Ramnath V and M/S Cadbury India Limited v. State of Kerala, Food Inspector Angamaly Municipality, Sri Ciji Jose, and Sri K.P. Jose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** **Crl.MC.No. 5907 of 2016 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 269/2004 of J.M.F.C.-II, ALUVA DATED** **PETITIONER(S)/ACCUSED NO.3 & 4.:** **-------------------------------** ## **1. RAMNATH V** **BRANCH MANAGER, M/S. CADBURY INDIA LIMITED, CHENNAI BRANCH (NOMINEE OF M/S. CADBURY INDIA LID, REGISTERED OFFICE 19, BHULABHAI ROAD, MIMBAI- 400026)** ## **2. M/S CADBURY INDIA LIMITED,** **19, BHULABHAI DESAI ROAD, MUMBAI, PIN- 400026, REPRESENTED BY V. RAMNATH A3,** **BRANCH MANAGER.** **BY ADVS.SRI.V.B.UNNIRAJ SMT.R.S.GEETHA SMT.K.SEEMA SMT.P.ANITHA** ## **RESPONDENT(S)/STATE AND COMPLAINANT AND ACCUSED 1 & 2:** **------------------------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031.** **2. FOOD INSPECTOR ANGAMALY MUNICIPALITY, ANGAMALY- 683572.** **3. SRI. CIJI JOSE, AGED 27 YEARS, S/O. K.P. JOSE, KOORAN KALLOOKARAN HOUSE, KIDANGOOR P.O., ANGAMALY (SALESMAN OF M/S. KALLOOKARAN AGENCIES, ANGAMALY, PIN- 683 572.** **CONTD...** **Crl.MC.No. 5907 of 2016 () ---------------------------** **==> picture [23 x 9] intentionally omitted <==** **4. SRI. K.P. JOSE, KOORAN KALOOKARAN HOUSE, KIDANGOOR P.O., ANGAMALY- 683 572.** ## **R BY PUBLIC PROSECUTOR, SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03-10-2016 ALONG WITH CRL.M.C. NO. 5901/16, 5906/16 & 5909/16, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CONTD....** ## **:3:** **Crl.MC.No. 5907 of 2016 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------ANNEXURE A1 THE CERTIFIED COPY OF THE CC NO. 269/2004 FILED BY THE 2ND RESPONDENT AGAINST THE PETITIONER BEFORE JFCM II ALUVA.** **ANNEXURE A2 A TRUE COPY OF THE MAHAZAR PREPARED BY THE FOOD INSPECTOR ON 21.10.2003, BUILDING NO. IV/320 OF ANGAMALY MUNCIPALITY.** **ANNEXURE A3 A TRUE COPY OF THE REPORT OF THE PUBLIC ANALYST DATED 19.11.2003.** **ANNEXURE A4 A TRUE COPY OF THE GAZETTE NOTIFICATION G.O (P) NO. 205/2001/H & FWD DATED 31.07.2001.** **ANNEXURE A5 A TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT OF KARNATAKA UNDER SECTION 20(1) OF PFA ACT.** **ANNEXURA A6 A TRUE COPY OF THE JUDGMENT IN CRL. MC NO. 2615/2014** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** **//TRUE COPY//** **P.A. TO JUDGE** ## **SKS** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No. 5907 of 2016 ----------------------------------------Dated this the 3[rd ] day of October, 2016** ## **O R D E R** - 1.This petition is filed under Section 482 of the Code of Criminal Procedure. - 2.The petitioners herein are the accused Nos. 3 and 4 in C.C.No. 269 of 2004 on the file of the Judicial First Class Magistrate - II, Aluva. They are being proceeded against for having committed offence punishable under section 2 (ia) (a), (e) & (f) , 7(i) & (v), 16(1-A) (i) & (ii), 17 (1) (a) (i) & (b) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act 37 of 1954 ”) and B.A.25-03 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as “PFA rules 1955”) - 3.The prosecution allegation as is borne out from Annexure A 1 complaint is that on 21.10.2003, the Food Inspector, Aluva Circle inspected building No. IV-320 of Angamaly where the 2[nd] accused K.P. Jose was conducting business Crl.M.C. No. 5907 of 2016 2 in the name and style M/s Kallookaran Agencies and took samples of “Cadbury Dairy Milk” Chocolate in accordance with the Act and Rules. One of the samples seized were forwarded to the Public Analyst and by Annexure 3 report in Form No III, it was found that the sample contained uric acid to an extent of not less than 71 ppm and was therefore adulterated. Annexure A 1 complaint was filed before the Court below arraying the vendor as the 1[st] accused , the licensee of the said shop as the 2[nd] accused , the manufacturer of the food item as the 4[th] accused and the nominee of the manufacturer as the 3[rd] accused . - 4.I have heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. - 5.The learned counsel submits that a Division Bench of this Court in **Rasheed N.K. v. Food Inspector** , **Thalassery** (2016 (1) KLD 704) after relying on the ratio of the judgment of the Apex Court in **Pepsico India Holdings Pvt. Ltd v. Food Inspector and another** [2010 (4) KLT Crl.M.C. No. 5907 of 2016 3 - 706 (SC)] **,** has laid down that Section 23 (1A) (ee) and (hh) of the Prevention of Food Adulteration Act are mandatory, and any prosecution instituted under the Act, in violation of the said provisions cannot be sustained. According to the learned Counsel , the method of analysis adopted by the Public Analyst is not a validated one as prescribed under S.23 (1A) (hh) and the laboratory where the analysis was conducted was not a defined one for such examination under S.23 (1A) (ee) of the Act. - 6.The learned Public Prosecutor would counter the submissions and would content that the principles laid down cannot be extended to the case on hand . It is further submitted that these aspects are to be raised before the trial Court and sought for dismissal of the petition . - 7.I have considered the rival submissions . Admittedly , the complaint was laid solely on the strength of the AnnexureA3, report of the Public Analyst. The said report is dated Crl.M.C. No. 5907 of 2016 4 19.11.2003. It was found that the food item is adulterated as per Section 2 i (ia) (e) and (f) of Act 37 of 1954. The Division Bench in **Rasheed N.K.** (Supra), after interpreting the various provisions of Act 37 of 1954, in line with the pronouncement of the Apex Court in **Pepsico Case** (Supra), has held that in order for the Analyst report to become the basis for launching a successful prosecution, the analysis of the food has to be conducted in a laboratory defined under S. 23 (1A) (ee) of the Act. 8.It is beyond cavil that Act 37 of 1954 was repealed as per the notification issued by the Central Government dated 04.08.2011 by virtue of powers under S. 97 (1) of the Food Safety and Standards Act, 2006 and the same had come into force on and from 05.08.2011. It has been laid in **Rasheed N.K.** (Supra) that till repealing of Act 37 of 1954 no laboratory had been defined in terms of S.23 (1A) (ee) of the Act 37 of 1954. In the case on hand the report is dated 19.11.2003, which in other words means Crl.M.C. No. 5907 of 2016 5 that the laboratory where the analysis was conducted could not have been a defined lab. If that be the case the taking of cognizance on the basis of the said report cannot be sustained. The continuance of prosecution on the basis of Annexure-A1 complaint cannot be sustained as it is nothing but an abuse of process of law. In the result, this petition is allowed and all proceedings pursuant thereto against the petitioners in C.C. No.269 of 2004 on the file of Judicial First Class Magistrate Court-II, Aluva are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V. JUDGE** SKS //TRUE COPY// P.A. TO JUDGE