V.K. Aboobacker and Safety Foods (P) Ltd. v. Food Inspector, Kanhan gad Municipality & State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2014/26TH BHADRA, 1936 Crl.MC.No. 1544 of 2009 ( ) ---------------------------CC 1080/2008 of J.M.F.C-I.,HOSDURG PETITIONER(S)/ACCUSED 2 AND 3 --------------------------------------- 1.V.K.ABOOBACKER, S/O.RAYIN HAJI,MANAGING DIRECTOR SAFETY FOOD (P) LTD. KOTTAKKAL, MALAPPURAM, NOW RESIDING AT XIV/658, VETTANAMKADAVATH HOUSE ALLOOR, MYLADIYAL, JANMENAN THEKKEMURI P.O MALAPPURAM (NOMINEE) 2.SAFETY FOODS (P) LTD, 14/235 & 235 A KOTTAKKAL, MALAPPURAM DISTRICT REP. BY V.K.ABOOBACKER MANAGING DIRECTOR & NOMINEE BY ADV. SRI.T.G.RAJENDRAN ## RESPONDENT(S)/COMPLAINANT/STATE ------------------------------------------ - 1.FOOD INSPECTOR KANHANGAD MUNICIPALITY, KANHANGAD 2. STATE REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-09-2014 ALONG WITH CRL.M.C.NO.1545 OF 2009 & CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.1544/09 ## APPENDIX PETITIONERS' EXHIBITS: ANNEXURE I:TRUE COPY OF THE COMPLAINT FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE, HOSDURG-I. - ANNEXURE II:TRUE COPY OF THE REPORT ISSUED BY THE PUBLIC ANALYST DATED 28.12.2007. - ANNEXURE III:TRUE COPY OF THE ANALYST INFORMATION REPORT DATED 23.7.2008. - ANNEXURE IV:TRUE COPY OF THE INFORMATION FURNISHED TO THE PETITIONER DATED 11.8.2008. - ANNEXURE V:TRUE COPY OF THE LETTER SENT BY THE ASST.DIRECTOR GENERAL TO THE PETITIONER DATED 23.10.2008. - ANNEXURE VI:TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE ASST.DIRECTOR GENERAL DATED 24.5.2008. - ANNEXURE VII:TRUE COPY OF THE MINUTES OF THE FOOD COMMITTEE DATED 6.3.2009. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J.** **========================== CRL.M.C. Nos.1544, 1545, 1546 2651, 2653, 2654, 2655, 2656 2667, 3962, 3963, 3965, 3973 4019 & 4030 OF 2009 ==========================** Dated this the 17[th] day of September, 2014 ## **ORDER** The captioned criminal miscellaneous cases are filed under section 482 of the Code of Criminal Procedure by the same person namely V.K Aboobacker who is the Managing Director and nominee of Safety Foods Pvt. Ltd., the second respondent in all these cases. The petitioners 1 and 2 are arrayed as accused in different proceedings pending before different Judicial First Class Magistrate Courts under different sessions divisions based on complaints filed by different Food Inspectors under section 16 (1a)(i) and (ii) of Prevention of Food Adulteration Act (for short 'PFA Act') and Rules 37(B)(ii) and 49 (19) of Prevention of Food Adulteration Rules (for short 'PFA Rules'). For the sake of convenience, it is only apposite to refer **Crl.M.C.1544/09 & conn.** 2 to the numbers of the Crl.M.C and the numbers of the proceedings as also the name of the Court before which the proceedings are pending, in a tabulated form. |Sl.No.|Case No.|Case No.|Case No. Lower Court Name of Court|Case No. Lower Court Name of Court| |---|---|---|---|---| |1.|Crl.M.C|3963/09|ST 2300/08|JFCM-I Thalassery| |2.|''<br>|3965/09|ST 3759/08|JFCM Kannur| |3|''<br>|3973/09|ST 673/08|JFCM Ponnani| |4|''<br>|3962/09|CC182/09|JFCM Ponnani| |5|''<br>|4019/09|ST 308/09|JFCM Koothuparamba| |6|''<br>|4030/09|CC 314/09|JFCM Malappuram| |7|''<br>|1544/09|CC 1080/08|JFCM-I Hosdurg| |8|''<br>|1545/09|CC 55/08|CJM Kozhikode| |9|''|1546/09|CC 290/08|JFCM-I Perambra| |10|''|2651/09|CC 582/08|JFCM-I Aluva| |11|''|2653/09|ST 1379/08|JFCM Moovattupuzha| |12|''|2654/09|CC 1370/09|JFCM-I Kottarakkara| |13|''|2655/09|CC 514/08|JFCM Chalakkudy| |14|''|2656/09|CC 170/08|JFCM Wadakkancherry| |15|''|2667/09|CC 806/08|JFCM Vadakara| 2. Common issues pose for consideration in all these cases and therefore, it is unnecessary to delve into the facts of each and every case especially taking into account the fact that the difference is only with respect to the fact that the samples of the same product were purchased by different Food Inspectors at different places on different **Crl.M.C.1544/09 & conn.** 3 dates. The first petitioner is the manufacturer of Babyvita. The details of the description in the label have been specifically mentioned in the respective complaint filed against the petitioners. Admittedly, in all such labels, the ingredients of Babyvita are given as 'banana powder, rice (Navara) flour, cardamom, muthanga and sugar'. The Food Inspectors who filed complaints in all these cases purchased samples of Babyvita from different shops after issuing Form VI and complying with the procedural formalities. The sample packets of Babyvitta purchased by the concerned Food Inspectors were sent for for analysis and admittedly, in all these cases, after analysis, issued reports in Form III under Rule 7(3) of the PFA Rules. In some cases, it is reported that the sample analysed did not conform to the standards prescribed for processed cereal based complementary food falling under item A11-02-13-03 of Appendix B of the PFA Rules and not labeled in accordance with Rule 49(19) and picture of an infant has been depicted on the label in contravention of the provisions of Rule 37B (2) of the PFA Rules amounting to misbranding. In **Crl.M.C.1544/09 & conn.