P.R. Santosh Kumar v. Food Inspector, Mobile Vigilance Squad, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** **Crl.MC.No. 2246 of 2016** **CC 542/2015 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE,THALASSERY** ## **PETITIONER/CLAIM PETITIONER:** **P.R.SANTHOSH KUMAR AGED 44 YEARS, S/O. P.K.RADHAKRISHNAN, NARISHANTHARA PARAMBIL, PERANDOOR ROAD, ELAMAKKARA, KOCHI-682 026.** **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENT/COMPLAINANT:** **FOOD INSPECTOR MOBILE VIGILANCE SQUAD, KOZHIKODE-673 001, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM COCHI - 682 031.** ## **OTHER PRESENT:** **SMT MAYA M N PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON 03.04.2019 PASSED THE FOLLOWING:** Crl.M.C.No.2246/2016 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.2246 of 2016 ----------------------------------------Dated this the 3[rd] day of April, 2019 ## **O R D E R** The petitioner is the third accused in the case C.C.No.542/2015 pending before the Court of the Additional Chief Judicial Magistrate, Thalassery. The petition is filed by him to quash the proceedings against him in the aforesaid case. 2. On 23.03.1995, the Food Inspector, Mobile Vigilance Squad, Kozhikode inspected the shop by name 'Shalimar Agencies' at Thalassery. He purchased three bottles of lime pickle from the shop and took them as samples. One of the samples was sent for analysis to the Public Analyst, Pondicherry. The report of analysis received from the Public Analyst, Pondicherry showed that the sample Crl.M.C.No.2246/2016 3 of lime pickle was adulterated. On the basis of the aforesaid report, the Food Inspector filed complaint in the court concerned under Sections 16(1)(a)(i) and 16(1)(a)(ii) read with Section 2(ia)(m) and Section 7(i) and 7(iii) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). The aforesaid case is pending before the Court of the Additional Chief Judicial Magistrate, Thalassery as C.C.No.542/2015. The first accused in the case is the salesman of the shop and the second accused is the licencee of the shop. The petitioner, who is the third accused in the case, is the manager and nominee of the manufacturer of the alleged adulterated lime pickle. 3. Heard learned counsel for the petitioner and the learned Public Prosecutor. 4. Learned counsel for the petitioner contended that the analysis of the food item was conducted in a laboratory which was not notified as per any rule made under the Act and the analysis was made not as per any validated method Crl.M.C.No.2246/2016 4 as per the rules and therefore, the court could not have taken cognizance of the offences alleged against the petitioner. Learned counsel relied upon the decision of the Honourable Supreme Court in **Pepsico India Holdings Pvt. Ltd. v. Food Inspector : (2011) 1 SCC 176** in support of his contention. 5. There is an allegation against the petitioner that, being the manager and nominee of the company who manufactured the adulterated food item, he had conducted trade of such food article without obtaining any licence for conducting such trade. Section 7(iii) of the Act states that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence. It is to be noted that the manufacturer of the food item is MVJ Foods (India) Private Limited. The allegation in the complaint is that no licence had been issued to that company for the year Crl.M.C.No.2246/2016 5 1994-95 from the Cochin Corporation for running the concern. The company is made the fourth accused in the case and it is represented in the case by the petitioner. Rightly or wrongly, the trial court has discharged the fourth accused under Section 245(2) Cr.P.C. Therefore, the only question to be considered in this petition is whether the prosecution against the petitioner for sale of adulterated food is maintainable or not. 6. Section 23(1A) (ee) of the Act provides for formulation of rules defining the laboratories where samples of articles of food or adulterants may be analysed by Public Analyst under the Act. Section 23(1A)(hh) of the Act provides that rules may provide for defining the methods of analysis also. In **Pepsico** (supra), the Apex Court has held that the provisions of Sections 23(1A)(ee) and (hh) of the Act are mandatory and that the non-formulation of Rules under the aforesaid provisions of the Act would be fatal for the prosecution. Crl.M.C.No.2246/2016 6 7. The dictum in **Pepsico** (supra) has been clarified by a Division Bench of this Court in **Rasheed v. Food Inspector : 2016 (2) KLT 390** and it has been held that the aforesaid decision of the Apex Court would apply to all cases of food adulteration under the Prevention of Food Adulteration Act where the prosecution is launched on the basis of the report of a public analyst. It has been held that in such cases where the analysis that culminated in the report was made from a laboratory which was not one defined in terms of Section 23(1A)(ee) of the Act, the prosecution would fail. It has also been held that in order to be reliable and to be taken as the basis for the purpose of launching prosecution, a report by a public analyst must be one made after conducting an analysis in a laboratory defined under Section 23(1A)(ee) of the Act. 8. In the instant case, learned Public Prosecutor has no case that the report of the public analyst is based on an analysis conducted in a laboratory notified or defined under Crl.M.C.No.2246/2016 7 Section 23(1A)(ee) of the Act. The result is that cognizance of the offences could not have been taken by the lower court on the basis of the complaint filed by the Food Inspector which is based on such a report of the public analyst. Taking cognizance of the offences against the petitioner on the basis of the complaint and the further proceedings against him in the case are absolutely unsustainable and are liable to be quashed. 9. Consequently, the petition is allowed. Annexure A complaint and all the proceedings in C.C No. 542 of 2015 on the file of the Court of the Additional Chief Judicial Magistrate, Thalassery insofar as they relate to the petitioner stand quashed. It is made clear that only the proceedings against the petitioner stand quashed as per this order. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.2246/2016 8 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A COPY OF THE COMPLAINT NO.10/95-96 FILED BEFORE THE HON'BLE ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE, THALASSERY.** **ANNEXURE B COPY OF THE MAHAZAR NO.TLY(H)A-31-12479. ANNEXURE C COPY OF THE REPORT OF THE SENIOR PUBLIC ANALYST.** **ANNEXURE D COPY OF THE JUDGMENT DTD.23.4.2015 IN CMP NO.912/2015 IN CC NO.1211/2013 BEFORE THE ADDITIONAL CHIEF JUDICIAL FIRST CLASS MAGISTRATE, THALASSERY.** RESPONDENTS' EXHIBITS NIL TRUE COPY PS TO JUDGE