IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 Crl.MC.No. 330 of 2005() ------------------------ ST.61/2002 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER: 6TH ACCUSED: ------------------------ M/S. FUN FOODS (P) LTD., G-1/389, INDUSTRIAL ARES, BHIVADI, ALWAR DISTRICT, RAJASTHAN. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: COMPLAINANT: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. E.N.SHINE, FOOD INSPECTOR, CORPORATION OF COCHIN, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI S.U.NAZAR FOR R1 SRI.M.K.CHANDRA MOHANDAS FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.880/05 IN CRL.M.C.NO.330/05 DISMISSED 5.9.08 SD/- M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.330 OF 2005 -------------------------------------------- DATED THIS THE 5th DAY OF SEPTEMBER, 2008 O R D E R The petitioner herein is the 6th accused in S.T.No.61/02 before the Court of C.J.M., Ernakulam. The prayer in this petition is to quash Annexure A1 and all proceedings in S.T.No.61/2002 on the file of the Court of C.J.M., Ernakulam. 2. The brief facts of the case as alleged in this petition are as follows: Annexure A1 is the complaint filed by the second respondent, Food Inspector, Ernakulam under the Prevention of Food Adulteration Act alleging offences under sections 2(ia), (a) (m), (ix), (f) and 7(1)(ii) (v) read with Section 16(1)(a)(i) and Appendix A16.12. The petitioner herein is the manufacturer of 'tartar sauce' in respect of which no standards have been prescribed in the Appendix of the Prevention of Food Adulteration Rules. The second respondent purchased 3 bottles of tartar sauce on 30.10.2001 and on the basis of the report of Public Analyst dated 28.11.2001, it was reported that the sample does not conform to the standards prescribed for W.P.(C)No.330/05 -2- sauce and the sample was misbranded. Thereafter, a complaint was lodged before the Court of C.J.M., Ernakulam as S.T.No.61/2002 alleging offences under various sections of the Prevention of Food Adulteration Act mentioned above. Copy of that complaint is produced as Annexure A1. After the receipt of the summons in that case, the petitioner herein entered appearance before that court and filed an application to send the sample for analysis to the Central Food Laboratory and they submitted certificate dated 11.7.2002. Copy of that certificate is Annexure A2. It is submitted that as per Annexure A2, no offence is made out against the petitioner or any other accused and for that reason, Annexure A1 complaint is liable to be quashed. 3. Heard the learned counsel appearing for the petitioner and the second respondent. Heard the learned Public Prosecutor also. 4. It is submitted by the learned counsel appearing for the petitioner that no offence whatsoever has been committed by the petitioner or any other accused in the above case which is evident from the certificate of chemical analysis report obtained from the Central Food Laboratory, copy of which is marked as Annexure A2. The learned counsel has relied on the entries made in the report with regard to the date of manufacture, opinion and the ingredients, etc. It is also W.P.(C)No.330/05 -3- submitted by the learned counsel for the petitioner that as per Rule 32 of the Prevention of Food Adulteration Rules, 1955 wherein a proviso has been inserted with effect from 4.10.2001 which would reveal that the symbol and colour code stipulated to indicate that the product is a Non-Vegetarian Food which consist of a brown colour filled circle came into force only on 4.10.2001 which has nothing to do with regard to the food manufactured before the commencement of the above provisio of the Prevention of Food Adulteration (4th Amendment) Rules,2001. The relevant provisions read as follows: “32. Package of food to carry a label Every package of food shall carry a label and unless otherwise provided in these rules, there shall be specified on every label: (a) The name, trade name or description of food contained in the package; (b) the names of ingredients used in the product in descending order or their composition by weight or volume as the case may be: xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxx xxxxxxxxxxxx Provided also that when any article of food contains whole or part of any animal including birds, fresh water or marine animals or eggs or product of any animal origin, but not including milk or milk products, as an ingredient, (a) a declaration to this effect shall be made by a W.P.(C)No.330/05 -4- symbol and colour code so stipulated for this purpose of indicate that the product is Non-Vegetarian Food. The symbol shall consist of a brown colour filled circle having a diameter not less than the minimum size specified in the Table given below, inside the square with brown outline having side double the diameter of the circle, as indicated in clause (16) of sub-rule (ZZZ) of rule 42.” 4th proviso of the said rule reads as follows:- Provided further that the provisions of these rules shall not apply in respect of any Non-Vegetarian Food which is manufactured and packed without the symbol before the commencement of the Prevention of Food Adulteration (Fourth Amendment) Rules, 2001. 5. The learned counsel for the 2nd respondent has argued that the crucial date with regard to the commission of offence is the date of taking of the sample, which in the present case is on 30.10.2001. The learned counsel fairly conceded that in the light of the report, copy of which is marked as Annexure A2, the other offences mentioned in the complaint, Annexure A, except the offence under Section 2(ix) will not stand against the petitioner. The learned counsel has also submitted that whether the proviso to Rule 32 of Prevention of Food Adulteration Rules, 2001 is applicable in the present case or not are to be decided by the learned Magistrate on the basis of the evidence to be adduced W.P.(C)No.330/05 -5- by the parties before the concerned court. 6. It is seen from the above said provisions of law that the requirement of brown symbol to reveal the food as a non-vegetarian food is inserted in the Rule with effect from 4.10.2001 and it has no application for the food product manufactured before that date. It is revealed from Annexure A2 that the product herein was manufactured in August 2001. Thus, it is clear from Annexure A2 report of the Central Food Laboratory that there is no adulteration and the opinion made in the report that the sample is misbranded is not correct in the light of the provision of law on the point. On a perusal of the facts and the position of law which cannot be disputed by any of the parties in the present case, I find that continuance of the proceedings against the petitioner herein will be an abuse of process of law and wastage of time also. Hence, this petition to quash the proceedings in S.T.No.61/02 before the Court of C.J.M., Ernakulam is allowed and Annexure A1 complaint is quashed. Crl.M.C. is allowed. M.C.HARI RANI, JUDGE. dsn