IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.Rev.Pet.No. 2708 of 2010 ---------------------------------------- [CC.NO.331/2003 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA] .................... REVISION PETITIONER/PETITIONER/3RD ACCUSED: --------------------------------------------------------------------------- D.RAMAMOORTHY, MANAGING DIRECTOR, S.S.D.OIL MILLS COMPANY LTD., 13Z VILLAGE ROAD, IYYAPPANTHANGAL, CHENNAI-56. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADVS. SRI.VIPIN NARAYAN, SRI.UNNI SEBASTIAN KAPPEN, SRI.M.REVIKRISHNAN. RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. FOOD INSPECTOR, THALASSERY CIRCLE, PIN – 670 101. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA.P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/09/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ---------------------------------------- Crl.R.P No.2708 of 2010 ---------------------------------------- Dated the 15th Day of September, 2010 ORDER The 3rd accused in C.C.No.331/2003 pending before the court Judicial First Class Magistrate, Kuthuparamba, approached the same court by filing C.M.P.No.1488/2010 with a prayer to discharge him under section 227/245 of Cr.P.C. which prayer was rejected by Annexure-B order and hence, this Crl.R.P. 2. The prosecution case is that the Food Inspector, Thalassery, on 19.2.2003 took the sample of Vansapathi from the shop bearing No.12/317 at Mambaram in Vengad Grama Panchayat run by one Abdul Khader. When the sample sent for analysis, it was reported that the sample did not conform to the standard prescribed by the rules framed under the Prevention of Food Adulteration Act and hence, it was adulterated and accordingly the accused was charged under section 16(1)(a)(i) read with Section 2(ia)(m) and Section 7(1) of the Prevention of Food Adulteration Act, CrlR.P.NO.2708/10 -:2:- 1954. The present revision petitioner is the Managing Director of the S.S.D.Oil Mills Company Ltd., who is the petitioner CMP No.1488/10. The learned Magistrate, while rejecting the above petition, after assigning reasons concluded that whether the presence of nickel was there in the sample at the time of analysis by Forensic science Laboratory itself, or whether it was generated subsequently due to the delay are remains to be established. Therefore, the learned Magistrate was of the view that it was not just and proper to discharge the accused at this premature stage of the case since all the above facts can be brought out only during the course of trial. 3. The learned counsel vehemently argued that the right to get analysed the second sample under section 13(2) was prejudicially affected because of the delay occurred in filing the complaint. I am unable to sustain the above contention at this stage. As per the impugned order, wherein the result of analysis by the Central Food Laboratory is shown as adulterated for two reasons: (1) the fact declared CrlR.P.NO.2708/10 -:3:- by the analyst and (2) the presence of very high quantity of nickel. The contention of the prosecution is that the presence of nickel in the disputed sample was not caused due to the delay in analysis. The learned Magistrate after considering all the materials produced along with the complaint taken a view that if the presence of the nickel upto the quantity, i.e. 8.34 ppm is not due to the decomposition of the sample, the petitioner cannot take a stand that his right was prejudicially affected. The learned Magistrate also observed that at present he is not in a position to ascertain whether the delay in analysis would have been made any change in the quantity of nickel which is a question of fact to be decided on merits during trial. It is also his observation as indicated earlier, that the fact that (1) whether the presence of Nickel was there in the sample at the time of analysis by Forensic Science Laboratory itself or (2) whether it was generated subsequently due to the delay are remains to be established. As per the above observation and approach of the learned Magistrate, it appears that in order to appreciate the CrlR.P.NO.2708/10 -:4:- contention of the revision petitioner, the entire facts and evidence are yet to come on record and to be appreciated during the trial. Therefore, the order impugned is not liable to be interfered with at this stage and it is left open to the revision petitioner to take whatever contentions for him at the time of the trial. I find no reason to interfere with the impugned order and accordingly the revision petition is dismissed. V.K.MOHANAN, JUDGE kvm/- CrlR.P.NO.2708/10 -:5:-