Shamsudheen v. Food Inspector, Thalassery Circle, Thalassery, Kannur District

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: RAJA VIJAYARAGHAVAN.V
Judgment Date: 2016-08-01
Court Decision / Holding: Petition allowed. All further proceedings against the petitioner in L.P.C. No.86 of 2001 on the file of the Additional Chief Judicial Magistrate Court, Thalassery, will stand quashed.
Final Disposition: Petition allowed; proceedings quashed.

Parties to the Case

Appellants / Petitioners

SHAMSUDHEEN, S/O.C.T.K.MOOSA, MANNATH HOUSE, KADACHIRA ADOOR POST, KADAMBOOR, KANNUR DISTRICT - 670 621.

Respondents

FOOD INSPECTOR, THALASSERY CIRCLE, THALASSERY REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

Legal Representation & Advocates

Counsels for Petitioners

• SRI.P.K.RAVISANKAR

Counsels for Respondents

• Public Prosecutor Sri. Amjad Ali

Case Synopsis & Summary

The petitioner, Shamsudheen, the 2nd accused and owner of a grocery shop, challenges the continuance of proceedings initiated under the Prevention of Food Adulteration Act, 1954, regarding a complaint by the Food Inspector, Thalassery Circle. The complaint alleged that 450 grams of coffee sold by the petitioner’s shop was adulterated; the 3rd accused (the manufacturer) stood convicted by a trial court, while the 1st accused (the salesman) initially benefited from the court’s leniency and was later acquitted by this Court on review. The prosecution’s case against the petitioner, who was not present for trial, was split and refiled as a later case. The petitioner contends that, in light of the acquittal of the salesman and the Division Bench decision in Rasheed N.K. v. Food Inspector, Thalassery, Section 23(1A)(ee) and (hh) of the Act are mandatory and the analyst’s report must be from a laboratory defined under these provisions; the 1983 analyst report was not from a defined laboratory, rendering cognizance and continued proceedings an abuse of process. The petitioner relies on Pepsico India Holdings Pvt. Ltd. v. Food Inspector (SC) and Rasheed N.K. (2016) to urge quashing. The court ultimately allows the petition, quashing the LP.C. No.86 of 2001 proceedings,” etc.

Provisions of Law Cited

Section 16(1)(a)(i) read with section 7(1) and 2(1)(a) of the Prevention of Food Adulteration Act, 1954Section 23(1A)(ee)Section 23(1A)(hh)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, in view of the acquittal of the salesman and the Division Bench decision in Rasheed N.K. v. Food Inspector, the prosecution under the PFA Act is unsustainable against the proprietor; the analysis relied upon for cognizance was not from a defined laboratory under S.23(1A)(ee)/(hh); the mandatory nature of these provisions renders continued proceedings an abuse of process, and the proprietor should not be put to trial where the evidencechain is defective and the previous acquittal underscores lack of basis for prosecution.

