it has been stated by the complainant that as per the powers conferred upon him, he inspected the godown of the accused suspecting adulteration and taken sample from a bottle containing 300 ml of 7 UP which was meant for sale. He purchased six bottles of 300 ml "7 UP" at a cost of Rs.61.74 from the accused and obtained receipt for the same. On the 6 bottles taken by him, divided the samples into three parts, each part containing of two bottles, and he sent one part of 7UP drink to the Public Analyst, Food Analysis Laboratory, Palayamkottai enclosing Form VII under Rule 17 of the Prevention of Food Adulteration Rules. After analysing the samples, the Public Analyst has opined that the sample is found to contain a foreign matter (A blue coloured wrapper of VCM into 50 paise freshner) which will affect the quality of the food and hence, it is not the quality demanded by the purchaser and it is to his prejudice. Thus, the sample is adulterated as per Section 2 (ia) (a) and (b) of Prevention of Food Adulteration Act, 1954. Thereafter, the respondent issued a notice to the petitioners on 06.06.2003 under Section 11 (1) (a) of Prevention of Food Adulteration Act r/w Rule 12 of the Prevention of Food Adulteration Rules. Thereafter, after obtaining sanction from the Joint Director of Public Health and Preventive Medicine, Chennai, the respondent preferred a complaint before the Judicial Magistrate, Rasipuram against the accused and it has been taken cognizance by the learned Judicial Magistrate, Rasipuram on 11.08.2004 in

C.C. No.336 of 2004.

3. The contention of the learned counsel appearing for the petitioners is that the samples has not been taken as per the law and further he contended that mandatory provisions under Section 13(2) of the Act as well as Rule 9-A of the Rules have not been complied with. Hence, he prays that the complaint has to be quashed.

4. The learned Additional Public Prosecutor appearing for the respondent contended that samples has been taken as per the provisions of law and hence he prays that the petition has to be dismissed.

5. From the perusal of the FIR it is seen that 6 bottles of "7 UP has been purchased and two samples have been taken from each three bottles and one such sample has been sent to the Public Analyst and report has been obtained, is not in dispute. As per the provisions of law out of 6 bottles of "7 UP", the complainant must have taken three samples after opening all the 6 bottles and after taken the three samples one such sample has to be sent to the Public Analyst for examination. But in this case the complainant has taken one sample from three bottles and other sample from other three bottles. Hence, I am of the view that the samples taken by the complainant is not in accordance with law.

6. The next contention of the learned counsel for the petitioners is that as per Section 13 (2) of the Prevention of Food Adulteration Act it is made it clear that after getting report from the Public Analyst the complainant has to issue notice to the accused informing about the result and then only the accused can make application before the Court within a period of 10 days from the date of receipt of the copy of the report to get the another sample of the article of f