IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.MC.No. 3310 of 2005() ------------------------- ST.7186/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER: 2ND ACCUSED: ------------------------ SHINY CLEETUS, G.457, PANAMPILLY NAGAR, KOCHI-36. BY ADV. SRI.ANIL K.NARENDRAN RESPONDENTS: STATE & COMPLAINANT: --------------------------------- 1. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE FOOD INSPECTOR, CORPORATION OF KOCHI, ERNAKULAM. R1 BY P.P. SRI C.M. KAMMAPPU. R2 BY ADV. SC FOR COCHIN CORPORATION SRI CHANDRAMOHAN DAS. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.12329/2005 IN CRL.M.C.NO.3310/05 DISMISSED. 20-6-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No.3310 of 2005 --------------------------------------------- Dated this the 20th day of June, 2008 O R D E R The second accused, who is a lady, in S.T.No.7186 of 2002 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam is the petitioner in this Crl.M.C. which preferred under Section 482 of the Code of Criminal Procedure with a prayer to quash S.T.No.7186 of 2002 and all proceedings thereon. 2. The petitioner along with three other accused were called upon to face the charge punishable under Sections 2(i)(a)(m), 7(i), 16(1)(a)(i) and A.11.01.11 in Appendix B of the Prevention of Food Adulteration Act and Rules. Along with this M.C., the petitioner has produced Annexure A1 complaint filed by the second respondent before the court below. As per the averments contained in the complaint, on 2.9.2002, at about 1.15 p.m., the complainant visited the business place by name M/s.Richies Bakery and Fast Food, Shop No.27, GCDA Shopping Complex, Panampally Nagar, Kochi-36. CRL.M.C. NO.3310 OF 2005 :-2-: According to the complainant, the first accused is the Manager of the above said business place and the second accused is the licensee. In the cause title, the first accused is described as the vendor and the petitioner who is the second accused is shown as licensee. It is also averred that the second and first accused, being licensee and manager, are in charge and responsible for the day to day business of the shop. The inspection was conducted in the presence of the first accused. The complainant, after disclosing his identity as Food Inspector of the Corporation of Cochin, served Form VI notice to the first accused and purchased two packets of pasteurized skimmed milk curd weighing 1000 ml. (500 ml. in each packet). It is also stated that there is an inscription on each packet (a product of P.D.D.P.Central Society, Kalady). It is the case that towards the cost of the pasteurized skimmed milk curd so purchased, the complainant paid Rs.16/- for which the accused had issued a cash voucher dated 2.9.2002 duly signed by him. In para 3 of the complaint, it is stated CRL.M.C. NO.3310 OF 2005 :-3-: that after the purchase of the sample, sampling procedure was done in the presence of witnesses and the first accused as per the P.F.A.Act and Rules. The covers of the sample packets were opened and the food item therein were poured in a clean and dry steel vessel and mixed it well homogeneously with a clean and dry spoon. After that, the sample was taken into three clean and dry glass bottles and 28 drops of formalin was added as a preservative to avoid decomposition and mixed it well homogeneously. A mahazar was prepared then and there and the first accused and the complainant signed in the mahazar. In the mahazar, it is stated that signatures of the first accused over each of the three sample packets and the paper slip covering the same were obtained. There were three bottles tied with hard twain and they were taken into custody after properly sealing the same. Samples were safely sent to Public Analyst separately by local delivery and obtained proper acknowledgment from the Public Analyst. It is the further case of the complainant that the Public CRL.M.C. NO.3310 OF 2005 :-4-: Analyst, after examining and analysis of the samples by his Report No.42 dated 10.10.2002, reported that the sample is adulterated. The Public Analyst opined that the sample does not conform to the standard fixed for pasteurized skimmed milk curd fixed under the Prevention of Food Adulteration Act and Rules. Therefore, according to the complainant, the accused had committed the above offences. It is the above complaint challenged in these proceedings. 3. I have heard the learned counsel for the petitioner and Mr. M.K.Chandramohan Das, Standing Counsel for Corporation of Kochi. 