M. Sheriff Rehman and Zakir Hussain v. State of Kerala and Food Inspector, Thrikkovilvattom Panchayat

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 ## Crl.MC.No. 4644 of 2013 () --------------------------CC 1197/2001 of J.M.F.C.-II, KOLLAM CRA 355/2008 of III ADDL.D.C., KOLLAM PETITIONERS/ACCUSED: --------------------------------- 1. M. SHERIFF REHMAN - MANAGING DIRECTOR, ALLIANCE GRAIN PRODUCTS (P) LTD., KOLLAM. 2. ZAKIR HUSSAIN DIRECTOR, ALLIANCE GRAIN PRODUCTS (P) LTD., KOLLAM ## BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2. FOOD INSPECTOR, THRIKKOVILVATTOM PANCHAYAT, KOLLAM. BY PUBLIC PROSECUTOR SRI. V.H.JASMINE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4644 of 2013 () --------------------------- ## APPENDIX ## ANNEXURES ----------------------- ANNEXURE A1: TRUE COPY OF THE COMPLAINT IN C.C.1197/2001 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT II, KOLLAM. ANNEXURE A2: CERTIFIED COPY OF THE JUDGMENT DATED 30.6.2008 IN C.C.1197/2001 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRTATE'S COURTII, KOLLAM. ANNEXURE A3: TRUE COPY OFTHE JUDGMENT DATED 14.1.2011 IN CRL.APP.355/2008 ON THE FILES OF THE 3RD ADDITIONAL SESSIONS COURT, KOLLAM. //True Copy// P.S.To Judge ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C.4644 of 2013 - - - - - - - - - - - - - - - - Dated 8[th] April, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioners are accused Nos.1 and 5 in C.C.1432 of 2008 on the file of the Judicial Magistrate of First Class-II, Kollam. - 2.The said proceeding originated on the basis of a - complaint filed by the Food Inspector, Thrikkovilvattom Panchayat alleging offence punishable under section 16 (1-A) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “PFA Act” for brevity). - 3.The allegation in the complaint is that on 18.1.2000, the Food Inspector, - Thrikkovilvattom Panchayat inspected the premises of the 7[th] accused and purchased 900 grams of Rava (Suji) for the purpose of **Crl.M.C.4644/13** 2 analysis. The food item was found insect infested on analysis and therefore, unfit for human consumption. The accused No.1 was the licensee of the 7[th] accused Company, the 2[nd] accused was the Manager and nominee and the accused Nos.3 to 6 were the Directors of the Company. After complying with the formalities, prosecution was launched against the company and its Directors. - 4.Accused Nos.3 and 4 in the complaint were reported dead and proceedings as against them stood abated. The petitioners herein did not appear before the trial Court and the proceedings against them was re-filed. - 5.In short, only the 2[nd] accused who was the nominee-cum-Manager of the shop and the 6[th] accused who was one of the directors, faced trial in C.C.No.1179 of 2001. **Crl.M.C.4644/13** 3 6. The learned Magistrate after taking evidence came to the conclusion that there was a valid nomination in the name of the 2[nd] accused under section 17 (2) of the Act. Taking note of the fact that the complaint was silent about the involvement of any of the directors in the day-to-day affairs of the 7[th] accused company, the accused No. 6 was acquitted. Insofar as the 2[nd] accused /nominee, was concerned, he was found liable for the sale of adulterated food articles to PW1 and was accordingly convicted. 7.Against the above finding of guilt, conviction and sentence, the 2[nd] accused preferred Crl.Appeal.355 of 2008 and as per judgment dated 14.1.2011, the learned Sessions Judge came to the conclusion that there was clear violation of the mandatory provisions under Rule 14 of the PFA Rules. Holding so, the 2[nd] **Crl.M.C.4644/13** 4 accused was acquitted. The same has become final. - 8.The proceedings against the petitioners herein were re-filed and the same is now pending as - C.C.No.1432 of 2008 before the learned Magistrate. - 9.In this petition, the proceedings pending as aforesaid are sought to be quashed on the ground that the continuance of the same before the learned Magistrate will not serve any purpose in view of the conclusive findings arrived at by the Court below. In other words, the contention is that the substratum of the case against the petitioners is gone and directing them to undergo the ordeal of a trial will result in travesty of justice. - 10.I have heard the learned Senior counsel appearing for the petitioners as well as the **Crl.M.C.4644/13** 5 learned Public Prosecutor. - 11.The learned Senior counsel would submit relying on the judgments rendered by trial court as well as the appellate court, which are produced as Annexures-A2 and A3 that nothing worthwhile could be achieved by prosecuting the petitioners. Valid nomination in the name of the 2[nd] accused who was acquitted by the learned Sessions Judge would by itself take them out of liability under the Act. The learned Senior counsel also highlighted the conclusions arrived at by the learned Magistrate that the complaint was silent as regards the complicity of the directors. The learned Senior counsel relied on the judgments in **Govinda Rao v. Food Inspector (2008 (1) KLT 896)** and **Persetti India Ltd and Another v. Food Inspector and Others (1998 (2) KLJ 679)** **Crl.M.C.4644/13** 6 to advance his contentions. - 12.The second limb of the argument of the learned Senior counsel is that the appellate Court, while acquitting the nominee, had concluded that the sampling of the food item violated Rule 14 of the PFA Rules. According to the learned counsel, it was on the basis of the said finding that the learned Sessions Judge had held that even the nominee could not be found guilty for violating provisions of the Act and he was acquitted. - 13.The learned Public prosecutor would oppose the contentions and would submit that the prosecution proceedings cannot be short circuited and these are matters that are to be raised by the petitioners before the trial Court itself. According to the learned Public Prosecutor, this is not a case where the **Crl.M.C.4644/13** 7 inherent powers of this Court is to be exercised to quash the criminal proceedings at the threshold itself. 14.I have considered the rival submissions. 15.The prosecution was under the Prevention of Food Adulteration Act and the company by name M/s. Alliance Grains Products Pvt.Ltd., Thattamala, and its Directors were arrayed as the accused. The learned Magistrate had concluded in Annexure-A2 judgment that the nomination of the 2[nd] accused was valid and proper and in view of the above, the Directors of the company could not be prosecuted. The learned Magistrate had also taken note of the fact that the complaint was silent about the involvement of any of the Directors in the day to day conduct of the business of the company. Insofar as the nominee is concerned, the 8 ## **Crl.M.C.4644/13** - learned Sessions Judge had held that the Food Inspector had violated the mandatory provisions under Rule 14 as regards sampling and sealing. It was basing on the above that the appellant Court had come to the conclusion that the infraction of the mandatory provision under Rule 14 of the PFA Rules is fatal to the prosecution and the 2[nd] accused nominee is entitled to an acquittal. I am of the view that the concluded findings of the learned Magistrate and the learned Sessions Judge would knock the bottom of the prosecution case. - 16.I find merit in the submission of the learned counsel appearing for the petitioners that in view of the above facts, the continuation of prosecution of the petitioners on the ground that they have violated the provisions of S.16 **Crl.M.C.4644/13** 9 (1-A)(i) of the PFA Act cannot be sustained. Even if the prosecution is continued and the petitioners are made to face the trial, it would only amount to wasting precious judicial hours. 17.In view of the above, I am of the view that the petitioners are entitled to succeed and all further proceedings in C.C.No.1432/2008 on the files of the Judicial First Class Magistrate Court – II, Kollam are quashed. Sd/- ## **RAJA VIJAYARAGHAVAN.V. Judge** Mrcs/Bb 8.4.2016 //True Copy// P.S.To Judge