** 4 Crl.M.C.Nos.1544, 1545, 1546, 3963, 3965, 3973, 3962, 4019 and 4030 of 2009, it is reported that the samples are adulterated and misbranded owing to the aforesaid reasons. In Crl.M.C.Nos.2651, 2653, 2654, 2655, 2656 and 2667 of 2009, the samples were found misbranded owing to the aforementioned reason in the report. Various contentions have been raised by the petitioners to assail the proceedings initiated based on the complaints preferred by the Food Inspectors which were subsequently, taken on file and numbered as mentioned above. 3. The prime contention of the petitioners is that the article in question is a 'proprietary food' falling under the definition of Rule 37A of the PFA Rules. In the light of the definition of proprietary food given under Rule 37A(2)(b) of the Rules, the learned counsel for the petitioners contended that as long as the purchased sample of the article is a proprietary food the allegation of adulteration owing to the failure to conform to the standards prescribed for processed cereal **Crl.M.C.1544/09 & conn.** 5 based complementary food falling under item A11-02-13-03 of Appendix B of the PFA Rules is unsustainable. This contention is founded on the definition of 'proprietary food' under Rule 37A(2)(b) of the PFA Rules which reads thus:- “37A(2)(b):-'Proprietary food' means a food which has not been standardised under the Prevention of Food Adulteration Rules, 1955.” 4. The petitioners have produced photocopy of the minutes of the 7[th] meeting of the Sub-committee on Nutrition and Foods for Special Dietary Uses, Infant Foods and Infant Milk Substitutes held on 9[th] February, 2009 at the Directorate of General Health Services, New Delhi. It would reveal that the request of the petitioners for approval of label of 'Babyvita Rice Banana' and 'Babyvita Ragi' as proprietary food under Rule 37A of the PFA Rules was considered by the Sub-committee as agenda item No.3. It would also reveal that the committee approved the products and the aforesaid labels subject to certain modifications, precisely five in number, mentioned thereunder. It is produced as Annexure-VII in Crl.M.C.No.1544 of 2009. It is **Crl.M.C.1544/09 & conn.** 6 produced by the petitioners to support the contention that the sample of food purchased by different Food Inspectors which formed the basis for the initiation of prosecution proceedings involved in these cases is 'proprietary food'. The learned Public Prosecutor contended that the samples were purchased and sent for analysis in these cases prior to the said meeting and approval of the aforementioned products as proprietary food and that apart, even going by the decision taken in the said meeting dated 9.2.2009, the petitioners are permitted to label the article in question as proprietary food only with certain modifications specifically mentioned thereunder. The learned Public Prosecutor further contended that the reports of the chemical analysis would reveal that the samples sent for analysis did not conform to the standards prescribed for processed cereal based complementary food under item A11-02-13-03 of appendix B of the PFA Rules, 1955 and in all cases where the reports carry such a finding, the petitioners are charged for adulteration of food. True that, in certain cases mentioned above, owing to the fact that in the labels of the samples the picture of **Crl.M.C.1544/09 & conn.** 7 an infant is depicted, the petitioners are charge sheeted for violation of Rule 37(B)(2) of the PFA Rules and also under Rule 49(19). In other words, such petitioners were charge sheeted for misbranding. In all other cases, the allegations of adulteration and misbranding are made against the petitioners. The learned counsel for the petitioners contends that the public analyst is not empowered to give any opinion as to misbranding and the public analyst is only empowered to make opinion as to whether the sample of food is adulterated or not, necessarily after conducting the prescribed tests. Per contra, the learned Public Prosecutor contended that the action on the part of the public analyst in making opinion with respect to misbranding cannot be said to be without authority of law in view of the fact that he is duty bound to give his report on analysis in Form No.III under Rule 7 (3) of the PFA Rules and the said form makes it mandatory to make finding/opinion. Rule 7(3) reads thus:- “7(3).The public analyst shall, within a period of forty days from the date of receipt of any sample for analysis, send by Registered post or **Crl.M.C.1544/09 & conn.