Jijo Thomas P. (Vendor and Nominee) and M/S Reliance Agro Products Distribution Ltd. v Food Inspector, Kochi Circle, Tripunithura and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938** **Crl.MC.No. 2615 of 2014 ------------------------** ## **CC 353/2010 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM** **....** ## **PETITIONERS/ACCUSED:** **--------------------** **1. JIJO THOMAS P.(VENDOR AND NOMINEE), STORE-IN-MANAGER,RELIANCE AGRO PRODUCTS DISTRIBUTION LTD., VIJAYA BANK COMPLEX, BLDG NO X/19-J-INTUC JUNCTION, NETTOOR,ERNAKULAM 2. M/S.RELIANCE AGRO PRODUCTS DISTRIBUTION LTD., CHANDRIKA CHAMBERS,S.A ROAD,VYTILA,ERNAKULAM, REPRESENTED BY ITS NOMINEE JIJO THOMAS P., STORE-IN-CHARGE, RELIANCE AGRO PRODUCTS DISTRIBUTION LTD., VIJAYA BANK COMPLEX, BLDG NO. X/19-J INTUC JUNCTION,NETTOOR, ERNAKULAM (PRESENTLY KNOWN AS RELIANCE FINANCIAL DISTRIBUTION AND ADVISORY SERVICES LIMITED AS PER THE BOMBAY HIGH COURT ORDER OF 25TH OCTOBER 2013)** **BY ADV. SRI.C.P.MOHAMMED NIAS** ## **RESPONDENTS/COMPLAINANT AND STATE:** **----------------------------------** **1. FOOD INSPECTOR, KOCHI CIRCLE, TRIPUNITHURA 682 301.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** **Crl.MC.No. 2615 of 2014** **------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE 1: TRUE COPY OF THE REPORT DATED 19-10-2009 SUBMITTED BY THE PUBLIC ANALYST.** **ANNEXURE 2: TRUE COPY OF THE COMPLAINT PREFERRED BY THE 1ST RESPONDENT BEFORE THE HON'BLE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM** **RESPONDENT(S)' ANNEXURE:** **------------------------** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **RAJA VIJAYARAGHAVAN.V, J** - - - - - - - - - - - - - - - - - - - - Crl.M.C.2615 of 2014 - - - - - - - - - - - - - - - - Dated 28[th] day of June, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** 1.The petitioners are arrayed as the accused in CC No 353 of 2010 of the Additional Chief Judicial Magistrate, Ernakulam. The said case was taken on file on the strength of a complaint filed by the 1[st] respondent alleging offences punishable under section 16 (1) (a) (i) read with Section 2 (i-a) (b) (m) and 7 (i) of the Prevention of Food Adulteration Act , 1954 (hereinafter referred to as “the PFA Act” for short) read with Appendix B of item No A 28.01 of the Prevention of Food Adulteration Rules , 1955 (hereinafter referred to as “the PFA Rules” for short). - 2.The prosecution allegation is that on 24.9.2009, inspection was conducted at the Whole Sale Provision Store of the 3[rd] accused in which the 2 Crl.M.C.2615/2014 accused No 1 is the vendor and nominee. Raisins were found kept for the purpose of sale in a 1 kg packet . Samples were taken in accordance with the provisions of law for the purpose of analysis . One part of the sample was sent to the public analyst. After analysis Annexure 1 Form III report was issued by the Public Analyst reporting that the sample did not conform to the standards prescribed. Consequently, prosecution was launched under the relevant provisions of the Prevention of Food Adulteration Act. (Herein as the 'PFA Act, 1954”. - 3.I have heard the learned Counsel appearing for the petitioners as well as the public prosecutor. 4. The learned Counsel has limited his submissions to one ground . It is urged that a Division Bench Crl.M.C.2615/2014 3 of this Court in **Rasheed .N.K. V Food Inspector,Thalasserry 2016 (1) KLD 704** has laid down that Section 23(1A)(ee) and (hh) of the Prevention of Food Adulteration Act are mandatory , and any prosecution instituted under the Act , in violation of the said provisions will have to necessarily bite the dust. It was basing on the Judgment of the Apex Court in **Pepsico India Holdings Pvt. Ltd. v. Food Inspector and another[2010 (4) KLT 706 (SC)]** , that the law was laid down. According to the learned Counsel the method of analysis adopted in the instant case is not a validated one as prescribed under S.23(1A)(hh) and the laboratory where the analysis was conducted was not a specified one for such examination as defined under S.23(1A) 4 Crl.M.C.2615/2014 - (ee) of the Act. - 5.The learned public prosecutor countered the submissions of the learned Counsel and contended that these matters are to be raised before the Trial Court and this Court will not be justified in quashing the proceedings . - 6.It is an undisputed fact that Annexure - 2 complaint was laid solely on the strength of Annexure 1 Form III report of the Public Analyst . The said report is dated 19.10.2009. It was found on analysis that the food item did not conform to the standards prescribed as per item No A . 28.01 of Appendix B of the PFA Rules 1955. The Division Bench in Rasheed N.K. ( Supra ), after interpreting the various provisions of the PFA Act , 1957 , in line with the pronouncement of 5 Crl.M.C.2615/2014 the Apex Court in Pepsico Case, has held that in order for the Analyst report to become the basis for launching a prosecution , the analysis of the food has to be conducted in a laboratory defined under S.23(1A)(ee) of the Act. - 7.It is beyond cavil that the PFA Act , 1954 was repealed as per the notification issued by the Central Government dated 04/08/2011 by virtue of powers under S.97(1) of the FSS Act and the same had come into force on and from 05/08/2011. It has been held in Rasheed N.K. ( supra) that till the repealing of PFA Act , 1954 , no laboratory had been defined in terms of the provision under S.23(1A)(ee). In the case on hand the report is dated 19.10.2009 which in other words means that the laboratory where the Crl.M.C.2615/2014 6 analysis was conducted could not have been a defined lab. If that be the case the taking of cognizance on the basis of the said report could cannot be sustained. 8.Hence the continuance of the prosecution on the basis of Annexure 2 complaint cannot be nothing but an abuse of process of law. In the result this petition is allowed and all further proceedings in CC No.353 of 2010 of the Additional Chief Judicial Magistrate Court, Ernakulam will stand quashed. **Sd/RAJA VIJAYARAGHAVAN.V. Judge** vps