MOHD ALI MIRZA Vs. STATE OF A P

JUDGEMENT

(1.) HEARD the learned Senior Counsel Sri G.Satyanarayana Prasad appearing for the petitioner and the learned Government Pleader for the respondent.

(2.) THE petitioner is the Manager of a Hotel situated in Srisailam. On 31.08.2004, the Food Inspector inspected the hotel and found three cases (card boxes) of Vanaspathi and 20 kgs. of black pepper stocked in a plastic gunny bag and suspected that they were adulterated. He purchased three Vanaspathi packets and 750 grams of black pepper and sent them for analysis. On 28.10.2006 the petitioner received a notice stating that a case under the provisions of the Prevention of Food Adulteration Act, 1954 (for short, the Act), and the Rules made thereunder was filed against him and the hotel, before the learned Judicial First Class Magistrate, Atmakur, and it was registered as C.C.No.128 of 2006. Along with the said notice a report stated to have been submitted by the Public Analyst about the black pepper was enclosed. It was further stated that the petitioner was at liberty to apply and send the other two samples stated to have been deposited by him with the local health authority to the Central Food Laboratory, Pune in Maharashtra State. Challenging the registration of C.C.No.128 of 2006, the present Writ Petition was filed on the ground that the procedure prescribed under Section 11 of the Act was not followed and similarly Section 13 of the Act was also violated.

(3.) THE respondent filed a counter affidavit admitting the averments made by the petitioner. Though a notice along with the analysis report was served on both the accused, they did not avail the opportunity by sending the samples to the Central Food Laboratory, Pune in Maharashtra State for analysis purpose. It was further stated that there is no lapse of time for filing the complaint and serving the notice under Section 13(2) of the Act. The present Writ Petition was not maintainable without availing the opportunity under Section 13(2) of the Act. The complaint was filed under Section 2(ia)(h) of the Act read with Rule 44AAA of the Prevention of Food Adulteration Rules, 1955 (for short, the Rules). The sample of black pepper was collected for analysis purpose by paying its cost as per Section 10(3) of the Act, but the remaining stock was not seized. In case of non -seizure there is no need for production of the remaining two parts of the samples before the Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the Public Analyst. Hence Section 11(4) of the Act is not attracted. In the instant case the complaint was filed on 12.09.2006 and it was taken on file on 28.10.2006. The notice was dispatched on 30.10.2006 and the same was served on the petitioner. Hence, the proceedings are within time only.