V.P. Abhilash v. State of Kerala and The Food Inspector, Vigilance Squad, Kozhikode-9

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY, THE 21ST DAY OF MAY 2018 / 31ST VAISAKHA, 1940 Crl.MC.No. 152 of 2014 AGAINST THE ORDER/JUDGMENT IN ST 1190/2005 of J.M.F.C.-I, KOZHIKODE ## PETITIONER(S)/10TH ACCUSED: V.P. ABHILASH, AGED 38 YEARS, S/O.SHANMUGHAN, VALIPARAMBIL HOUSE, EDAMUTTOM P.O., VALAPPAD, THRISSUR DISTRICT. BY ADV.SRI.G.SREEKUMAR (CHELUR) ## RESPONDENTS/STATE OF KERALA AND THE COMPLAINANT: 1. STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM - 682 031. 2. THE FOOD INSPECTOR, VIGILANCE SQUAD, KOZHIKODE-9. R BY SMT. REKHA C NAIR, SR. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.12.2017, THE COURT ON 21-05-2018, THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 152 of 2014 () **APPENDIX** PETITIONER(S)' EXHIBITS: ANNEXURE-I: A TRUE COPY OF THE COMPLAINT FILED IN S.T.NO.1190 OF 05 DATED 6.6.02 ON THE FILE OF THE J.F.C.M.-I, KOZHIKODE. ANNEXURE-II: A TRUE COPY OF THE CASH BILL DATED 21.9.01. ANNEXURE-III: A TRUE COPY OF THE REPORT OF THE PUBLIC ANALYST DATED 30.11.01. ANNEXURE-IV: A TRUE COPY OF THE JUDGMENT IN S.T.NO.1190/05 DATED 24.8.07 ON THE FILE OF THE J.F.C.M-III, KOZHIKODE. RESPONDENTS' EXHIBITS: NIL /True Copy/ PS to Judge. rv ## **ANNIE JOHN, J.** **-------------------------------Crl. M.C. No. 152 of 2014 ---------------------------------Dated this the 21[st] day of December, 2017.** ## **ORDER** The petitioner is the 10[th] accused in S.T. No. 1190 of 2005 on the file of the Judicial First Class Magistrate-I, Kozhikode on the basis of a complaint instituted by the second respondent against 10 persons. The offences alleged against the petitioner are under Section 2(ia) (a) r/w Sections 16(1)(a)(i) and 7(i) and A-17.II Appendix B of Rule 5 of the Prevention of Food Adulteration Act, 1954 ('the Act' for short). 2. The case of the prosecution is that on 4.10.2001, at about 11.45 a.m., the Food Inspector conducted an inspection at the premises of M/s. Panniyankara Oil Mills, Cherooty Road, Kozhikode and purchased 450 milli litres of gingelly oil and the sample was sent to the Public Analyst for analysis. As per Annexure III report of the Public Analyst, the sample does not conform to the standards prescribed for the oil in question. Annexure I is the copy of the complaint filed as S.T. No. 1190 of 2005 dated 06.06.2002. The second respondent has produced Annexure II purchase bill to establish that the substance in question was purchased from the accused. The gingelly oil was seized on 24.10.2001 and it was purchased by the accused on 21.09.2001. The Public Analyst has filed the report on 30.11.2001 and the complaint was filed only on 06.06.2002. Crl.M.C. No. 152/2014 -2- 3. After trial, the accused persons, except the petitioner, have been acquitted as per the judgment dated 24.08.2007 passed by the learned Judicial First Class Magistrate-III, Kozhikode. The petitioner was absent during trial and hence the case against the petitioner was split up and re-filed as C.C No. 869 of 2007. Therefore, the petitioner has approached this Court in the year 2014 by filing this Crl.M.C to quash the proceedings initiated against him. 4. The petitioner herein who is arrayed as accused No.10 was the manufacturer and PF licence holder. The Judicial First Class Magistrate has disposed of S.T. No. 1190 of 2005 on 24.08.2007. No appeal has been preferred by the respondents. In the judgment, it is observed that A1 has purchased the article of gingelly oil from the petitioner, who is a duly registered dealer. It is further proved that the sample was sold in the same State as he purchased it and A1 has produced the bill also. 5. This petition is filed in the year 2014. The petitioner seeks to quash the entire proceedings initiated against him. The main ground alleged in the petition is that the entire case was adjudicated by the court below and ultimately A1 to A9 were acquitted by invoking Section 255(1) Cr.P.C and the case against the accused No.10 is split up and refiled to face trial. 6. The alleged seizure was on 24.10.2001 and the accused purchased the gingelly oil on 21.09.2001. The Public Analyst's report Crl.M.C. No. 152/2014 -3- was on 30.11.2001. The complaint was filed only on 06.06.2002. The Public Analyst has examined the sample after a long lapse of time i.e., after the expiry of the period prescribed for its consumption. According to the petitioner's counsel, a further trial will be a futile exercise and all the accused persons except the petitioner have been acquitted. 7. Heard the learned counsel on both sides. I have perused the records also. It has come out that the seized contraband articles were not examined by the Central Food Laboratory and the accused is deprived of his right by getting it analysed by the Central Food Laboratory in view of the delay in lodging the complaint. So it vitiates the entire proceedings. 8. The court below, after trial, observed that from the evidence of PW1, it is crystal clear that PW1 has purchased the article of food from accused No.10, who is a duly licensed manufacturer. It is further proved that the sample was sold in the same State as he purchased it. Therefore, the court below came to the conclusion that the accused are entitled to the benefit under Section 19(2) of the Act. It is also stated in the order that the above aspect is fairly conceded by the learned counsel for the complainant. Crl.M.C. No. 152/2014 -4- 9. The issues to be considered in this case are as follows: 1. Whether the offence alleged against the accused No.10 is sustainable or not. 2. If trial is proceeded, whether that will enter into the conviction. 