4. Learned counsel for the petitioner submits that no complaint will lie against the petitioner who is the licensee. The learned counsel invited my attention to various provisions under Sections 2(i)(a)(m), 7(i), 16(1)(a)(i) and A.11.01.11 in Appendix B. As per the schedule in Kerala, the minimum percentage of milk fat and milk solids not fat from the pasteurized buffalo milk will be 5.0 and 9.0 respectively. According to the CRL.M.C. NO.3310 OF 2005 :-5-: counsel, in view of A.11.02.04 in Appendix B, where dahi or curd is sold or offered for sale without any indication of class of milk, the standards prescribed for dahi prepared from buffalo milk shall apply. The chemical analysis report relied on by the complainant is produced along with this M.C. which is marked as Annexure-A4. In Annexure A4, the Public Analyst observed that the milk fat is at the rate of 0.8%, milk solids not fat- 9.1%. On the basis of the above finding, the Public Analyst opined that the sample does not conform to the standards prescribed for curd prepared from skimmed milk under the Prevention of Food Adulteration Rules, 1955 and is therefore adulterated. Counsel submits that on a perusal of the percentage fixed as per the schedule, it can be seen that the variation is very minor and the reason for such variation is because of the low fat content in the milk used for manufacturing the curd and therefore it cannot be treated as adulterated. Counsel for the petitioner further submits that there is no allegation that the petitioner added something to the CRL.M.C. NO.3310 OF 2005 :-6-: curd to make it an adulterated one and there is no case at all that it was not stored properly. Therefore, according to the counsel for the petitioner, no offence will lie against the petitioner/second accused. 5. Another point advanced by counsel for the petitioner is that the petitioner is entitled to get the benefit of Section 19(2) of the Prevention of Food Adulteration Act, 1954. Section 19 of the Act deals with defences which may or may not be allowed in prosecutions under the Act. Sub-section(2) of Section 19 says as follows:- “19. Defences which may or may not be allowed in prosecutions under this Act.--- (1) xxxxxxxxxx xxxxxxxxxxx (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, CRL.M.C. NO.3310 OF 2005 :-7-: (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.]” On the strength of the above provision, learned counsel for the petitioner submits that the petitioner/second accused also come within the meaning of vendor since she purchased the article in question from the manufacturer and it is the above article sold without any change of condition as distributed by the manufacturer. Therefore, according to the counsel, even if the petitioner is directed to undergo the ordeal of trial, there will be no successful prosecution against the petitioner and if the proceedings against the petitioner are allowed to continue, that will amount to abuse of process of the court. 6. The learned counsel appearing for the 2nd respondent submitted that whatever contentions the CRL.M.C. NO.3310 OF 2005 :-8-: petitioner got against the prosecution, the same can be raised before the trial court and, therefore, in a petition filed under Section 482 of Cr.P.C., those contentions are not liable to be considered. According to the counsel for the 2nd respondent, the allegation against the petitioner is that she had sold adulterated curd and it is a fact to be disproved before the trial court based upon evidence to be adduced during trial. It is further submitted that in order to get protection under section 19(2) of the Act, it is for the petitioner to establish before the court below that she had sold food article in the same state supplied by the dealer, manufacturer or distributor. In the light of the submission made by the counsel for the 2nd respondent, I am forced to examine Annexure A1 complaint again. The averments contained in Annexure A1 compliant shows that the allegation against the petitioner/2nd accused as well as other accused that they have sold adulterated food item and thereby committed offence punishable under sections 2 (i)(a)(m),7(i),16(1)(a)(i) and A.11.01.11 in Appendix B of CRL.M.C. NO.3310 OF 2005 :-9-: the Act and Rules. The overt act alleged against the petitioner is contained in paragraph 7 of the complaint in which the allegation against the petitioners is that in her reply letter, she admitted that she herself is the proprietor and licensee of M/s.Richies Bakery and Fast Food. It is also stated in the same paragraph that the complainant received another letter from the 4th accused society as reply to the letter issued by the complainant and in the above letter they admitted that the 3rd accused is