JUDGMENT :

(Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records in connection with entire case relating to the proceedings in C.C.No.885 of 2017, on the file of XVIII Metropolitan Magistrate, Saidapet and quash the same.)

This Criminal Original Petition has been filed to quash the proceedings in C.C.No.885 of 2017, pending on the file of XVIII Metropolitan Magistrate, Saidapet.

2. The final report has been filed by the Food Safety Officer for the offence punishable under sections 59(1) and 63 of the Food Safety and Standards Act, 2006.

3. The case of the prosecution is that on 26/9/2016, the Food Safety Officer lifted a sample of Dhaniya and sent the same to the analysis, the analysis report indicate that it is unsafe to use.

4. The main contention of the learned counsel for the petitioner is that the proviso under Sections 42 and 47 of the Food Safety and Standards Act (in short “Act”), 2006 has not been complied with. When the provisions which are mandatory to be complied, particularly, in respect of the penal action has been violated which has to be interpreted strictly and prosecution cannot be permitted to continue when the violation glaring.

5. The learned counsel for the petitioner mainly submitted that 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 Commissioner of Food Safety for sanctioning prosecution.”

6. From the above, it is made clear that the recommendation should be sent within a period of 14 days to the Commissioner of Food Safety, which is not done in this case. Similarly, it is the case that despite his request for second analysis, the sample has not been given to him. Therefore, it is a clear violation of Section 47 (4) of the Act and when the violation is writ large, the prosecution cannot be permitted.

7. Per contra, the learned counsel for the Government Advocate (Crl.Side) appearing for the respondent submitted that violations alleged is only technical in nature and the same cannot be decided at this stage .

8. On a perusal of the entire materials, there is no dispute that the samples of water were lifted on 26/9/2016. It is not in dispute that within 14 days, the sample was analysed. For proper appreciation, Section 42 of the Food Safety and Standards Act provides the procedure for launching prosecution, which reads as follows:

42. Procedure for launching prosecution: ~

(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis.

2. The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.

3. 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 Commissioner of Food Safety for sanctioning prosecution.”

9. Section 42(3) mandates that after receipt of the analysed report, Designated Officer has to send his recommendation within 14 days. However, the complaint itself indicate that no such procedure was followed and Section 47 (4) makes it mandatory that once an application is filed for second analysis, it is mandatory on the part of the Officers to provide the sample to get it analysed in another accredited lab which is a right provided by the Statute.

10. Admittedly, in this case such second sample has not been given to the complainant when he has the right to have a second sample analysed, which has been denied.