10. Section 19(2) of the PFA Act reads as follows: 19. Defences which may or may not be allowed in prosecutions under this Act.— (2) a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves— (a) that he purchased the article of food— (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer, (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.] As per Section 19(2) of the Act, a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated article of food if he proves that the food article while in his possession was properly stored and sold it in the same State as he purchased it. So the benefit of Section 19(2) is applicable to the present petitioner. 11. The learned counsel for the petitioner has placed reliance on the decision in _Rasheed N.K. V. Food Inspector, Thalassery and another_ [2016(2) KHC 679 (DB)]. In paragraph 18 of the said decision, it is held thus: Crl.M.C. No. 152/2014 -5- "Wherever an analysis has to be conducted from a laboratory to find whether the particular sample of item of the particular food article is adulterated, to form the basis for initiation of prosecution under the PFA Act the report of the analyst in relation to that sample must be one conducted in a laboratory defined under Section 23 (IA-) (ee). Since no such laboratory was defined till the repealing of the PFA Act wherever an analysis from a laboratory was inevitable for making a report regarding item concerned as adulterated there cannot be any successful prosecution in the absence of such a report. In such circumstances the prosecution proceedings have to be terminated for the failure to define laboratories in terms of Section 23 (IA-) (ee) and the consequential failure to conduct an analysis of the particular sample by the public analyst from such a laboratory. In other words taking note of the nature of the food article involved and the method to be employed to find out the adulteration if an analysis from a laboratory is not at all required in such circumstances the prosecution cannot be stifled on the ground that the laboratories in terms of provisions under Section 23 (IA) (ee) were not defined. It cannot be said that all the prosecutions under the 1954 Act should be stifled owing to the failure to define laboratories in terms of Section 23 (IA) (ee) as there may be cases registered against persons for contravention of the provisions under Section 16 (1) (c), 16 (1) (d) and 14A (Prevention of Food Adulteration Act, 1954). So also a case where the article in food was lifted and sent for analysis prior to the introduction of the provisions under Section 23 (I-A) (ee) viz 1.4.1976 cannot be stifled as anything previously done could not be invalidated owing to the failure to define laboratory in terms of Section 23 (I-A) (ee) in view of the provisions under Section 23 (2). In the context of the term of reference No.1 it is to be noted that subsequent to Pepsico's case (supra) the method of analysis was, in fact, defined and it was brought into by incorporating Rule 9 (4) in the PFA Rules with effect from 25.3.2008." 12. In such circumstances, the prosecution proceedings have to be terminated for the failure to define laboratories in terms of Section 23(1A)(ee) and consequential failure to conduct analysis of particular sample by the Public Analyst from such a laboratory. In _Pepsico India Holdings Pvt. Ltd. v. Food Inspector_ [2010 (4) KHC 767], it is held that when analysis that culminated in the report was made from a laboratory which was not a defined one in terms of Section 23(1A)(ee) of the Act, failure to conduct it from a defined laboratory has to be held as fatal to Crl.M.C. No. 152/2014 -6- the prosecution. It is also held that the provisions under Sections 23(1A)(ee) and (hh) are mandatory. Such a dictum is to be applied in all cases wherever a report of a Public Analyst in respect of an item of food as adulterated has to form the basis for prosecution. 13. Admittedly, in the present case, 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 Sections 23(1A)(ee) and (hh) of the Act. In such circumstances, the prosecution proceedings have to be terminated for the failure to define laboratory in terms of Sections 23(1A)(ee) and (hh) of the Act. In the present case, the contraband article is gingeli oil, which is an article of food and which has been examined by the Public Analyst after a long period of time. Even the petitioner has not obtained an opportunity to send it to the Central Food Laboratory for further analysis. 14. In the light of _Pepsico's case (supra)_ , I find that the contraband article was not analysed through a laboratory which was defined in terms of Sections 23(1A)(ee) and (hh) of the Act. Moreover, there are laches on the part of the prosecution in conducting examination of the contraband article which was alleged to be seized from the possession of the other accused. 15. Therefore, the trial court cannot take cognizance on the complaint based on Annexure I complaint. In fact, for lack of evidence Crl.M.C. No. 152/2014 -7- all other accused were acquitted under Section 255(1) Cr.P.C. There is no meaning in continuing the proceedings further and it will be really an abuse of process of law. Accordingly, all further proceedings pursuant to Annexure I complaint in S.T. No. 1190 of 2005 on the file of the Judicial First Class Magistrate-I, Kozhikode is hereby quashed. This Crl.M.C is allowed as above. **ANNIE JOHN, JUDGE.** _Rv_ Crl.M.C. No. 152/2014 -8-