K. Muhammed Ali v. The Food Inspector, Perambra Circle & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943** **CRL.MC NO. 4872 OF 2020** **CC 91/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYOLI PETITIONER/ACCUSED:** **K.MUHAMMED ALI AGED 33 YEARS S/O ABDULLA, KUNNATHU HOUSE, P.O.PAYYOLI ANGADI-673 523.** **BY ADVS. M.P.SHAMEEM AHAMED SRI.P.P.HASHICK** ## **RESPONDENTS/STATE:** - **1 THE FOOD INSPECTOR PERAMBRA CIRCLE, KOYILANDY P.O., KOZHIKODE-673 001.** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-682 031.** ## **PUBLIC PROSECUTOR SMT. C.SEENA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL HEARING ON 3.11.2021, THE COURT ON 29.11.2021 PASSED THE FOLLOWING:** Crl.M.C.4872/2020 2 ## **O R D E R** This is a petition filed under Section 482 of the Criminal Procedure Code seeking to quash the entire proceedings in C.C. 91 of 2018 on the file of the Judicial First Class Magistrate's Court, Payyoli. The short facts leading to the filing of the Criminal M.C. can be stated thus: 2. On 13.07.2006, the Food Inspector, Perambra Circle, who is the complainant, visited 'Last Chance Supermarket', a shop run in Payyoli Angadi in Building No.I/567 by accused 1 and 2 and purchased three bottles of synthetic vinegar, after issuing Form-VI notice, paying an amount of Rs.18 as price to the shop vendor, the 1[st] accused Muhammed Ali who was available in the shop; samples were collected in the presence of the 1[st] accused; one sample was sent to the public analyst for analysis. On analysis the public analyst reported that the sample contained adulterated vinegar. On that basis a complaint was preferred before Court alleging offence under Section 16(1)(a)(i) and Section 7(i) and (iii) read with Section 2(ia) and (m) of Crl.M.C.4872/2020 3 the Prevention of Food Adulteration Act and Rule 5, Appendix B, A.20.01 and Rule 50 of the Prevention of Food Adulteration Rules, 1955 and the accused persons were summoned. There were three accused in the case which was taken on file as C.C.346/2006 on the file of the Judicial First Class Magistrate's Court, Payyoli. The 1[st] accused, from whom the subject synthetic vinegar was purchased by the Food Inspector, was present in the shop at the time of visit of the Food Inspector; the 2[nd] accused is the licensee of the shop and the 3[rd] accused is the manufacturer of vinegar. 3. But, the petitioner/the 1[st] accused, did not appear before Court and the case against him was split up. Later, it is stated in the statement of facts that the case against him was refiled as L.P. 43/2009. Then he surrendered before the Court and the case was renumbered and taken on file as C.C. 91/2018 and one witness was examined as PW1 on 26.12.2018. But since there was no permanent Magistrate in the court, there was no further progress and due to the restrictions in Covid pandemic, the trial stood stalled. At this stage the Crl.M.C.4872/2020 4 petitioner has approached this Court with the above stated prayer. 4. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. 5. According to the petitioner, in view of the legal position pronounced by the Hon'ble Supreme Court in **Pepsico India Holdings (P) Ltd. v. Food Inspector [(2011) 1 SCC 176]** , the complaint against the accused should fail and the prosecution initiated would not stand since the analysis conducted by the public analyst was not admissible in evidence and no prosecution could be based on such report. According to the petitioner, this has been reiterated by a Division Bench of this Court in **Rasheed v. Food Inspector [2016 (2) KLT 390]** and on that basis a successful prosecution cannot be had and therefore the entire proceedings are sought to be quashed. 6. The learned counsel for the petitioner also took my attention to Annexure-2 order in Crl.R.P. 1244 of 2012. 7. After considering various aspects of the matter, I have no doubt in my mind that the Food Inspector, i.e. the 1[st] respondent, Crl.M.C.4872/2020 5 cannot successfully prosecute the petitioner and it would be a futile exercise to put the petitioner on trial, in the light of the settled proposition of law laid down by the Apex Court in **Pepsico India Holdings (P) Ltd.** , quoted supra. 