Rajeev v. Food Insector Mobile Vigilance Squad, Kozhikode and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** ## **Crl.MC.No. 1294 of 2013** **AGAINST THE ORDER/JUDGMENT IN ST 63/2012 of C.J.M.,KOZHIKODE** ## **PETITIONER/S:** **RAJEEV, AGED 38 YEARS S/O.K KRISHNAN, VENDOR, EFC, RC ROAD, CALICUT, R/A.21-2603,PANNIYANKARA, CALICUT-673003** **BY ADVS. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY** ## **RESPONDENT/S:** - **1 FOOD INSECTOR MOBILE VIGILANCE SQUAD, KOZHIKODE, CALICUT CORPORATION, 673001** **2 STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUALM** ## **OTHER PRESENT:** **M.K PUSHPALATHA,PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 1294 of 2013 -2- ## **ORDER** The petitioner is the first accused in S.T. No. 63 of 2012 on the files of the court of the Chief Judicial Kozhikode. The offences are Magistrate, alleged punishable under Sections 2(ia) (m) and 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the P.F.A. Act') and Rule 5 Appendix B.A. 16.27 of the Prevention of Food Adulteration Rules, (for short “the PFA Rules”). ## 2. Heard. 3. The petitioner has filed this Crl. M.C. praying for quashing the complaint and further proceedings against the Crl.MC.No. 1294 of 2013 **==> picture [220 x 9] intentionally omitted <==** petitioner in the above case. 4. The prosecution allegation is that on 4-7-2207 at 10 a.m., the Food Inspector purchased 750 gms of tomato ketchup from the hotel, wherein the petitioner was the Manager and the second accused was the nominee. After complying with the legal formalities, one sample was sent for analysis to the Public Analyst. The Public Analyst issued certificate of analysis, which would show that the sample did not conform to the standard prescribed for tomato ketchup and therefore, it was adulterated. Thereafter, on the request of the petitioner, the 2[nd] sample was sent to the Central Food Laboratory for analysis. Annexure- A5 is the report of analysis. Annexure-A5 Crl.MC.No. 1294 of 2013 would show that the sample analysed in the Laboratory did not conform to the standards for tomato sauce or ketchup as per the PFA Rules. 5. The learned counsel for the petitioner has argued that since no laboratory for the analysis of the food item was defined and no validated method of analysis was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the P.F.A. Act, Annexure-A5 report of the Central Food Laboratory, cannot be acted upon to hold that the food item purchased by the Food Inspector was adulterated. The learned counsel for the petitioner relied on the decision of the Apex Court in Pepsico India Holdings (P) Ltd. v. Food Inspector [(2011) 1 SCC 176] to Crl.MC.No. 1294 of 2013 -5- buttress his argument. 6. It was held by the Apex Court in Pepsico India Holdings (supra) that since the Laboratories were not notified and the tests conducted by such laboratories were not admissible in evidence, no prosecution could be based on such report. 7. The Division Bench of this Court in Rasheed v. Food Inspector [2016 (2) KLT 390] considered the above question on a reference by a learned Single Judge. The Division Bench in Rasheed (supra) held that if an analysis is required to initiate prosecution, there should be notified laboratory and validated method of analysis as mandated Crl.MC.No. 1294 of 2013 -6under Section 23(1-A)(ee) and (hh) of the P.F.A. Act for a successful prosecution as held by the Apex Court in Pepsico India Holdings (supra). 8. 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, Annexure-A5 report of analysis cannot 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, no successful prosecution can be maintained against the petitioner. Consequently, no purpose will be served even if Crl.MC.No. 1294 of 2013 -7- the prosecution against the eptitioner is permitted to be continued. In the said circumstances, I am inclined to quash the final report and further proceedings against the petitioner in S.T. 63 of 2012 on the files of the court below, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. It is ordered accordingly. In the result, this Crl.M.C. stands allowed . Dated this the 23[rd] day of January, 2019. **Sd/- B.SUDHEENDRA KUMAR, JUDGE** /true copy/ P.S. to Judge Crl.MC.No. 1294 of 2013 -8- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 ANNEX.1:-TRUE COPY OF THE COMPPLAINT FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE EXHIBIT P2 ANNEX.2:-TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN CRMC NO 988 OF 2011 EXHIBIT P3 ANNEX.3:-CERTIFIED COPY OF THE PROCEEDNGS IN CC NO 210 OF 2007 BEFORE THE CJMC, KOZHIKODE.**