Dismissed

B.Surendra Das v. State of Kerala

Kerala HC16 Aug 2013Crl.MC/1398/2012

Case brief

AI extract

What is this about?

In this criminal miscellaneous application, the Kerala High Court dismissed the petitioners application under Section 482 CrPC to quash an order dismissing their late filed Section 13(2) request for a second sample. The court held the application was belated, caused no purpose to be served, and no illegality existed in the lower court dismissal.

What did the court decide?

Application to quash the impugned order dismissed; interim stay vacated.

B.Surendra Das Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 193521082013

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Crl.MC.No. 1398 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN CMP 4385/2011 of JUDICIAL I CLASS MAGISTRATE - III,NEYYATTINKARA DATED 20-01-2012

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PETITIONER(S):

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1. B.SURENDRA DAS,

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SREE VISKHA , AMBALATHRA, THIRUVANANTHAPURAM

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2. VAISKH,

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MADUSOODANAM T.C. 39/2121, MANACAUD, P.O

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THIRUVANANTHAPURAM

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BY ADV. SRI.K.B.PRADEEP

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COMPLAINANT(S):

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA

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2. THE FOOD INSPECTOR, NEYYATTINKARA CIRCLE (VIZHINJAM PANCHAYAT) THIRUVANANTHAPURAM

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BY PUBLIC PROSECUTOR SRI.P.PADMALAYAN

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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jm/

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Crl.MC.No. 1398 of 2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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ANNEXUREE I : COPY OF UNNUMBERED CMP FILED ON 08-09-2005 ANNEXURE II : COPY OF C.M.P. NO 4385/2011 ANNEXURE III : CERTIFIED COPY OF THE ORDER DATED 20-01-2012 IN C.P NO 4385/2011 IN CC NO 1017/2005 ON THE FILE OF THE JUDICIAL FIRST CLASS AMGISTRATE III, NEYYATTINKARA

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RESPONDENTS' EXHIBITS : NIL

\ TRUE COPY \

PA TO JUDGE

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K.RAMAKRISHNAN, J.

Crl.M.C No. 1398 of 2012

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Dated this the 16^th day of August, 2013

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This is an application filed by the accused Nos 1 and 2/petitioners in C.M.P. No.4385/2011 in C.C No. 1017/2005 on the file of the Judicial First Class Magistrate-III, Neyyattinkara to quash Annexure III order under Section 482 of Code of Criminal Procedure.

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The petitioners, who are accused in the above case had filed an application under Section 13(2) of the Prevention of Food Adulteration Act for sending second sample to the Central Food Laboratory, Mysore and that application was dismissed by the learned Magistrate by the impugned order stating that it is highly belated. Aggrieved by the same, the present application has been filed to quash Annexure III order under section 482 of Code of Criminal Procedure.

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Heard the counsel for the petitioner and the Public Prosecutor.

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The counsel for the petitioners submitted that though immediately on receipt of intimation regarding the filing of the complaint, the petitioners preferred an application under Section 13(2) of the Act on 08.09.2005 and since that

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Crl.M.C No. 1398 of 2012

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application was found missing, they were prompted to file this present Annexure - II application.

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But it is seen from the order that, present

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application has been filed after seven years of the filing of the complaint. Further, there is nothing produced on the side of the petitioner to prove that they have earlier preferred an application as Annexure -1 as claimed by them. The application under Section 13(2) of the Act has to be filed within 10 days from the date of service of intimation regarding filing of complaint. But that was not seen done in this case and no satisfactory evidence has been adduced, at least to come to a conclusion that Annexure - 1 petition was filed for that purpose earlier. It is also seen from the order that on receipt of the summons, both the accused appeared before the Court on 31.10.2005 and they were released on bail on 11.12.2008. In spite of that, the present application is filed only in the year 2011. So considering the circumstances, and also the reasons stated by the the learned magistrate in the impugned order, it cannot be said that any illegality has been

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Crl.M.C No. 1398 of 2012

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committed by the learned magistrate in dismissing the application which was filed long after the prosecution was launched and no purpose will be served by sending second sample as well at a belated stage and the petitioners are not entitled to get the relief claimed in the petition and application is liable to be dismissed.

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In the result, the application is dismissed. The interim stay granted is hereby vacated. The parties are directed to appear before the Court below on 27.9.2013. The office is directed to communicate this order to the Court below immediately.

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K.RAMAKRISHNAN, JUDGE

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B.Surendra Das v. State of Kerala

Case brief

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B.Surendra Das v. State of Kerala

Case brief

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