** 8 hand to the Local (Health) Authority a report of the result of such analysis in Form III.” 5. A perusal of Form No.III would reveal that it carries a column whereon the public analyst is bound to enter his opinion with respect to the label. When such a specific column is provided in Form No.III to make entries with respect to the label after conducting analysis, the action on the part of the public analyst in making his opinion/finding in column in Form No.III can only be taken as an action in compliance with the statutory mandate. A perusal of Rule 7(3) of the PFA Rules and Form No.III would undoubtedly reveal that the public analyst is bound to make the report in Form No.III under Rule 7(3) A and that the said form carries such a column. When once it is found that the public analyst was bound to make an entry against the respective column in Form No.III, the contention of the petitioners regarding lack of authority for the public analyst to make opinion regarding label in his report cannot have any legal force. Needless to say that once such an entry is made in Form No.III by the public analyst that can be taken note of by **Crl.M.C.1544/09 & conn.** 9 the officer competent while filing complaint. 6. Now, I will revert to the other contentions based on the claim that the article in question is proprietary food. In sum and substance, the contention of the petitioners is that the article of food, the sample of which was collected, is a proprietary food and therefore, in terms of Rule 37A(2)(b) of the PFA Rules the allegation is absolutely untenable in law and consequently, no prosecution could be launched against the petitioners for failure to conform to the standards prescribed for processed cereal based complementary food. It is further contended that item No.A11-02-13-03 has been substituted by G.S.R. 398(E) dated 3[rd] July, 2006 and as corrected by G.S.R.1(E), dated 2[nd] January, 2007, by G.S.R 267(E) dated 2[nd] April, 2007 for item A.11.02.13.03 (w.e.f. 4.7.2007). Thus, evidently, contention of the petitioners is that the samples purchased and analysed are of article of food which is a 'proprietary food' as defined under Rule 37A (2)(b) of the PFA Rules and therefore, the prosecution proceedings **Crl.M.C.1544/09 & conn.** 10 initiated against them based on the complaints preferred by the Food Inspectors on the basis of report of the public analyst that the sample of food is adulterated owing to the failure to conform to the standard prescribed for processed cereal based complementary food falling under the aforesaid item, are liable to be terminated. The learned Public Prosecutor contended that the ingredients shown in the label would undoubtedly show that the items of processed cereals were also used for the manufacture of the article of food in question. The learned counsel for the petitioners further contended that even if it would be taken that the article of food was manufactured using processed cereal, it is incumbent on the analyst to point out specifically the item of cereal which was used for the manufacture of the item of food and then to report whether the standard prescribed for the same is conformed or not. The learned counsel also relied on the decision of the Hon'ble Apex Court in **Hindustan Lever v. Food Inspector [(2004) 13 SCC 83]** to contend that no prosecution is maintainable on the allegation of failure to conform to the standards **Crl.M.C.1544/09 & conn.** 11 prescribed if the article of food seized and analysed is a proprietary food because as an item of food will be described as proprietary food only if no standard is prescribed for it under the PFA Rules. It is also contended that the name of the food described in the label is only 'Babyvita Natural Food for Your Baby'. However, the learned public Prosecutor contended that the label also carries description 'Babyvita Natural Cereal Nutritional Diet For Your Baby' and the label also would reveal that the ingredients of the Babyvita are 'banana powder, rice (Navara) flour, cardamom, muthanga and sugar'. In view of the rival contentions, I am of the view that the first point to be considered is whether the article of food, the sample of which was purchased and analysed, which formed the basis for the prosecution proceedings in all these cases, is 'proprietary food' or a 'processed cereal based complementary food'. That question cannot be decided based on Annexure-VII which is only a photocopy of the minutes of meeting of the sub committee on Nutrition and Foods for Special Dietary Uses Infant Foods and Infant Milk Substitutes held on 9.2.2009. More so, **Crl.M.C.1544/09 & conn.