ORDER :

1. This Criminal Original Petition has been filed seeking orders to call for the records relating to S.T.C.No.3198 of 2018, pending on the file of the Court of Judicial Magistrate, Ambasamuthiram and quash the same.

2. The petitioner is the fourth accused. The respondent has lodged a private complaint against one Senthil and others arraying the petitioner as fourth accused, alleging that on 03.06.2017 at about 02.30p.m., he inspected one Murugan stores, that during the inspection, he suspected that a food item named as Flubbers Pudding Fruits flavoured may be an unsafe food and manufactured contrary to the rules and regulations of Food Safety and Standards Act (hereinafter referred as “the said Act”), collected the samples, that the said samples were sent for food analysis, that the Designated Officer, Tirunelveli received Food Analysis Report, dated 23.10.2017, with an opinion that the sample is unsafe, since the same contains added coloring matter tartrazine and carmoisine, which are not permitted in the food category and that after getting the permission from the Commissioner, Food Safety, this complaint was lodged and the case was taken on file in S.T.C.No.3198 of 2018, on the file of the Court of the Judicial Magistrate, Ambasamuthiram for the alleged offences under Sections 59(i) and 63 of the Food Safety and Standards Act, 2006.

3. Heard the learned Counsel for the petitioner and the learned Government Advocate (Crl.Side) appearing for the respondent and perused the materials placed on record.

4. The learned Counsel appearing for the petitioner would submit that as per Section 46(3) of the Food Safety and Standards Act, 2006, the sample received by the Food Analyst ought to have been analysed and the report should be sent within 14 days from the date of receipt of the samples, that though the Food Analyst has received the samples on 05.06.2017, he has analysed the samples only on 12.09.2017 and that thereby they have violated the mandatory provisions of the said Act. The learned Counsel would further submit that the petitioner is entitled to file an appeal against the report of the Food Analyst within 30 days by referring the sample to a referral lab for the second analysis, as per Section 46(4) of the said Act, that the Designated Officer has sought for sanction from the Commissioner of Food Safety for initiating the prosecution on 09.11.2017, but sent notice on 10.11.2017 to the petitioner for availing an opportunity for the second analysis and that therefore, the said notice was given only as an eye wash and as such, the prosecution launched, violating the statutory provisions, is liable to be quashed.

5. The learned Counsel for the petitioner would further submit that as per Section 77 of the said Act, the concerned Court has to take cognizance of the offence within a period of one year from the date of commission of the offence and that since the private complaint in the present case was filed on 13.11.2018, after the expiry of one year, the criminal prosecution is clearly barred by time and as such, the entire prosecution is liable to be quashed.

6. Before entering into further discussion, it is necessary to refer Section 42 of the Food Safety and Standards Act, 2006 and the same is extracted hereunder:

“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 d