Crl.M.C.No.441 of 2011 and Crl.M.C.No.565 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933** ## **Crl.MC.No. 441 of 2011()** **----------------------------------** ## **ST.NO. 2816/1996 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY** **....................** ## **PETITIONER(S): 4TH ACCUSED** **----------------------------------------------** **M/S.RAKHI AGENCIES, KANJIRAMATTOM, THODUPUZHA, EAST P.O., REPRESENTED BY L.S.REGHUNATHAN.** **BY ADV. SRI.N.A.MURALEEDHARAN** ## **RESPONDENT(S): COMPLAINANT AND STATE** **------------------------------------------------------------------** **1. FOOD INSPECTOR, CHALAKUDY CIRCLE, CHALAKUDY, PIN-680 317.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-680 031.** **R1 & R2 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/03/2011, ALONG WITH CRMC NO.565 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **THOMAS P JOSEPH, J.** **----------------------------------------** **Crl.M.C.Nos.441 and 565 of 2011** **--------------------------------------Dated this 28[th] day of March, 2011** ## **ORDER** The question urged for a decision in these cases is whether the standard fixed for pickles in oil as per the Prevention of Food Adulteration (II Amendment) Rules 2005 which came into force with effect from 21.09.2005 is applicable to cases pending on the said day. Crl.M.C.No.441 of 2011 arises from S.T.No.2816 of 1996 of the Court of learned Judicial First Class Magistrate, Chalakkudy. Crl.M.C.No.565 of 2011 arises from S.T.No.2026 of 1997 of the same Court. 2. Short facts necessary for a decision of the question are: In S.T.No.2816 of 1996 the first respondent, Food Inspector purchased garlic pickle in oil from the first accused in that case on 15.12.2005 and after complying with the formalities one of the sample parts was sent to the Public Analyst for analysis. Annexure-AII is the report of the Public Analyst. In that report, it is stated that the height of oil layer above the contents was 0.2cm and the oil contend was 6.7% by weight. As per Appendix Crl.M.C.Nos.441 and 565 of 2011 -: 2 :- A..16.16(ii) of the Rules as it stood then, pickle had to be covered with oil so as to form a layer of not less than 0.5cm above the contents or the percentage of oil in pickle should not be less than 10%. It is not disputed that as per Appendix A..16.16(ii) as on the date of purchase and sampling, the sample did not conform to the prescribed standard. 3. In S.T.No.2026 of 1997 (which is the subject matter of Crl.M.C.No.565 of 2011) the Food Inspector purchased mango pickle in oil from the petitioner on 16.12.1996 Annexure-II is the report of the Public Analyst where it is stated that the layer of oil above the vegetable matter was 0.2cm and oil content was 4.9% by weight. It is not disputed that oil content in the sample did not conform to the standard prescribed as per Appendix A..16.16(ii) of the Rules as it then stood. The Rule as amended with effect from 21.09.2005 and in susbtitution of Appendix A..16.16(ii), the Central Government have introduced A..16.42(ii). As per the said amendment standard prescribed for pickles in oil is as under: A..16.42(ii) “Pickles in oil (a) Drained weight : Not less than 60.0% (b) Fruit and vegetable pieces shall be practically remain submerged in oil”. There is no dispute in these cases about contents of vegetables. Dispute is only regarding the oil content. It is also not disputed Crl.M.C.Nos.441 and 565 of 2011 -: 3 :- that if the standard prescribed under Appendix A..16.42(ii) is applied, then the samples taken by the Food Inspector in these cases conform to the said standard. 4. What is required to be decided is whether benefit of Appendix A..16.42(ii) introduced by the amendment which came into force on 21.09.2005 is available to the petitioners since the cases against them have not been concluded by a judgment but are pending before learned Magistrate for trial. Learned counsel for petitioners contends that the amendment being a piece of beneficial legislation, its benefit should go to all pending cases. Learned counsel placed reliance on various decisions to support the contention. Learned Public Prosecutor contended that the purchase, sampling and initiation of prosecution in the cases being prior to the amendment being brought to effect, the amendment can only operate prosepectively with effect from the date of its commencement and cannot apply to pending cases. 5. That in short is the question I am called upon to decide in these cases. The effect of repeal was considered by the Supreme Court in **Kolhapur Canesugar Works Ltd. v. Union of India (AIR 2000 SC 811)** and in paragraph 38 it is held: “The position is well-known that at common law, the normal effect of repealing a statute or Crl.M.C.Nos.441 and 565 of 2011 -: 4 :- deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this Rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the Legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be ” initiated under the new provision . 