the nominee of the 4th accused and it is further stated that he is responsible to the conduct of the business. Nowhere in the complaint stated that the petitioner herein had adulterated the food article in question and sold the same. In this respect, the averments contained in paragraph 2 of the complaint assume importance and the same is extracted herein for convenience. “On 2-9-02 at about 1.15 p.m. the complainant visited the business place by name Richies Bakery and Fast Food, G.C.D.A shopping complex, Shop No.27, Panampally CRL.M.C. NO.3310 OF 2005 :-10-: Nagar, Kochi-36. The first accused is the Manager of above said business place and the second accused is the licensee. The said accused persons being as licensee and Manager is in charge and responsible for the day-to-day business. The inspection was conducted in the presence of the first accused. During the time of inspection various food articles were exposed there for sale to the public. The complainant after disclosing his identity as Food Inspector of Corporation of Kochi served Form VI notice to the first accused and purchased two packets of pasteurized skimmed milk curd weighing 100 ml (500 ml in each packets). There is an inscription on each packet that “a product of PDDP Central Society, Kalady”. It is submitted that towards the cost of pasteurized skimmed milk curd so purchased the Food Inspector had paid Rs.16/- and for which the accused had issued a cash voucher dated 2-9-2002 duly signed by him”.(emphasis supplied). So, from the above averments and the averments contained in the remaining part of the complaint, it can be seen that no specific overt act is alleged against the petitioner to the effect that she had adulterated or at her instance the food in question was adulterated. It is also discernible from the averments contained in the CRL.M.C. NO.3310 OF 2005 :-11-: complaint that the food in question was supplied by accused Nos.3 and 4 who are the manufacturers of the same. If that be so, it can safely be come into a conclusion that the petitioner herein had sold the food article in question, through the first accused vendor, which supplied by the manufacturers namely, accused Nos. 3 and 4 and the petitioner is only a vendor. Hence, in the absence of any positive allegation, that the petitioner had adulterated the food in question or the food which was purchased by the complainant, is other than what supplied by the manufacturers namely, Accused Nos. 3 and 4, the petitioner is certainly entitled to get protection under section 19(2) of the Act which mentioned earlier. Therefore, there is no meaning in relegating the petitioner, who is coming within the meaning of “vendor” entitled to get protection under section 19(2) of the Act, to face the trial and if the trial is allowed to continue against the petitioner, it will amount to abuse of the process of the court. 7. The counsel for the petitioner submitted that CRL.M.C. NO.3310 OF 2005 :-12-: the report of the Public Analyst is not correct and the variation regarding the quality, which may be varied due to various factors including climate and the quality of milk used for manufacturing of curd and, therefore, no offence will lie against the petitioner. It is also submitted by the counsel for the petitioner that there is no allegation against the petitioner that the article of food, while in her possession, was not properly stored and she had not sold it in the same state as she purchased it. The above two contentions can be settled only on the basis of evidence to be adduced in the court during trial of the case and therefore, I am not prepared to enter into any finding regarding those aspects, especially, in the light of the fact that the petitioner is entitled to get protection under section 19 (2) of the Act. Therefore, those questions are left open. 8. In the result, this Crl.M.C. is allowed holding that the petitioner is entitled to get protection under section 19(2) of the Prevention of Food Adulteration Act, 1954 and there is no scope for a meaningful CRL.M.C. NO.3310 OF 2005 :-13-: prosecution against the petitioner and, if the proceedings against the petitioner is allowed to continue, the same will amount to abuse of the process of the court. Accordingly, all proceedings in S.T.No.7186/2002 on the file of the Addl.Chief Judicial Magistrate court, Ernakulam pending against the petitioner alone is quashed. The Crl.M.C. is allowed to that extent. V.K.Mohanan, Judge Mbs/kvm CRL.M.C. NO.3310 OF 2005 :-14-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- J U D G M E N T CRL.M.C. NO.3310 OF 2005 :-15-: DATED: -2-2008