CRL.MC NO. 8547 OF 2022

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944 ``` ## **`CRL.MC NO. 8547 OF 2022`** ``` AGAINST THE ORDER/JUDGMENT IN ST 2/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, PERINTHALMANNA ``` ## **`PETITIONERS/ACCUSED NOS. 4 AND 5:`** ``` 1SONY V.POTTAKKAL AGED 60 YEARS S/O.P.I.VARGHESE, POTTAKAL HOUSE, R.S.ROAD, IRINJALAKUDA, THRISSUR (NOMINEE AND RESPONSIBLE PERSON FOR COMPLYING WITH THE CONDITIONS OF FSSAI LICENSE OF FOOD BUSINESS ESTABLISHMENT, M/S.KLF NIRMAL, FR.DISMAS ROAD, INDUSTRIES PVT.LTD, IRINJALAKUDA, KERALA-682021 WHICH MANUFACTURED THE UNSAFE TILNAD GINGELLY OIL/TIL OIL), PIN - 680121 ``` ``` 2K.L.F NIRMAL INDUSTRIES FR.DISMAS ROAD, P.B.NO.40, IRINJALAKUDA, KERALA (FOOD BUSINESS ESTABLISHMENT WHICH MANUFACTURED THE UNSAFE TILNAD GINGELLY OIL/TIL OIL (FSSAI LICENCE NO.10012041000085), PIN - 680121 ``` ``` BY ADVS. R.ANIL THOMAS ABRAHAM (NILACKAPPILLIL) RESSIL LONAN ``` - **`K.S.KIRAN KRISHNAN`** ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 ``` - **`2 FOOD SAFETY OFFICER`** ``` MANKADA CIRCLE, MANKADA.P.O, MALAPPURAM, PIN - 679329 BY ADVS. ``` ``` CRL.MC NO. 8547 OF 2022 ``` ``` 2 ``` ``` ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 8547 OF 2022 ``` ``` 3 ``` ## **ZIYAD RAHMAN A.A., J.** **=================== Crl.M.C. No. 8547 OF 2022 =================== Dated this the 19[th] day of December 2022** ## **O R D E R** The petitioners are the accused Nos. 4 and 5 respectively in S.T. No.2 of 2022 on the files of the Judicial First Class Magistrate Court-II, Perinthalmanna. The aforesaid case was instituted based on Annexure-I complaint submitted by the 2[nd] respondent herein for the offences punishable under Sections 3 (1) (zz)(xii), 26 (1), 26 (2) (1), 27 (1), 27 (3) (d) and Section 59 (i) of the Food Safety and Standards Act, 2006. 2. The facts which lead to the filing of this Criminal M.C. are as follows; The 2[nd] petitioner/5[th] accused is a licensed food business establishment and the 1[st] petitioner/4[th ] accused is the nominee and person responsible for compliance with the conditions of the Food Safety and Standards Act, 2006. The basic allegations against the petitioners are that, when the 2[nd] respondent purchased four bottles of Tiland Gingelly oil ``` CRL.MC NO. 8547 OF 2022 ``` ``` 4 ``` on 05.01.2022 from the 1[st] accused, which were manufactured by the 2[nd] petitioner/5[th] accused, and upon examination of the same, it was found that, it contained lead to the extent of not less than 0.34 mg/kg which is above the prescribed limit as contemplated under Regulation 2.11 of Food Safety and Standards (Contrarians, Toxins and Residues) Regulation 2011 and therefore, is unsafe as per Section 3(1) (zz)(xii) of Food Safety and Standards Act, 2006. The cognizance was taken by the Judicial First Class Magistrate's Court-II, Perinthalmanna and the said proceedings are under challenge in this Crl.M.C. 3. Heard Sri. R. Anil, the learned Counsel appearing for the petitioners and Sri. Gracious Kuriakose, learned Additional Director General of Prosecution (ADGP) appearing for the State. 4. The contention put forward by the learned counsel appearing for the petitioners is that, the Regulation which was applicable at the time when the inspection was made, was the Food Safety and Standards (Contrarians, Toxins and Residues) Regulation 2011. As per the said provisions, the limit of lead was 0.5 mg/kg. Thereafter, when new ``` CRL.MC NO. 8547 OF 2022 ``` ``` 5 ``` Regulation came into force, namely the Food Safety and Standards (Contrarians, Toxins and Residues) 1[st] amendment Regulations 2020, the aforementioned criteria was re-fixed as 0.1 mg/kg. 5. The specific contention put forward by the learned counsel for the petitioners, is that the aforesaid 2020 Regulations were made applicable to the food business establishments only with effect from 01.07.2021. In this case, as the purchase of the article was made on 05.01.2021, the same was before the implementation of the 2020 Regulations and therefore, the limit as prescribed in the said Regulation cannot be made applicable. It is pointed out that the prosecution initiated against the petitioners is on the basis of the criteria fixed in the 2020 Regulations and therefore, unsustainable. 