Contentions of Respondents

The respondent-Inspector submits that the proceedings were properly instituted under the PFA Act and should not be quashed on technical grounds; the Magistrate’s and Sessions Court’s judgments, and the factual sequence of the case, do not render cognizance improper; the evidence and reports should be weighed in trial, not at the habeas corpus stage.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Pepsico India Holdings Pvt. Ltd. v. Food Inspector and another	2010 (4) KLT 706 (SC)	Positive	Cited as authority for treating sections 23(1A)(ee) and (hh) as mandatory, and for invalidating prosecutions that do not comply with these requirements.
Rasheed N.K. v. Food Inspector, Thalassery	2016 (1) KLD 704	Positive	Div. Bench held that analyst reports must be from a laboratory defined under S.23(1A)(ee); if not, cognizance cannot be sustained, supporting quashing of proceedings.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 1ST DAY OF AUGUST 2016/10TH SRAVANA, 1938** **Crl.MC.No. 4855 of 2016 () --------------------------LPC NO. 86 OF 2001 IN CC.181/1983 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY, KANNUR DISTRICT ------------** **PETITIONER(S)/2ND ACCUSED:-:** **-------------------------** **SHAMSUDHEEN, S/O.C.T.K.MOOSA, MANNATH HOUSE, KADACHIRA ADOOR POST, KADAMBOOR, KANNUR DISTRICT - 670 621.** **BY ADV. SRI.P.K.RAVISANKAR** **RESPONDENT(S)/COMPLAINANT:-:** **--------------------------** **FOOD INSPECTOR, THALASSERY CIRCLE, THALASSERY REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 4855 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** |**PETITIONER(S)' EXHIBITS :**|**PETITIONER(S)' EXHIBITS :**| |---|---| |**-----------------------**|| |**ANNEXURE A:**|**TRUE COPY OF THE JUDGMENT DATED 11.10.1985 IN**| ||**C.C.181 OF 1983 ON THE FILE OF ADDITIONAL**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT-I,**| ||**THALASSERY.**| |**ANNEXURE B:**|**TRUE COPY OF THE JUDGMENT DATED 31.03.12 IN**| ||**CRL.R.P.NO.386 OF 1990 OF THIS HONOURABLE**| ||**COURT.**| |**RESPONDENT(S)'**|**EXHIBITS**<br>**:**<br>**NIL.**| **//TRUE COPY// P.S. TO JUDGE** ## **bp** **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.4855 of 2016 ----------------------------------------Dated this the 1[st] day of August, 2016** ## **O R D E R** 1.A complaint was filed by the Food Inspector, Thalassery against the petitioner and two others alleging commission of offence punishable under sections 16(1)(a)(i) read with section 7(1) and 2(1)(a) of the Prevention of Food Adulteration Act, 1954. The petitioner is the owner of a grocery shop of which the 1[st] accused in the said complaint was a salesman. 2.The prosecution allegation is that the Food Inspector had purchased 450 grams of coffee, which when sent to the public analyst, was found adulterated. The 3[rd] accused in the aforesaid complaint was the manufacturer of the food item. The case was Crl.M.C.4855/2016 2 proceeded with and by Annexure-A judgment dated 11.10.1985, the learned Magistrate had extended the benefit of doubt to the manufacturer and convicted the 1[st] accused, who was the salesman of the shop. The petitioner was not available for trial. The case against him was split up and refilled. 3.Challenging the finding of guilt, the 1[st] accused salesman had preferred an appeal before the learned Sessions Judge as Crl.Appeal No.290 of 1985. As per judgment dated 31.3.1990, the said appeal was dismissed and the findings of the learned Magistrate was confirmed. Against the above finding, the 1[st] accused had approached this Court by filing Crl.Revision Petition No.386 of 1990. As per judgment dated 18.9.1992, this Court held that the salesman was entitled to the benefit of warranty and acquitted the said accused. The said judgment has become Crl.M.C.4855/2016 3 final. 4.It is submitted by the learned counsel that the petitioner, who is arrayed as the 2[nd] accused, was out of country in connection with his employment. The case against him was initially split up and re-filed as 276 of 1985. Thereafter it was transferred to the long pending register and it is presently numbered as L.P.C. No.86 of 2001. According to the learned counsel in view of Annexure-B judgment of this Court, acquitting the salesman of the shop, the proceedings against the petitioner herein, who is the owner of the grocery shop is nothing but an empty formality. It is further pointed out that no purpose will be served by directing the petitioner to undergo the ordeal of trial. 5.The learned counsel would also submit relying on the ratio of the judgment of the Apex Court in **Pepsico India Holdings Pvt. Ltd. v. Food Inspector and another** Crl.M.C.4855/2016 4 [2010 (4) KLT 706 (SC)] and that of a Division Bench of this Court in **Rasheed N.K. V Food Inspector, Thalasserry** (2016 (1) KLD 704) to contend 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. It is forcefully urged that method of analysis 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.Heard the submissions of the learned counsel as well as the Public Prosecutor. 7.It is discernible from Annexure-B judgment that the 1[st] accused who was the salesman of the said shop room was granted the benefit of warranty and was acquitted by this Court. The petitioner being the owner of the Crl.M.C.4855/2016 5 grocery shop is entitled to avail the benefit of the said finding as well. 8.More over, the Division Bench in **Rasheed N.K.** ( Supra), after interpreting the various provisions of the PFA Act , 1957, 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 prosecution, the analysis of the food has to be conducted in a laboratory defined under S.23(1A)(ee) of the Act. In the case on hand the report is dated 10.2.1983 which in other words means 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. In the above facts and circumstances, I am of the view that the continuation of proceedings as against the petitioner is nothing but an abuse of the process of law. Crl.M.C.4855/2016 6 Accordingly, this petition is allowed. All further proceedings against the petitioner in L.P.C.No.86 of 2001 on the file of the Additional Chief Judicial Magistrate Court, Thalassery, will stand quashed. **Sd/-** **RAJA VIJAYARAGHAVAN.V. JUDGE** vps