Judgment :- The petitioners have filed this petition under section 482 of Criminal Procedure Code, seeking for calling for records from the Judicial Magistrate Court No.II, Coimbatore and quash the complaint filed for the offences under the Prevention of Food Adulteration Act. 2. According to the petitioners, first, third and sixth petitioners are respectively the wives of 4th, 2nd and 5th petitioners and petitioners 4 and 5 are brothers. Second and third petitioners are their parents. Petitioners 2, 4 and 5 are well known doctors in Coimbatore; petitioners are Directors of the Company known as 'Ganga Medical Centre and Hospitals Private Limited', Coimbatore-9. The said hospital established in 1978 has grown steadily and the same is rendering service to the general public at large. 3. There is a canteen in the hospital intended to serve only the patients and not for any outsiders. Since the food items sold in the canteen are only for the patients, the Tamil Nadu General Sales Tax (hereinafter referred to as 'TNGST Act') is not attracted. According to the petitioners, the respondent/Food Inspector of Coimbatore City Municipal Corporation on 16.03.2004 took some samples of hot milk intended to be served to the patients and sent the same to the Health authorities on 17.03.2004 and the report dated 21.04.2004 from the Analyst seems to have opined that the sample is adulterated and he launched prosecution on 04.02.2005 and issued a notice on 10.02.2005. Excepting the fifth petitioner, the other petitioners were not served with notice personally. According to the petitioners, the entire proceedings initiated by the respondent is ultra vires, illegal and liable to be quashed. Further, according to the petitioners, in view of G.O.No.976 dated 28.03.1959 issued under section 17 of T.N.G.S.T. Act, taking of samples itself is illegal. The erroneous particulars furnished in the notice given a misleading picture of the petitioners and hence, the entire proceedings has to be quashed. 4. Heard both sides. 5. Before going to the other details of the case, it is very much necessary to mention the relevant dates, which are as follows: 16.3.2004: Date of taking sample 17.3.2004: Date of sending sample to Analyst 19.3.2004: Analyst receives the sample 8.4.2004 & 9.4.2004: Analysis conducted 21.4.2004: Date of report of the Analyst 23.4.2004: Date of receipt of Analyst's report by the Coimbatore City Municipal Corporation. 31.12.2004: Complaint filed (Date of institution of the prosecution) before Court. 31.12.2004: Complaint filed (Date of institution of the prosecution) before Court. 4.2.2005: Date on which the case is numbered and referred to as the date of institution in the notice issued under Sec.13 (2). 14.3.2005: Copy of the report served on the accused 6. First of all, counsel for the petitioners submitted that the Local Health Authority is not entitled under the provisions of The Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') to take sample from the petitioners' hospital, because the edible items were supplied only for inpatients of the said hospital and were never intended for sale to the public. He also drew my attention that by exercise of the powers granted under section 17 of the TNGST Act, 1959, the Government by its G.O.Ms.976, Revenue, dated 28.03.1959, exempted sales tax on the sale of food to inpatients by the hospital without employing any contractors. Counsel also pointed out the proceedings of the Commercial Tax Officer, (FAC) Ram Nagar Circle, Coimbatore-18, which is dated 01.07.2004 in passing an order exempting the hospital from tax regarding sale of food made to the inpatients of the said hospital. 7. In this regard, counsel also relied upon the decision reported in Ahmed Dadabhai Advani ..vs.. State of Maharashtra ( AIR 1991 SC 1079 ), wherein sample was found to have been taken from a newly erected shop, the business of which had not yet commenced and there was also no other stock-in-trade found. In that circumstance, that licence to run the shop was found obtained only one day earlier to taking the sample. Held in that case that it cannot be said that the shop owner commenced the business. That observation was made in regard to the term "sale" as found in section 2(xiii) of the Prevention of Food Adulteration Act, 1954 (37 of 1954). That definition reads as follows:- "sale" with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash, or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article". 8. 