8. In **Rasheed** 's case, quoted supra, this Court had formulated definite issues. The Division Bench considered the questions as to, could all prosecutions under the Act of 1954 be stifled by raising a contention that the laboratories or methods of analysis were not defined, whether it is proper to hold that since Central Government has not taken steps to effectuate Sec. 23(1A)(ee) and (hh) of the Act of 1954, no prosecution will lie under the Act of 1954 even if it is established that the standards prescribed for various food items have been flouted, and whether the ratio in Pepsico (supra) can be applied to all cases of alleged food adulteration under the Act of 1954 irrespective of the fact whether or not standards have been prescribed for food items. After considering the various aspects in detail, the Division Bench held that whenever an analysis has to be conducted Crl.M.C.4872/2020 6 from a laboratory to find whether the particular sample of item of the particular food article is adulterated, to form the basis for initiation of prosecution under the PFA Act, the report of the analyst in relation to that sample must be one conducted in a laboratory defined under Section 23(IA)(ee). Since no such laboratory was defined till the repealing of the PFA Act wherever an analysis from a laboratory was inevitable for making a report regarding item concerned as adulterated, there cannot be any successful prosecution in the absence of such a report. 9. Answering the next question the Court held that in respect of items of food articles where, for holding that the standard prescribed for the same was flouted or it was not maintained if an analysis from a laboratory is inevitable, in such cases also if the analysis was conducted by the public analyst under the PFA Act in a laboratory not defined in terms of Section 23(1A)(ee), in the light of Pepsico's decision, no prosecution will lie based on a report made after such an analysis. Crl.M.C.4872/2020 7 10. In the light of the above authoritative pronouncements, a report based by the Food Inspector for prosecuting the petitioner cannot be acted upon and therefore there is considerable force in the argument of the learned counsel. 11. For yet another reason, the petitioner is entitled to succeed. Annexure-2 order of this Court in Crl.R.P.No.1244/2012 also buttresses the argument of the petitioner. The revision petitioner is the 2[nd] accused in the said case, who is the father of the petitioner who was the licensee of the shop, faced trial and the trial court convicted him. Appellate court also confirmed the finding. The revision was filed against the concurrent finding of the courts below. Based on Pepsico's case and Rasheed's case, quoted supra, this Court held that such a prosecution is bad and the revision petitioner, the 2[nd] accused, was acquitted by this Court. In paragraph-7 of Annexure-2 order, it has been stated thus: “7. In this case, admittedly, the laboratory for the analysis of food item was not defined and no validated method of analysis of the food item was prescribed as mandated under Section 23 (1-A) (ee) and (hh) of the P.F.A. Act. Therefore, Ext. P15 report of analysis cannot Crl.M.C.4872/2020 8 be acted upon to hold that the food item purchased in this case was adulterated in view of the decision of the Apex court in Pepsico India Holdings (supra). Therefore, the conviction and sentence passed by the courts below under Section 16(1)(a)(i) read with Section 2(ia) (m) of the PFA Act and Rule 5, Appendix B, A.20.01 of the PFA Rules, cannot be sustained and consequently, I set aside the same.” 12. For parity of reasons this decision will be squarely applicable to the case refiled against the petitioner as well. As noticed earlier, he is the 1[st] accused and therefore, a successful prosecution cannot be had. In the above circumstances, the entire proceedings in C.C. 91 of 2018 on the file of the Judicial First Class Magistrate's Court, Payyoli are quashed and the petitioner stands exonerated. The criminal miscellaneous case is allowed as above. **Sd/-** okb/25.11 **K.HARIPAL JUDGE** //True copy// P.S. to Judge Crl.M.C.4872/2020 9 ## **APPENDIX OF CRL.MC 4872/2020** PETITIONER ANNEXURE ANNEXURE 1 COPY OF THE COMPLAINT FILED BY THE FOOD INSPECTOR AGAINST THE ACCUSED ANNEXURE 2 COPY OF JUDGMENT DATED 1.2.2017 IN RL.REV PET 1244/2016