TODIKONDA SUBBA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This criminal revision petition raises a question of general interest and importance. The question is what is the real meaning and content of the expression institution of prosecution employed in Sec. 13 (2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act.)

(2.) The facts and circumstances giving rise to the question are neither disputed nor complicated. A complaint was laid against the petitioner before ;j e 3rd Additional Munsif Magistrate Chirala, on 21st Jan., 1983, for offences under Sections 16(1) and 7 read with Sec. 2 (i-a), (m) of the Act by the Food Inspector, Chirala Municipality, who has been duly authorised to institute prosecution for offences under the Act. On the lame day a notice was served on the petitioner as envisage under Sec. 13(2) of the Act informing him that if he intended to send the sample kept by the local authority analysed by the Central Food Laboratory, he may make an application to the Court within a period of 10 days from the date of receipt of the copy of the report of the result of the analysis made by the Public Analyst. A copy of the report of the public Analyst on the sample of the groundnut oil seized from the petitioner shop was also enclosed with the notice. The complaint filed before the 3rd Additional Munsif Magistrate, Chirala, was returned with an endorsement that the complaint should be filed in the Court of the II Additional Munsif Magistrate, Chirala. On the same day the complainant presented the complaint before the Court of the 2nd Additional Munsif Magis rate, Chiala. The 2nd Additional Munsif Magistrate took the case on file as C.C. No. 5 of 1983, under Sections 16 (1) and 7 read with Sec. 2 (i ) (m) of the Act on 2nd Feb., 1983 and ordered issue of summons to the petitioner-accused. The case was posted to 17th Feb., 1983. The petitioner appeared in the Court on 17th Feb., 1983 and filed an application under Sec. 13(2) of the Act requesting the Court to send the sample kept with the local health authority to the Director of Central Food La migratory for analysis. The learned 2nd Additional Munsif Magistrate dismissed the application holding that the notice was served on the petitioner-accused as required under Sec. 13 (2) on 21st Jan., 1983, along with the report of the Public Analyst and his acknowledgment was obtained on the notice given to tits petitioner, that the petitioner failed to file an application within 10 days from the date of receipt of the notice along with the report of the Public Analyst and that the application filed on 17th Feb., 1983, was for beyond the time prescribed under Sec. 13 (2) of the Act and was therefore not maintainable. Aggrieved against the said order the petitioner-accused has filed this revision petition.

(3.) The learned Counsel for the petitioner firstly submits that the institution of the prosecution of the case commences only from the date the Court takes cognizance of the case that cognizance of the case was only taken in this case by the Magistrate on 2nd Feb., 1983, and the accused was directed to appear in the Court on 17th Feb., 1983 and that the application filed on 17th Feb., 1981 was not barred by time fixed under Sec. 13 (2) of the Act. In support of his submission he relied upon an unreported decision of this Court in Crl R. C. No. 607 of 1983 dated 1st March, 1984. In that case the learned Judge relying upon the decision in Rasulbaksh Vs. Emperor, A.I.R. 1944 Sind 103 held that the mere presentation of a complaint by a private individual, cannot be said to constitute the institution of criminal proceedings. It may, however, be pointed out that the Sind Chief Court in that case was concerned with the question when does proceedings within the meaning of Sec. 29 of the Arms Act in a Criminal Court said to have been instituted Sec. 29 of the Arms Act clearly provides that no proceedings for an offence under Sec. 19 (f) of the Arms Act shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the District or, in a presidency town, of the Commissioner of Police. In that case no sanction under Sec. 29 of the Arms Act had been obtained before the Challan was filed by the police. Therefore the Court on the fact and circumstances of the cast held that the prosecution was not maintainable Sec. 13 (2) of the Prevention of Food Adulteration Act "reads as under :