ORDER :

[Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure to call for the records in STC No.363 of 2020 on the file of the Judicial Magistrate No.II, Chengalpattu and quash the same.]

1. This Criminal Original Petition has been preferred to quash the proceedings in STC No. 363 of 2020 pending on the file of the learned Judicial Magistrate No.II, Chengalpattu.

2. The petitioners are the accused 2 to 4 and the petitioners along with A1, were prosecuted for the alleged offences under Sec.59(1) and Sec.63 of the Food Safety and Standards Act-2006. The respondent has given a complaint by alleging that on 27.2.2019 at about 12.30pm., the respondent went on inspection to the shop owned by the first petitioner by name and style 'Kumaran Stores' and after informing him that he had taken samples of Flubbers Fruity Jelly Assorted Fruits Flavoured and the said food product has been manufactured by A4/M/S.Siva Foods and in which the petitioners 1 and 2 /A2 and A3 are the directors. After observing the guidelines contemplated in the Special Act, a part of the sample was taken and the same was sent for chemical analysis. On receiving the report that the food is unsafe for consumption since it contains synthetic colour agent lite Tartrazine and Benzoic acid, the complaint has been given.

3. Heard the submissions made by the learned counsel on either side and perused the materials available on record.

4. The learned counsel for the petitioners submitted that despite the sample was taken on 27.01.2019 the report was obtained at a belated stage on 24.09.2019; although the petitioner raised his objection, without considering the request, the complaint has been filed in a pre-matured manner. Since the materials available on record shows that the mandatory procedure contemplated under the Act is not complied and much prejudice is caused to the petitioner on that ground alone the case should be quashed against the petitioners 2 to 4.

5. The learned Government Advocate (crl.side) for the first respondent submitted that the food analysis report has made it clear that the food is unsafe for consumption due to the presence of the excess colour agents. Further according to Sec.46(4) it is the discretion of the designated officer to refer the matter to food laboratory if he is satisfied. In fact the first accused had stated on receiving notice after the analysis report that he did not file any appeal immediately. The respondent has filed the complaint after complying the due procedure.

6. The records would show that the respondent had taken the sample by suspecting that it is unsafe. Having taken the food sample, it was sent to the food analyst and the report has also been obtained. The contention of the learned counsel for the petitioners is that the best consumption validity period for the food is 12 months. But the sample was taken on 27.1.2019 and the analysis report was obtained on 21.12.2019, after a lapse of 410 days.

7. The learned Government Advocate (crl.side) for the respondent submitted that in case the food analyst is not able to complete the analysis within a period of 14 days, he should inform to the designated officer about the reasons for the delay. In this regard he referred to Section 46 (3) of the FSS Act 2006 reads as follows:-

“46. Functions of Food Analyst.

(1) ...

(2) ...

(3) The Food Analyst shall, within a period of fourteen days from the date of receipt of any sample for analysis, send—

(i) where such sample is received under section 38 or section 47, to the Designated Officer, four copies of the report indicating the method of sampling and analysis; and

(ii) where such sample is received under section 40, a copy of the report indicating the method of sampling and analysis to the person who had purchased such article of food with a copy to the Designated Officer:

Provided that in case the sample cannot be analysed within fourteen days of its receipt, the Food Analyst shall inform the Designated Offic