Crl.M.C.No.1989 of 2012 against ST.No.1162/2011, Chief Judicial Magistrate Court, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935** **Crl.MC.No. 1989 of 2012 () --------------------------** **AGAINST ST.NO.1162/2011 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **PETITIONERS/ACCUSED 1 TO 3:---------------------------** **1. T.GANGADHARAN AGED 48 YEARS S/O.KUNJIRAMAN, ASSISTANT MANAGER PANTRY CAR OF TRAIN NO.17229, SABARI EXPRESS VELIKKOTH HOUSE, P.O.PALAYAD, THALASSERY KANNUR DISTRICT.** **2. M.K.MOHANAN AUTHORISED SIGNATORY AND PFA LICENSEE PANTRY CAR OF TRAIN NO.17229 SABARI EXPRESS, S/O.KARUNAKARAN NAIR, 11/6/695 RED HILLS, HYDERABAD.** **3. M/.S.C.K.K.CATERING SERVICE, POST BOX NO.1776, RAILWAY STATION ROAD COCHIN-682 016 REPRESENTED BY ITS MANAGER P.SURESH S/O.KUNJIKUTTAN, PUNNAKALADI HOUSE, THACHAMPARA PALGHAT-678 593.** **BY ADV. SRI.M.A.ASIF** **RESPONDENTS/COMPLAINANT AND STATE:-** **---------------------------------** **1. HEALTH AND FOOD INSPECTOR SOUTHERN RAILWAY, ALAPPUZHA.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.C.S.DIAS,SC, RAILWAYS R2 BY PUBLIC PROSECUTOR SRI.JITHESH R.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**Kvs/-**_ ## **P.D.RAJAN, J.** = = = = = = = = = = = = = Crl.M.C.No.1989 of 2012. = = = = = = = = = = = = = Dated this the 19[th] March, 2014. ## **J U D G M E N T** This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure-C complaint and all further proceedings in ST.No.1162/2011 on the file of the Chief Judicial Magistrate Court, Ernakulam for an offence punishable under Section 16(1A)(i) read with Section 2(ia) (a)(j) and Section 7(i) of the Prevention of Food Adulteration Act, 1954 and Rule 5, Appendix B-A 16.27 and Rule 29 of Prevention of Food Adulteration Rule, 1955. The first petitioner is the Assistant Manager of pantry car of Sabari express (Train No.17229) and the second petitioner is the licencee and the third petitioner is the contractor in the above case. The tomato sauce kept for serving with short eats expired six months from its manufacturing date. On examination it was found not in conformity with the standard prescribed. A prosecution was initiated against **Crl.M.C.No.1989/2012.** 2 them. But the valuable right of the petitioners under Section 13(2) of the Prevention of Food Adulteration Act, 1954 was lost which is a mandatory provision, if trial is proceeded violating the mandatory provision which would amount to an abuse of process of the court. 2. The allegation against the petitioners is that on 11.5.2011, the first respondent who is the Health and Food Inspector, Southern Railway, Alappuzha took sample of three numbers of Classic Brand Tomato Sauce which is a company sealed plastic bottle kept for sale for serving short eats. The sauce was packed in April, 2011 under Batch No.A1-01 and the label mentioned to be best before six months. After complying the statutory formalities of packing and sealing as per the provisions of Prevention of Food Adulteration Act and Rules sent for analysis to the local health authority. After analysis the public analyst forwarded a report stating that the sample is adulterated. Therefore, a complaint was launched before the Chief Judicial Magistrate Court, Ernakulam. In the circumstance, **Crl.M.C.No.1989/2012.** 3 ## petitioners approached this Court with this petition. 3. The inherent jurisdiction under Section 482 of the Cr.PC. for the ground to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. When any statutory direction or rule is provided one cannot exercise this inherent power violating those directions. Therefore, ordinarily in an enquiry High Court cannot invoke Section 482 of the Code. The Apex Court in **R.P.Kapur v. State of Punjab** (1960 SC 866) considered the circumstances in which the High Court can, by invoking its inherent powers,quash the criminal proceedings in a subordinate criminal court. The Supreme Court observed: “It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not **Crl.M.C.No.1989/2012.** 4 possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute **Crl.M.C.No.1989/2012.** 5 and offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 482 the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 482 in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point.” 4. In this case the first respondent seized the article and thereafter it was sent for public analyst for examination. The sample was seized on 11.5.2011, it was sent over to public analyst on 12.5.2011. On 13.6.2011 Annexure-B report was received. It was forwarded to the Food Inspector on 20.6.2011. He applied for getting **Crl.M.C.No.1989/2012.** 6 sanction to the concerned department on 27.6.2011. The sanctioned was granted on 25.10.2011 and it was communicated to him on 8.11.2011 only. The first respondent preferred Annexure-C complaint on 7.11.2011 before the Chief Judicial Magistrate Court, Ernakulam. Notice under Section 13(2) was issued only on 12.12.2011. Petitioners received the notice only on 24.12.2011 and they filed application in the trial court on 31.12.2011. The learned counsel appearing for the petitioners contended that he lost the valuable right of sending the sample to the Central Laboratory for analysis. When such a valuable right is lost, the entire prosecution will be vitiated. Even though he contended so no materials have been produced before me to show that the second sample was not sent for food laboratory for analysis. The only submission made by the petitioners alone is not sufficient at this juncture. If that be the position, it is the responsibility of the concerned Chief Judicial Magistrate to verify such violation protect the valuable right of the petitioners for sending second sample **Crl.M.C.No.1989/2012.** 7 to Central Food Laboratory. In this circumstance, the petitioners are at liberty to take all these contentions before the court below. If such a contention is taken by the accused in the trial court, the learned Chief Judicial Magistrate shall consider that aspect and dispose the matter according to law. This Crl.MC is disposed of as above. **Sd/P.D.RAJAN, (Judge)** **Kvs/-** ## **-// true copy //-** **PA TO JUDGE.**