Judgment Ramchandra Prasad Sinha, J. Both the applications have been filed under Section 482 of the Code of Criminal Procedure for quashing the prosecution of the petitioner for the offence punishable under section 16(a)(i) of the Prevention of Food Adulteration Act (hereinafter to 1te referred to as the Act) including the order dated 2.1.1981 taking cognizance of the offence and summoning the petitioner for trial. Since common questions of facts and law are involved in both the cases, they are being disposed of by the common judgment and this judgment will govern both the cases. By the aforesaid order dated 2.1.1981 the petitioner as well as the Manager, Morris Wilson, were summoned for trial in both the cases. 2. The proseC1ltion case is that on 27.9.1980 the Food Inspector visited the hotel premises of the petitioner took samples of Orange Rasgoola and Paneer for analysis. Both the articles were examined by the public Analyst and the Rasgoola was found to be adulterated due to presence of non-permitted Acid Coal-Tar-Dye (metanil yellow) and the Paneer was found to be adulterated as the same did not conform to the prescribed standard. On receipt of the reports from the public Analyst, the Food Inspector submitted two prosecution reports/complaints along with the reports of the Analyst to the Chief Judicial Magistrate. On the basis of the aforesaid reports cognizance was taken as stated above and the petitioner as well as the aforesaid Manager was summoned for trial by the Chief Judicial Magistrate and the case was transferred to another Judicial Magistrate for disposal. Case No. 21(M)81/Tr. 1319 of 1981 and Case No. 20(M)81/Tr 1318 of 1981 relate to the prosecution for adulterated Orange Rasgoola and adulterated Paneer respectively. Cr. Misc. No. 9223 of 1982 arises out of Case No. 21(M)81/Tr. 1319 and Cr. Misc. No. 9224 of 1982 arises out of Case No. 20(M) 81/Tr. 1318 of 1981. In both the cases the petitioner appeared on 30th January, 1981. Only the petitioner has filed the present application for quashing his prosecution on 10th December, 1982. 3. Cr. Misc. No. 9223 of 1982 arises out of Case No. 21(M)81/Tr. 1319 and Cr. Misc. No. 9224 of 1982 arises out of Case No. 20(M) 81/Tr. 1318 of 1981. In both the cases the petitioner appeared on 30th January, 1981. Only the petitioner has filed the present application for quashing his prosecution on 10th December, 1982. 3. It has firstly been contended by the learned counsel appearing on behalf of the petitioner that the aforesaid business is a partnership business of which the petitioner is one of the partners, but, in the prosecution reports complaints it has not mentioned that the petitioner is incharge of the business of the aforesaid firm as required by Section 17 of the Act which deals with the offences committed by the company. According to the provision of Section 17 of the Act it was incumbent upon the complainant to mention in the prosecution report/complaint that the petitioner was incharge of or responsible of the company for the conduct of the business and in absence thereof the petitioner cannot be prosecuted. 4. From the prosecution report /complaint it appears that the petitioner has been described as proprietor and Sri Morris Wilson has been described as the Manager. From the aforesaid prosecution report/complaint it docs not appear that the business belongs or belonged to a firm with the petitioner as One of the partners. From the aforesaid report/complaint it is clear that the petitioner is the owner and proprietor of the aforesaid business. 5. In support of his contention the learned counsel for the petitioner placed reliance upon a Bench decision of this Court in the case of Ravindra Nath Dutta alias R.N. Datta and others v. The State of Bihar and a single judge's decision of this Court in the case of Nokhe Lal Singh and others Vs. The State of Bihar Both the aforesaid cases were the cases under the Essential Commodities Act and in the complaint petition of both the afore• said cases it was mentioned that the business belonged to the firm of which there were several partners but in none of the cases, it was mentioned in the complaint as to which of the panners was or were incharge of the business and the• prosecutions were quashed on that account, therefore, the aforesaid cases are not applicable to the present case. 6. 6. For deciding this question of law involved in this case the provisions of Sections 7 and 16 of the Act are very much relevant. The relevant provision of Section 7 of the Act is quoted herein below :- "No person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute, (i) any adulterated food..... The relevant provision of Section 16 of the Act which is the penal Section, reads as follows :- "(1) Subject to the provisions of sub-section (XIA), any person- (a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores sells or distribute any article of food- (1) Which is adulterated within the meaning of sub-clause (m) of clause (ia) of Section 2 Or misbranded within the meaning of clause (ix) of that section Or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority." From the perusal of the aforesaid provision of law it is clear that if any adulterated article of food is sold by any other person on behalf of the owner or proprietor, the latter will be liable under the Act. It has been stated above that in the prosecution reports/complaints the petitioner has been described as proprietor and, therefore, it need not be mentioned in the complaint petition that the petitioner was incharge or responsible for the conduct of the business. It has also been contended by the learned counsel for the petitioner that it must have been mentioned in the prosecution report/complaint that the articles were being sold on behalf of the petitioner and as such necessary ingredients of the offence have not been mentioned in the prosecution report/complaint, the petitioner cannot be proceeded against. But as I have already mentioned that since the petitioner has been described as proprietor he wilt be liable and it need not be mentioned in the prosecution report/complaint that the article were being sold on his behalf. Unlike the aforesaid cases, there is no mention that the aforesaid restaurant business was a firm business or that there were partners of the said business. For the reasons, mentioned above, I do not find any substance in the aforesaid submission made on behalf of the petitioner. 