ORDER

This Criminal Original Petition has been filed, invoking Section 482 Cr.P.C., seeking orders to call for the records in S.T.C.No.1131 of 2019, on the file of the Court of the Judicial Magistrate, Rajapalayam.

2. The petitioners are the accused Nos.2 and 3 in S.T.C.No.1131 of 2019, on the file of the Judicial Magistrate Court, Rajapalayam. The respondent has filed a private complaint against three persons arraying the petitioners as accused Nos.2 and 3 alleging that the respondent/complainant, on 28.07.2018 at about 02.30p.m., had gone to a shop viz., Bharathy store of the first accused, that the complainant had purchased four pockets of Aarthi Maavu sweet and had taken samples and sealed the same in accordance with the procedures and sent the same to the Food Analyst, that the Food Analyst had sent a report dated 21.01.2019 stating that the sample was unsafe and misbranded, that the respondent, after obtaining necessary sanction from the Commissioner of Food Safety, lodged a complaint for the offences under Sections 59(i) and 52 of the Food Safety and Standards Act and that the case was taken on file in S.T.C.No. 1131 of 2019 and the same is pending on the file of the Judicial Magistrate Court, Rajapalayam.

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

4. The learned Counsel for the petitioners would submit that the expiry period for the product seized is two months from the date of manufacturing, that the product was manufactured on 12.07.2018, that the sample was taken on 28.07.2018, but the sample was analysed during 26.11.2018 and 07.12.2018 after the expiry of the said product and that therefore, the opinion of the Food Analyst that the sample was unsafe cannot be looked into, as the same was analysed only after the expiry period.

5. The learned Counsel for the petitioners would further submit that though the sample was lifted on 28.07.2018, the same was analysed and the report was taken after the lapse of nearly five months and thereby the respondent has violated the mandatory time limit contemplated under Section 42 of the said Act and that therefore, the prosecution launched is legally unsustainble and the same 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 days to the Commissioner of Food Safety for sanctioning prosecution.

(4) The Commissioner of Food Safety shall, if he so deems fit, decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to,-

(a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or (b) a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a court of ordinary jurisdiction.

(5) The Commissioner of Food Safety shall communicate his decision to the Designated Officer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary j