JUDGMENT :

(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records in S.T.C.No.185 of 2017 pending on the file of Judicial Magistrate - 1, Dharmapuri and quash the same as far as the petitioner is concerned.)

This petition has been filed to quash a private complaint pending in S.T.C.No.185 of 2017 on the file of the Judicial Magistrate Court No.I, Dharmapuri under Sections 56 and 59 of the Food Safety and Standards Act, 2006 [hereinafter 'said Act'].

2. It is the case of the prosecution that on 26.05.2016 on the telephonic information from a shopkeeper from Dharmapuri Bus Stand that a lizard was found inside a Slice bottle, the Food Safety Officer visited the shop and collected the samples at 01.15pm as per the procedure and sent the same for analysis to the lab and on receipt of the report from the lab, it was found that the sample collected from the shop by the Food Safety Officer contained fungus. Therefore, the aforessaid private complaint was filed as against the accused. The present application has been filed by the manufacturer, who has been arrayed as A4, to quash the private complaint.

3. The main contention of the learned counsel for the petitioner is that the prosecution cannot be maintained in this case as the Food Safety Officer has not taken the sample as per law. Instead of four samples to be collected, it appears that he has collected only one sample and the report of the lab also clearly indicates that the bottle has not been properly sealed and closed and it was open at the time of receiving bottle in the lab. It is his further contention that Section 47 of the said Act mandates collection of four samples and an opportunity also to be given to the manufacturers for filing an appeal and also test the other samples from the laboratory, which has been totally violated in this case and no opportunity has been given. Therefore, the right of the appeal provided in the Act itself is taken away. There is a clear violation of not only Section 47, but also Sections 42 and 43 and Rules 2.4.5 and 2.4.6 of Food Safety and Standard Rules and hence, he prays for quashing of the complaint.

4. The learned Government Advocate (Crl.side) appearing for the respondent submitted that the samples were lifted on the complaint from the Shop owner that one lizard is found inside the bottle and therefore, the samples were collected from the shop and sent to the laboratory. It is his further submission that mere violation of procedure cannot be gone at this stage and it has to be decided only in the trial and hence, he prays for dismissal of the application.

5. I perused the entire material placed before this Court.

6. According to the Food Safety Officer, the sample is said to have been collected on 26.05.2016 from the Vaigai Coffee Bar at Sub-urban Bus Stand. The complaint indicates that he has collected sample, namely cool drinks meant for sale from the shop owner. It is relevant to note that the private complaint itself indicates that he collected only one sample. There is no indication that he has collected four samples as required under law, namely, under Section 47 of the said Act. Section 47 of the Act makes it clear that except in special cases as may be provided under Rules made under this Act, the Food Safety Officer has to divide the samples into four parts and mark and seal or fasten each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken and after taking such samples as per clause (c) send one of the parts for analysis to the Food Analyst under intimidation to the designated officer and remaining two parts to be sent to the designated officer for keeping in safe custody and sent the remaining part for analysis to the accredited laboratory under intimation to the designated officer. The above Section makes it very clear that the purpose of taking various samples is to give an opportunity to the manufacturer