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Friday 13 November 2009

HIGH COURT COUNTER

CUDDALORE DISTRICT

MADRAS HIGH COURT


Crl.O.P.No.. . . . . . . ./2009
In
C.C.No.. . . . . . .. /2009
(On the file of Learned Judicial
Magistrate No.III , Cuddalore)







COUNTER AFFIDAVIT
FILED BY THE RESPONDENT
















Public Prosecutor













IN THE HIGH COURT OF JUDICATURE, MADRAS
(MADURAI BENCH)
Crl.O.P.No. . . . . . . . . of 2009
in
C.C.No.. . . . . . . ./ 2009
ON THE FILE OF LEARNED JUDICIAL MAGISTRATE No.III, CUDDALORE.


. . . . . . . . . . . . . .,
Prop: . . . . . . . . . . . . . . Products,
No.. . . . . . . . . . . . . .Road,
Thirubhuvanai,
Puducherry-605 107. …. Petitioner/ Accused No. .


Versus


Food Inspector,
Cuddalore Municipality. ….. Respondent/Complainant

COUNTER AFFIDAVIT FILED BY THE RESPONDENT

1. It is submitted that the petition filed by the petitioner/Accused 3 is not maintainable in law nor can it be sustainable on the facts.
2. It is submitted that all the allegations contained in the memorandum of Criminal Original Petition, except those that are specifically admitted hereunder, shall be deemed to be denied.
3. It is submitted that on 12.08.2008 at about 05.30 P.M, the respondent purchased three packets of RBD Palmolein Oil from the shop of the first accused namely . . . . . . . . . . . . . . grocery Stores at Panpari market, Tirupapuliyur after serving Form-VI notice and the Food Inspector paid Rs.165 /-(One hundred and sixty five only) and obtained a cash receipt. The Second accused is the Proprietor of the . . . . . . . . . . . . . . Agencies, which distributed the adulterated Palmolein Oil. The third accused/Petitioner is the Proprietor of the . . . . . . . . . . . . . .Foods situated at No. ,Sanyasi kuppam Road, Thirubuvanai which manufactured the . . . . . . . . . . . . . .Imported RBD Palmolein Oil.The Food Inspector has divided the three pre-packed packets into three equal parts. The Food Inspector sent one part to the Public Analyst and sent the remaining two parts to the Local Health Authority. The Public Analyst sent a report to the Local Health Authority.
4. It is submitted that the Public Analyst report revealed that “the sample is found to be adulterated”.
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5. It is submitted that the respondent collected the material documents and facts and sent the necessary proposals to the concerned officer for obtaining written consent on 19.03.2009.The Joint – Director (PFA) , Chennai accorded necessary consent on 18.05.2009 to the Food Inspector for launching prosecution against all accused U/s.16(i)(a)(i) r/w 7(i),2(ia)(a)(m) of the PFA Act,1954. Accordingly, the case was filed on 25.08.2009.
6. It is most humbly submitted that the Respondent/Complainant denies the Para a , b&f of the grounds in the Petition filed by the Petitioner 3. There is no delay in filing the complaint. The food sample of . . . . . . . . . . . . . .Imported RBD PalmoleinOil was taken on 12.08.2008. After receiving the Public Analyst’s analysis report in Form-3 on 04.09.08, as the sample was found to be adulterated, the Food Inspector wrote to the manufacturer to disclose the ownership details of manufacturer on 12.09.2008. The manufacturer, namely the Petitioner 3, disclosed the details of the manufacturer only on 14.03.2009. Thereafter the Respondent/Complainant obtained written consent from the Prosecution sanctioning authorities and filed the complaint on 25.08.09. A notice U/s.13(2) of the Prevention of Food Adulteration Act,1954 to all the accused to have the II portion of the food sample analyzed by the Director of Central Food Laboratory. None of the accused including the Petitioner/accused No.3 opted for sending the II portion of the food sample to be analyzed by the Director of Central Food Laboratory. When there being no application for such examination, as contemplated by Sec.13(1) of the Act, it is not open to the petitioner to contend that any prejudice was caused to him.
CITATION: MadhyaPradesh High Court- Gwalior Bench – BhogiRam Vs State of M.P. reported in FAC – 1992(2)- P.232
So the delay in launching prosecution has not caused any prejudice to the accused.
7. It is most humbly submitted that the Respondent/Complainant denies the Para C of the grounds in Petition filed by the Petitioner 3. The Food Inspector has complied the Rule 17(b) and 22-A of the Prevention of Food Adulteration Rules, 1955. In para-3 in page -3 of the history of offence submitted along with the chargesheet filed in the trial court, the Complainant Food Inspector has stated that
“gpd;G. czT khjphpapd; Vida ,U ghfq;fis mtw;wpw;Fhpa gbtk;-VII kw;Wk; khjphp Kj;jpiu gjpj;j gbtk; Mfpatw;iw ,izj;j ghh;ry; nra;J mjd; Nky; czT khjphpapd; tpguq;fis Fwpj;J cs;Sh; ey mjpfhhpaplk; 12.08.08 md;Nw xg;gilj;J Vw;gspg;G ngw;Nwd;”.
This amounts to compliance of Rule 17(b).
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In the same way, the Complainant has taken three numbers of one litre RBD Palmolein oil packets out of the 10 litres available in the grocery shop. This amounts to compliance of Rule 22-A.
8. It is most humbly submitted that the Petitioner/Accused No.3 admits in Para-C of the grounds in his Petition that the Acid value for the food sample sent for analysis was 0.9 Bis which was over and above the permitted volume of acid value. Hence, his contention that the foundation for launching the prosecution no longer exists and prosecution has to be quashed is not maintainable.
9. It is most humbly submitted that the Respondent/Complainant denies the Para e of the grounds in the Petition filed by the Petitioner 3. The manufacturer namely the Petitioner/accused no.3 in this case has been arrayed as accused u/s.7 of the Prevention of Food Adulteration Act, 1954 and not U/s.20-A. Hence, the contention of the petitioner that the manufacturer can be implicated or prosecuted only after the commencement of the trial or only after taking evidence is not sustainable. Because, the Honourable Apex Court has opined in the para-C of the BhagawanDas Jagdish Chander Vs Delhi Administration in 1975 SCC (Cri)410 that Distributor or manufacturer can be joined as co-accused initially.
10. It is most humbly submitted that the Respondent/Complainant denies the Para g of the grounds in the Petition filed by the Petitioner 3. As per Sec.13(2) of the Prevention of Food Adulteration Act,1954, the Local Health Authority has to serve the notice under the above section only after the institution of prosecution. It has been held in 1987 L.W.(Crl)342 in Abdul Azeez Vs Food Inspector, Ulundurpet that ‘Institution’ of the prosecution being the date on which the complaint was taken on file by the Magistrate. Here, in this case also, the complainant has taken steps to serve the 13(2) notice after the case was taken on file on 07.09.2009. Hence, the contention that the 13(2) notice was served beyond 10 days after the institution of prosecution is not sustainable.
Hence it is most humbly prayed that this Honourable Court may be pleased to dismiss the Crl.O.P. 23980 of 2009 with Cost.

Solemnly affirmed at Chennai Food Inspector,
On this the . . . day of November 2009 Cuddalore Municipality.
and signed his name in my presence. Before me
Attested
padufi@yahoo.in
padufi@gmail.com

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