** 12 it did carry signatures of the participants as also office seal of the committee. Even though in exceptional cases, documents produced in proceedings under section 482, Cr.P.C could be looked into for the purpose of considering whether a complaint is an absolutely baseless one I have no hesitation to hold that Annexure-VII cannot be the basis for abruptly terminating the proceedings against the petitioners. There cannot be any doubt with respect to the question whether article in question is a 'proprietary food' or a 'processed cereal based complementary food' cannot be decided in this proceedings under section 482 Cr.P.C. in view of the factual situations mentioned hereinbefore. I am of the view that it can only be appropriate for the petitioners to take up all such contentions before the respective trial courts. The challenge against the accusation of misbranding was not seriously pressed into service and that again, is a matter to be raised before the concerned trial court, at the appropriate stage. 7. After hearing the rival contentions and the factual and **Crl.M.C.1544/09 & conn.** 13 legal positions as above, I am of the considered view that the prosecution proceedings initiated against the petitioners based on the respective complaints made by the Food Inspectors involved in these cases did not call for an interference at this stage and an abrupt termination of the proceedings pending against the petitioners before the different trial courts, as mentioned above, by invoking the powers under section 482 Cr.P.C. I have already found that the culpability of the petitioners in these cases in the matter of accusation of adulteration depends upon the finding with respect to the question whether the item of food, the sample of which taken for analysis, is 'proprietary food' or 'processed cereal based complementary food'. In such circumstances, it can only be appropriate to dispose of these cases granting liberty to the petitioners in all the criminal miscellaneous cases to raise all available contentions before the trial courts at the appropriate stage. Needless to say that if such contentions, legal and factual, are taken by the petitioners, necessarily, those aspects have to be considered by the trial courts in accordance **Crl.M.C.1544/09 & conn.** 14 with law, at the appropriate stage. In such circumstances, these criminal miscellaneous cases are disposed of leaving the petitioners at liberty to take up all such contentions, legal and factual, before the concerned courts where the matters are pending appropriately and in accordance with law, at the appropriate stage. The learned counsel for the petitioners submitted that owing to the fact that the proceedings are pending before different courts there is likelihood of a conflict in ultimate decisions. It is also submitted that, to avoid multiplicity of proceedings and conflict in decisions, it is only appropriate to invoke the powers of this Court under section 218 of the Cr.P.C. and to order for trying of charges together. After hearing the learned counsel for the petitioners and the learned Public Prosecutor and taking into consideration the fact that in all these cases, besides the petitioners some other persons are also arrayed as accused I do not think that invocation of the said power for the aforesaid purpose is permissible in law. At the same time, I am of the view that in case the petitioners are desirous to move the competent court for the purpose of ordering **Crl.M.C.1544/09 & conn.** 15 joint trial in respect of matters pending before different courts under the same sessions division, it will be open to them to move such petitions before the court of competent jurisdiction. There is no reason to believe that if such a petition is filed before competent courts it will not be considered in accordance with law. Ordered accordingly. ## **Sd/-** ## **C.T. RAVIKUMAR** **(JUDGE)** **spc/** **Crl.M.C.1544/09 & conn.** 16 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **Crl.M.C.1544/09 & conn.** 17