8. The observation made in the above cited case could not be made applicable to the present facts of the case. The striking difference between the two cases is that even though licence was taken on a particular day, on facts the business was not shown to have commenced and there was also no other stock-in-trade found in the premises in the above cited case. Taking of sample before ever business was commenced was discountenanced by contending that there was no sale in actuality that has begun; inasmuch as there was no offer or exposure of sale as the sale has not so far started in that case. But the facts in the given case do show that even as per the order dated 01.07.2004 passed by the Commercial Tax Officer, (FAC), Ram Nagar Circle, Coimbatore-18, which was relied on document on the side of the petitioners, there was a visit by the officers of the Commercial Tax Department on 11.11.2003 into the Ganga Medical Centre and Hospital Private Limited and the purchases made on their regular activities and the balance sheet relating to the accounts of the hospital for the year 1999-2000 were verified. The said proceedings of the Commercial Tax Officer at the end of the last but one para do show that the sale of foods to inpatients by hospital themselves without employing any contractors were said to have been exempted from tax under section 17 of the TNGST Act and that the preparation and supply of food were found made by the hospital itself and no contractor was employed. That order further reads that the management of the hospital had furnished copies of balance sheet for the year 1999-2000. It is in that circumstance, it is stated in that proceedings, regarding sale of food made to the inpatients of the hospital, the contention of the management was accepted. This would make it appear that even prior to the taking of sample, there was exposure of edible items for sale, of course to a restricted class of purchasers namely, 'inpatients' and inasmuch as that was only a sale for cash, it may even be exempted from sales tax by virtue of the Government Order but can no longer be termed as not a sale. The exemption from sales tax presupposes a sale and there cannot be an exemption of tax upon a sale without there being a sale at all. For the above reasons, this point is not favourable to the petitioners. 9. Counsel for the petitioners further submitted that there was inordinate delay in preferring a complaint, that is, on 04.02.2005, from the date namely, 23.04.2004 upon which analyst's report was received by the Coimbatore City Municipal Corporation. When a valuable right is conferred by section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that, that right will not be denied to him. The right is valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, this right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. It is in such circumstances it was held in Municipal Corporation of Delhi ..vs.. Ghisa Ram (1967 Crl.L.J.939) that in a case where there is denial of this right, on account of deliberate conduct of the prosecution eg., delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst. 10. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible. Thus, a dictum was laid in the above case law to the effect that "It may be presumed that some delay in the analysis by the Public Analyst and in his sending his report to the prosecution is bound to occur. Such delay always be envisaged by the prosecution, and consequently the elementary precaution of adding a preservative to the sample which is given to the accused-vendor should necessarily be taken by the Food Inspector". 11. In that case, the food article where from sample was taken was curd. Such delay always be envisaged by the prosecution, and consequently the elementary precaution of adding a preservative to the sample which is given to the accused-vendor should necessarily be taken by the Food Inspector". 11. In that case, the food article where from sample was taken was curd. It was held that if a preservative was added and the sample was kept at room temperature, the percentage of fat and non-fatty solids contents for purposes of analysis will be retained for about four months and in case if it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without de-composition, will be six months. However, when a valuable right is conferred by section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that prosecution will proceed in such a manner that that right will not be denied to him. 12. In a similar case of our High Court reported in Mohamed Meeran.. vs.. G.Deenadayalu (2001 (2) CTC 546), the following are the dates; 18.07.1996: taking of sample 25.07.1996: sent for analysis 14.08.1996: Analyst report 24.08.1996: Analyst report received by the Local Authority 08.05.1998: Complaint 21.05.1998: Analyst report served on vendor/accused 22.05.1998: Accused filed application for sending sample for second analysis. 13. Since the application for second analysis filed under section 13(5) of the Act was not disposed of in the cited case, serious prejudice had been caused to the petitioner and hence, it was held that the proceedings as against the petitioners are liable to be quashed. 