6. The learned Additional Director General of Prosecution (ADGP) fairly conceded that at the time when the inspection when conducted, the regulation applicable was that of 2011 in which the only entry which can be made applicable to the product of the petitioners is edible oils and fats, and the limit prescribed was only 0.5 mg/kg. The ``` CRL.MC NO. 8547 OF 2022 ``` ``` 6 ``` learned ADGP further pointed out that, even though a counter affidavit has been filed in this case, disputing the contentions raised by the petitioners, it is clarified that the contentions raised therein were under the impression that, since 2020 Regulations came into force before the date of purchase of the sample from the petitioners, the same can be made applicable to the case at hand. However, the real position is that the said provisions were made applicable to the food business operators only with effect from 01.07.2021, which was after the date of collection of the samples. Upon realizing the said mistake, the above error was pointed by the learned ADGP, and he also brought my attention to the observations made by the Hon'ble Supreme Court in **Shiv Kumar v. Hukam Chand and Another (1999 (7) SCC 467)** wherein the following observations are made; “ 13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating ``` CRL.MC NO. 8547 OF 2022 ``` ``` 7 ``` agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.” 7. I appreciate the fairness shown by the learned ADGP. 8. Thus, it is evident that, as the extent of lead found in the gingelly oil purchased from the petitioner was 0.34 mg/kg, the same was well within the limits as prescribed in the 2011 Regulations. On perusal of the records, it is seen that the complaint was filed on the wrong assumption that what was applicable to the sample purchased from the petitioner was the criteria fixed in the 2020 Regulations, whereas, as admitted by the respondent, the criteria applicable was the one prescribed in 2011 Regulations. 9. Thus, it is evident from the records that, the petitioners cannot be prosecuted based on Annexure-1 ``` CRL.MC NO. 8547 OF 2022 ``` ``` 8 ``` complaint, as admittedly, the extent of the lead content was within the criteria as fixed in 2011, which was the only regulation applicable at the relevant time. In such circumstances, the proceedings on the basis of Annexure-1 are liable to be interfered with. In the result, this Crl.M.C. is allowed, Annexure-1 complaint submitted by the 2[nd] respondent and all further proceedings pursuant to it, including the proceedings in S.T.No. 2/2022 on the files of Judicial First Class Magistrate's Court-II, Perithalmanna, are hereby quashed. **Sd/ZIYAD RAHMAN A.A., JUDGE** LU ``` CRL.MC NO. 8547 OF 2022 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 8547/2022`** ## **`PETITIONER ANNEXURES :`** ``` ANNEXURE-1THE CERTIFIED COPY OF THE COMPLAINT FILED BY THE SECOND RESPONDENT IN S.T.NO.2 OF 2022 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, PERINTHALMANNA ANNEXURE-2THE TRUE COPY OF THE NOTIFICATION DATED 7-8-2020 OF THE MINISTRY OF HEALTH AND FAMILY WELFARE (FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA) F.NO.STDS/SP/ (CONTAMINANTS)/NOTIFICATION-1/FSSAI- 2018 ANNEXURE-3TRUE COPY OF THE REPORT NO.2518/2020- 2021 DATED 17-02-2021 OF THE FOOD ANALYST, REGIONAL ANALYTICAL LAB, KOZHIKODE IN FORM VII A ANNEXURE-4TRUE COPY OF THE THE FOOD SAFETY AND STANDARDS (CONTAMINANTS TOXINS AND RESIDUES) REGULATIONS 2011 DATED 1-08- 2011 ``` ## **`// True Copy // PA To Judge`**