P.P. Abdurahiman v. State of Kerala & Food Inspector

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934 Crl.MC.No. 574 of 2007 ( ) -------------------------STC.1136/2005 of ADDL.C.J.M.,THALASSERY PETITIONER(S)/1ST ACCUSED: ------------------------- P.P.ABDURAHIMAN, AGED 53 YEARS, S/O.MOHAMMED, RESIDING AT "EENAS", P.O.KADIROOR KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN COMPLAINANT(S)/STATE & COMPLAINANT: ----------------------------------- ## 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. THE FOOD INSPECTOR, - THALASSERY CIRCLE, THALASSERY. BY ADV. PUBLIC PROSECUTOR SMT. JASMINE V.H. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. **Crl.M.C. No. 574 of 2007** .................................................. ## Dated: 18-09-2012 ## JUDGMENT The first accused in S.T. Case No. 1062 of 2006 of Addl. Chief Judicial Magistrate, Thalassery has filed this petition to quash the proceedings initiated against him in the aforesaid case. The case against this petitioner and one Hamza was filed before that Court as S.T. Case No. 1136 of 2005 alleging commission of offences under Sections 16(1) a (i) r/w. S. 7(i) of Prevention of the Food Adulteration Act, 1954 ( “P.F.A. Act” for short) and item No. A.18.06.12 of Appendix-B of Prevention of Food Adulteration Rules, 1955, “ P.F.A. Rules” for short). The petitioner was then absconding and so the case against him was split up. The other accused who faced the trial was ## **Crl.M.C. No. 574/07** -:2:- acquitted by the learned Magistrate under Section 255 (1) Cr.P.C. 2. The case of the prosecution is that the Food Inspector purchased 1 kgm. of bengalgram dhall from the petitioner herein. The 2[nd] accused was stated to be the licensee of that shop. In Form III report the Public Analyst certified that the sample did not conform to the standards prescribed for bengalgram dhall (dal chana) as per item No. A.18.06.12 of Appendix - B of P.F.A Rules. 2. It is argued by Sri.Peethambharan, the learned counsel for the petitioner that the 2[nd] accused who faced the trial was acquitted by the learned Magistrate accepting the contention advanced by the accused that the Food Inspector did not add any preservative and so for the same reason this petitioner is entitled to be acquitted and, if so, the proceedings initiated against this petitioner is to be quashed, for, according to the petitioner, no purpose would be served by asking the petitioner to face trial. ## **Crl.M.C. No. 574/07** -:3:- 3. The learned Public Prosecutor submits that only because the 2[nd] accused who faced the trial was acquitted by the learned Magistrate, the proceedings against this petitioner cannot be quashed. It is further submitted that Rule 19 of P.F.A Rules which deals with the addition of preservatives to samples is only directory and not mandatory as the word used is “May”. Rule 19 reads thus:- _**“19. Addition of preservatives of samples** - Any person taking a sample of any food for the purpose of analysis under the Act_ _**may** add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis”._ 4. It is also argued that the classification of preservatives dealt with in Rules 53 and 54 and also Class II preservatives mentioned in Rule 55 do not make it mandatory that any particular preservatives should be added. Sri. Peethambharan, the learned counsel for the petitioner has relied upon the decision of the Division Bench in Narayanan Nair v. Food Inspector - 2003 (2) KLT 419 to fortify his ## **Crl.M.C. No. 574/07** -:4:- submission that though Rule 19 is only directory and not mandatory, it puts an obligation on the Food Inspector to add preservatives and if it is not added, it is for the Food Inspector to prove that non addition of preservatives has not affected the quality of sample at the time of analysis. The duty of the Food Inspector is only to maintain and preserve the samples in good and suitable condition till analysis. It is permissible for the Food Inspector to add preservative so as to prevent deterioration of the food article. The learned counsel for the petitioner submits that the percentage of weevilled grains prescribed as per the standard is not more than three percent by count but in Form III report it was noted that the percentage was 4.30 by count. It was also noted that as per the standard uric acid should not be more than 100 milligram per kilogram . As per Form III report it was noticed that 240 milligram of Uric Acid was detected per kilogram. Therefore, because of those two variations, it was certified that the sample did not conform to the standard prescribed. ## **Crl.M.C. No. 574/07** -:5:- According to the petitioner, there is no case for the Food Inspector that he had added any preservatives at the time of sampling to keep the food article in its original position. But it is pertinent to note that there is nothing in evidence including Form III report to suggest that the sample was unfit for analysis. It is also important to note that the petitioner did not file any application under Section 13 (2) of the P.F.A. Act to forward part or parts of the sample kept by the Local (Health) Authority to the Central Food Laboratory. Nonaddition of preservatives could have been a ground had it been a case where the petitioner had requested the second sample to be sent to the Central Food Laboratory and at that point of time it was reported that 2[nd] sample was unfit for analysis, the prosecution contends. Therefore, the contention that the proceedings as against this petitioner should be quashed because the 2[nd] accused was acquitted, is unsustainable. 5. The intention of Rule 19 is that the quality of food ## **Crl.M.C. No. 574/07** -:6:- article taken for sample is not further deteriorated. It is for the accused to establish that any prejudice was caused to him because of non- addition of preservative. If the food article was not unfit for analysis, it cannot be readily assumed that any prejudice was caused to the accused because preservatives were not added. As such non-compliance of Rule 19 is not fatal, the prosecution contends. Had there been two reports showing different percentage of weevilled grains, it could have been argued that the living insects might have become increased or infestation might have occurred after sampling was done. That is not the position here. There is nothing on record to show that deterioration took place after sampling or that insects grew after sampling so as to cause prejudice to the accused. If there is evidence to show that sample remained fit for analysis, accused can in no way be prejudiced as has been held by the Apex Court in T.V. Usman v. Food Inspector, Tellicherry - AIR 1974 SC 1818. It has to be found at the time of trial whether the ## **Crl.M.C. No. 574/07** -:7:- sample remained with the same purity and the same quality. Since those are matters to be considered at the time of trial, I find no reason to quash the proceedings by invoking the jurisdiction under Sec. 482 of Cr.P.C. This petition is, accordingly, dismissed. Dated this the 18[th] day of September, 2012. Sd/-N.K. Balakrishnan, Judge. ani. /true copy/ P.S. to Judge