7. Unlike the aforesaid cases, there is no mention that the aforesaid restaurant business was a firm business or that there were partners of the said business. For the reasons, mentioned above, I do not find any substance in the aforesaid submission made on behalf of the petitioner. 7. Show cause petitions have been filed in both the cases on behalf of the Food Inspector wherein it has been stated that when he reached, the petitioner and the Manager were present and managing the sate in the rastaurant to the customers present there and when asked by him they introduced themselves as owner and Manager respectively of the restaurant. It has further been mentioned there that they did not disclose that the petitioner was only a partner of the firm or that it was a firm business. At this stage I am not going to take into consideration the averments made by the Food Inspector in the show cause and deciding this case only on the allegations made in the prosecution report/complaint. During the course• of the trial it will be open to the petitioner to show that the aforesaid restaurant business belonged to the firm of which the petitioner was or is one of the partners. At this stage the case has to be decided on the allegation made in the prosecution report/complaint. In these cases only the complaints and public Analyst reports were available to the Chief Judicial Magistrate at the time of taking cognizance and summoning the petitioner and the facts mentioned therein were sufficient to take cognizance and issue summons to the petitioner. 8. It has been next contended on behalf of the petitioner that the provisions of Section 11 of the Act have not been complied with and hence the prosecution of the petitioner will be mere abuse of the process of the Court as there is no chance of his conviction in absence of compliance of Section 11 of the Act. 8. It has been next contended on behalf of the petitioner that the provisions of Section 11 of the Act have not been complied with and hence the prosecution of the petitioner will be mere abuse of the process of the Court as there is no chance of his conviction in absence of compliance of Section 11 of the Act. Reliance has been placed on Section 11 sub-section (1) (a) of the Act which reads as follows: "When a Food Inspector takes a sample of food for analysis he shall- (a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any whose name and address and other particulars have been disclosed under Section 14-A." On the basis of that it has been argued that no notice was given to the petitioner as contemplated under the aforesaid provisions. On the other hand, in tile show cause filed on behalf of the Food Inspector it has been asserted that two separate notices in writing of his intention of taking the sample of orange Rasgoola and Paneer for their analysis by the public Analyst in presence of the witnesses were given to him and the Paneer and Orange Rasgoala were purchased from the said restaurant after observing all the formalities. 9. Whatever may be the position it will be seen during the trial as to whether the aforesaid provision of law was complied with or not and what will be the effect of its non-compliance and it is not the stage to decide this controversial question of fact. 10. It has further been contended on behalf of the petitioner that the provisions of sub-section (4) of Section 11 has not been complied with in this case and the prosecution of the petitioner is illegal and bad in law. 10. It has further been contended on behalf of the petitioner that the provisions of sub-section (4) of Section 11 has not been complied with in this case and the prosecution of the petitioner is illegal and bad in law. Subsection (4) of Section 11 reads as follows :- "An article of food seized under subsection (4) of Section 10, unless destroyed under sub-section (4A) of that section and any adulterant seized under sub-section (6) of that section shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst: Provided that if an application is made to the Magistrate in this behalf by the person from whom any article of food has been seized, the Magistrate shall by order in writing direct the food Inspector to produce such article before him within such time as may be specified in the order.'' 11 It has been urged on behalf of the petitioner that in this case the articles seized under sub-section (4) Section 10 has to be produced before a Magistrate as soon as possible and not, in any case, later than seven days after the receipt of the report of the public Analyst but in this case the same was not produced before the Magistrate within seven days after the receipt of the report of the Public Analyst. This sub• section refers to the article seized under sub-section (4) of Section 10 of Act but in this case neither the orange Rasgoola nor the Paneer was seized by the Food Inspector under subsection (4) of Section 10 of the Act. This sub• section refers to the article seized under sub-section (4) of Section 10 of Act but in this case neither the orange Rasgoola nor the Paneer was seized by the Food Inspector under subsection (4) of Section 10 of the Act. Subsection (4) of Section 10 of the Act reads as follows :- "If any article intended for food appears to any food Inspector to be adulterated or misbranded, he may seize and carry away Or keep in the safe custody of the vendor such article in order that it may be dealt with hereinafter provided,: and he shall, in either case take a sample of such article and submit the same for analysis to a public Analyst; Provided that where the food Inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such articles with one or more sureties all the food Inspector deems fit and the vendor shall execute the bond accordingly." In the present case the articles were not seized by the food Inspector under sub-section (4) of Section 10 of the Act. In the present case the samples of the Orange Rasgoola and Paneer were taken by the food Inspector under Section 10 (1) (a) of the Act. Therefore the provision of subsection (4) of Section 11 of the Act are not applicable in the present case and they need not be observed and complied with The contention of the learned counsel is without any merit. 