14. Counter contention was made on behalf of the respondent/local authority in the cited case that mere delay in launching the prosecution would not be a ground for quashing and that unless the second analysis would show that the articles of food got deteriorated, there cannot be any prejudice. In the above cited case law, the sample was taken from chilli powder and that was on 18.07.1996. The report was prepared on 14.08.1996 and received by the complainant on 24.08.1996. The complaint was filed after 22 months. The delay was held prejudicial to the vendor and that was so held by relying upon the following observation made in the decision rendered by the Supreme Court reported in Ahmed Dadabhai Advani ..vs.. The report was prepared on 14.08.1996 and received by the complainant on 24.08.1996. The complaint was filed after 22 months. The delay was held prejudicial to the vendor and that was so held by relying upon the following observation made in the decision rendered by the Supreme Court reported in Ahmed Dadabhai Advani ..vs.. State of Maharashtra (1991 (1) FAC 222. "Rule 9A uses the word 'immediately' replacing the words 'within ten days'. This expression has to be appreciated in the context of the facts and circumstances of each case bearing in mind the purpose for furnishing the report. The report is dated 1st September 1978. Yet the filing of the complaint was delayed up to 26th April, 1979. But the copy of the report was despatched on 11th July, 1979 and must have been received within a couple of days. Keeping in view the objective of the requirement to furnish a copy of the report to the accused, we think, having regard to the delay which had already taken place, it was incumbent on the part of the Local Health Authority to have promptly sent the copy which it failed to do..... We therefore, set aside the conviction recorded by the High Court and restore the order of the trial Court". Thus, the delay if prejudicial to the vendor, will make the proceedings to get quashed. This is so because of section 13(2) of the Act and Rule 9-B framed thereunder. While the former gives opportunity to the accused to make the application to the Court within a period of ten days from the date of receipt of the 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; the said ten days period is given under Rule 9-B for the Local (Health) Authority to forward a copy of the report of the result of analysis in Form III delivered to the vendor, after the institution of the prosecution. Thus, section 13(2) creates an opportunity to the vendor to get the analysis testified by the Central Food Laboratory within a particular period from the date of receipt of copy of the report. Thus, section 13(2) creates an opportunity to the vendor to get the analysis testified by the Central Food Laboratory within a particular period from the date of receipt of copy of the report. Rule 9-B makes it obligatory on the part of Local Health Authority that within a period of ten days after the institution of prosecution, a copy of the report of result of analysis shall be served upon the vendor, so that he can utilise the opportunity given under section 13(2) of the Act. 15. As was held in the decision reported in Municipal Corporation of Delhi's case (cited supra), the right conferred by section 13(2) of the Act on the vendor is a very valuable right and the prosecution is expected to proceed in such a manner that that right will not be denied to the vendor. That is why Rule 9-B makes it obligatory on the part of Local Health authority to serve a copy of the result of analysis within ten days after the institution of the prosecution. 16. There is also a controversy regarding 'institution of prosecution' as contemplated under section 9-B and the date on which the case is numbered after representation of the complaint, which was already returned on certain grounds. This issue was settled in the decision reported in C.Suresh and others ..vs.. The State ( 2005(1) CTC 645 ), wherein it was held that 'institution of prosecution' means filing of complaint before Court which has jurisdiction and not taking of cognizance. In this particular case, the complaint was filed on 31.03.2004 and it was numbered on 13.05.2004. The copy of the analyst report was served on the vendor-accused only on 18.05.2004. Thus there is 1-1/2 months delay after the institution of proceedings on 31.3.2004. This is against what is provided under Rule 9-B. Rule 9-B provides an obligation upon the Local Health Authority, to serve copy of report of analysis within ten days after institution of complaint. 17. In this case, the date of taking sample was on 16.03.2004 and the copy of the report of analyst was served upon the vendor only on 14.03.2005. It has an interval of roughly one year. The article of food where from sample was taken is milk. Even if preservative is added, it will stand to the scrutiny of second analysis only for six months from the date of taking sample. It has an interval of roughly one year. The article of food where from sample was taken is milk. Even if preservative is added, it will stand to the scrutiny of second analysis only for six months from the date of taking sample. Milk has a tendency to deteriorate, making it unfit for analysis. It is unimaginable that the sample can be subjected to test after one year on being taken as a sample. Thus, the right conferred under section 13(2) of the Act, which will be lasting for ten days from 14.03.2005 to the vendor, is lost. For the reasons mentioned above, the criminal original petition is allowed and the proceedings pending on the file of C.C.No.161 of 2005 on the file of Judicial Magistrate No.II of Coimbatore is quashed. Consequently, connected Crl.M.P. is closed.