6. Referring to the above principle laid down by the Supreme Court the Indore Bench of the Madhya Pradesh High Court in **Dinesh Chand Kanoongo Vs. State of M.P (2003(1) FAC 283)** considered the applicability of amended Rules so far Crl.M.C.Nos.441 and 565 of 2011 -: 5 :- as prosecution under the Prevention of Food Adulteration Act is concerned. In paragraph 8 learned Judge has referred to the decision of the Full Bench of Delhi High Court in **Municipal Corporation Delhi Vs. Charanjit Lal (AIR 1979 Delhi 178** ) where question considered was whether amendment of Rule 29 (e) applied to pending proceeding. The Full Bench answered the question in negative and held that in appeal, the appellant could not get benefit and the amended Rule could not have retrospective effect after conviction. Learned Judge distinguished the decision in **Municipal Corporation Delhi Vs. Charanjit Lal (supra)** as the factual position in that case was different. There, the case was concluded by a judgment by the time the Rule was amended. Learned Judge made reference to the decisions in **Kolhapur Canesugar Works Ltd. v. Union of India** (supra) and **Dalmia Dairy Industries Ltd Vs. State of Haryana (2001(1) FAC 164), Rattan Lal Vs. The State of Punjab (AIR 1965 SC 444)** and the decision in **Prem Chand Vs. State of Haryana** ( **1993(2) FAC 178** ) where it was held that when the prescribed standard is changed by the amendment in Rules and the said amendment showed that the sample satisfied the requirement of substituted rules, then, benefit of the substituted rule must be given to the accused and he cannot be Crl.M.C.Nos.441 and 565 of 2011 -: 6 :- convicted. The same view was taken by the Delhi High Court in **B.L.Kohli and Anr. Vs. Delhi Administration (1986(3) FAC 140** ) and the Allahabad High Court in **Maya Prakash Vs. State of U.P (1998(1) FAC 73)** . 7. Two other decisions on the point are **Municipal Corporation of India Vs. Mai Ram @ Bhaya Ram (1974 FAC 19)** and **Sunder Lal Vs. Municipal Corporation of India (1974 FAC 21).** Both are decisions of the Division Benches of Delhi High Court. In both the cases question considered was the effect of notification issued under the Rules, whether it acted retrospectively and applied to pending proceedings. The question was answered in the affirmative. In **B.L.Kohli and Anr. Vs.** **Delhi Administration (supra)** and **Prem Chand Vs. State of Haryana(supra)** question considered was whether amendment to the Rules was retrospective. Effect of amendment on pending proceedings was considered and it was answered in the affirmative. It is held that when a change is made either by notification or by amendment as to the standard for the food article, if that standard when applied to the pending cases (before it culminated in a judgment) the food article in question cannot be said to be adulterated, benefit of that notification or amendment of the Rules should be given to such pending cases Crl.M.C.Nos.441 and 565 of 2011 -: 7 :- also. Having gone through the decisions of the various High Courts referred supra and the principle discussed therein, I am inclined to agree with the view taken therein. The benefit of Appendix A.16.42(ii) introduced by the Prevention of Food Adulteration (II Amendment) Rules 2005 is available to pending cases so far it is not concluded by a judgment. Now the cases are pending trial before the learned Magistrate. When Appendix A..16.42(ii) is applied to the food articles on hand, it conformed to the standard prescribed. 8. In the light of the discussion made above, I answer the question raised as under: Benefit of Appendix A.16.42(ii) introduced by the Prevention of Food Adulteration (II Amendment) Rules 2005 deleting Appendix A.16.16(ii) is applicable to pending cases so far as the same are not concluded by a judgment. Pickles in oil in these cases conform to the standard prescribed by Appendix A.16.42(ii) of the Rules and hence it cannot be said that the same are adulterated. 9. In Crl.M.C.No.441 of 2011, petitioner is the 4[th] accused in S.T.No.2816 of 1996. In Crl.M.C.No.565 of 2011 it is the first accused in S.T.No.2026 of 1997 who has challenged the prosecution. I found that prosecution against petitioners cannot stand on the finding I have made as to the application of Crl.M.C.Nos.441 and 565 of 2011 -: 8 :- appendix A.16.42(ii) of the Rules. There is no reason why the benefit of that finding should not be given to the remaining accused in the said cases. Resultantly these criminal miscellaneous cases are disposed of in the following lines: ## (i) **Crl.M.C.No.441 of 2011** is allowed. Annexure-A1 complaint, cognizance taken thereon and proceeding against petitioner and all other accused in S.T.No.2816 of 1996 of the Court of learned Judicial First Class Magistrate, Chalakudy are quashed. ## (ii) **Crl.M.C.No.565 of 2011** is allowed Annexure-1, complaint, cognizance taken thereon and proceeding against petitioner and all other accused in S.T.No.2026 of 1997 of the Court of learned Judicial First Class Magistrate, Chalakkudy are quashed. ## **(THOMAS P JOSEPH, JUDGE)** Sbna/- /True Copy/ P.A to Judge