12. The last point urged on behalf of the petitioner is that the provisions of sub-section (2) of Section 13 of the Act having not been complied with, the prosecution of the petitioner is unwarranted in law. Section 13 subsection (2) of the Act is quoted herein below :- 13 (2). 12. The last point urged on behalf of the petitioner is that the provisions of sub-section (2) of Section 13 of the Act having not been complied with, the prosecution of the petitioner is unwarranted in law. Section 13 subsection (2) of the Act is quoted herein below :- 13 (2). On receipt of the report of the result of the analysis under subsection (i) to the effect that the article of food is adulterated, the local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and particulars have been disclosed under Section 14A forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of copy of the report to get the sample of the article of food kept by the local (Health) Authority analysed by the Central Food Laboratory." 13. The aforesaid sub-section says that on receipt of the report of the result of the analysis by the public Analyst to the effect that the article of food is adulterated the Local (Health) Authority after the institution of the prosecution against the person or persons from whom the sample was taken will forward the copy thereof to the aforesaid person or persons informing him or them that if he/they so likes/like he or they make an application within a period of ten days from the date of receipt of the aforesaid report to get the sample of the article of food kept by the authority analysed by the Central Food Laboratory. In this case the petitioner appeared and filed applications on 30th January, 1981 in both the cases stating therein that he received the notice dated 13.1.1981 along with the reports of the public Analyst on the 20th January, 1981 and prayed for sending the article for examination by the Central Food Laboratory, Calcutta. On that very day the Court allowed the prayer of the petitioner and directed the authority to produce the sample before it. On that very day the Court allowed the prayer of the petitioner and directed the authority to produce the sample before it. Therefore, the aforesaid provisiol1 was complied with and the petitioner is not entitled to take the plea of non-compliance with the aforesaid provision. The learned counsel appearing on behalf of the petitioner has also drawn my attention to the provision of Section 13(2A) of the Act which says that when the application is filed under sub-section (2) of the said section the Court shall direct the Local (Health) Authority to produce the sample within a period of five days from the date of receipt of the requisition by the Court. In this case the sample was received by the Court on 13.3.1982 and the same were sent to the Central Food Laboratory on 1.5.1982 and the contention of the petitioner is that though the order was passed on 30th January, 1981 the sample was received by the Court after more than a year but the learned counsel failed to show as to when such requisition was received by the Local (Health) Authority. In the application for quashing it has not been stated the date on which the requisition was received by the aforesaid authority nor he has been able to show as to when the requisition was received, In the absence of necessary material on the point it cannot be said that Section l3(2A) of the Act was not complied with. It has further been submitted that Rasgoola and Paneer both are fast decaying matters and therefore the examination by the Central Food Laboratory after long laspse of time was meaningless and the petitioner was deprived of his right of getting the same examined by the Central Food Laboratory. From the several orders passed by the trial court it appears that inspite of the order passed by the Court, the petitioner did not deposit the necessary cost and material for sending them to the Laboratory and at last on 5.4.1982 the Court has to reject the application for sending the samples to the Laboratory in absence of the compliance of the Court's order by the petitioner dated 5.4.1982. In the aforesaid order it was very clearly mentioned that the delay was occurring in not sending the sample on account of the carelessness of the petitioner. In the aforesaid order it was very clearly mentioned that the delay was occurring in not sending the sample on account of the carelessness of the petitioner. On 13.4.1982 the petitioner again made a prayer for sending the samples to the Central Food Laboratory which was allowed and ultimately, as stated above, the samples were sent on 1.5.1982 for examination by the Central Food Laboratory on the insistence of the petitioner. Such being the state of affairs the petitioner cannot take advantage of delay in examination of the samples by the Central Food Laboratory at this stage of the case. However, it will be open to the petitioner to show, during the trial, that the delay in examination has caused prejudice to him 14. In this case all that the learned Magistrate has done is that after taking cognizance of the offence, summons to the petitioner has been issued for trial and the trial has not commenced. During trial if learned trial court comes to the conclusion that no offence has been made out against the petitioner it will be open to it either to discharge or acquit him as the case may be. For this purpose rely on a Supreme Court decision in the case of Khacheru Singh Vs. State of U.P. and another which fully supports the aforesaid view. 15. For the reasons, stated above, I am of the opinion that no grounds have been made out for quashing the prosecution including the order taking cognizance and issuing summons to the petitioner for trial and these applications are fit to be dismissed. 16. Accordingly, both the applications arc dismissed. Any observation made in this judgment will not prejudice the case of any of the parties. Applications dismissed.