IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 Crl.MC.No. 1717 of 2008() ------------------------- CC.149/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER(S): ACCUSED ---------------------- 1. M/S.M.V.J. FOODS INDIA (P)LTD. COCHIN-682036, KERALA, INDIA, REPRESENTED BY ITS NOMINEE A.G.VIJAYACHANDRA MENON. 2. A.G.VIJAYACHANDRA MENON SINDHU VIHAR, DESOM P.O., ALUVA. 3. LOVELY FOOD INDUSTRIES, POOCHACKAL CHERTHALA, ALLEPPEY, REPRESENTED BY ITS NOMINEE SADANANDAN T.K. 4. SADANANDAN T.K., MANAGER M/S.LOVELY FOOD INDUSTRIES, POOCHACKAL CHERTHALA. 5. ABDUL KAREEM, NAHETHAN HOUSE VALLOM P.O., VALLOM. 6. N.A. UMMER, S/O.ABDUL KAREEM NAHETHAN HOUSE, VALLOM P.O., VALLOM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. FOOD INSPECTOR KALAMASSERY MUNICIPALITY, ERNAKULAM. PUBLIC PROSECUTOR SRI.MOHANAN V.T.K-R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.2258/2008 IN CRL.M.C.NO.1717/2008 DISMISSED 19.10.2009 Sd/-(C.T.RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. --------------------------------------------- CR.M.C NO.1717 OF 2008 --------------------------------------------- Dated this the 19th day of October, 2009 ORDER Petitioners are accused in C.C.No.149/2006 on the file of the Judicial First Class Magistrate Court-II, Aluva. This Crl.M.C has been filed with the prayer to quash Annexure-A1 complaint and all further proceedings pursuant thereto. 2. The second respondent- Food Inspector conducted an inspection in the shop of the fifth petitioner on 13.1.2005 and purchased three samples of Melam Garlic Pickle and sent them for analysis. The public analyst's report viz. Annexure A2 was obtained on 11.2.05. The result of the analysis is to the effect that the article of food did not conform to the standard prescribed for pickle falling under item No.A. 16.16 of Appendix B of the Prevention of Food Adulteration Rules, 1955 (for short 'the PFA Rules') and therefore, adulterated. Despite the receipt of Annexure-A2 public analyst's report, prosecution has been launched against the petitioners only after more than one year as is obvious from Annexure-A1. Annexure-A1 is dated 8.5.06. But it was filed only on 15.5.06. The allegation incorporated therein CR.MC. NO.1717 OF 2008 2 is that the sample of pickle was not in conformity with the standard prescribed for pickle in item No.A.16.16 of Appendix -B of the PFA Rules and therefore, the accused persons have committed offences under Sections 2(ia) (m), 7(i) and 16(i)a(i) of the PFA Act of 1954 as awarded by Act 34 of 1976 and Rule 5 Appendix- B, A.16.16 of the PFA Rules. On receipt of the summons on 3.6.06, the petitioners appeared before the court and on the same day itself applied for sending the sample of the pickle for analysis by the Central Food Laboratory in terms of sub-section (2) of Section 13 of the PFA Act. Accordingly, it was sent and pursuant to which Annexure-A3 report was given by the Director of the Central Food Laboratory. In the context of the contentions raised by the petitioners, certain other aspects also assumes relevance. Admittedly, the labels on the samples collected bear 6/2006 as the expiry date. This fact is very much evident from Annexures A2 and A3. Another crucial aspect evident from Annexure-A3 is that the samples were analysed only from 9.10.06 to 11.10.06. Based on these incontrovertible facts obtained in this case, it is contended that the delay involved in this case had prejudicially affected them inasmuch as by the time they received the summons for appearance hardly a few days left for the expiry of the shelf life of CR.MC. NO.1717 OF 2008 3 the pickle and the samples drawn were analysed only after the expiry date. Yet another contention taken by the petitioners is the one raised as ground (i) in the Crl.M.C. It pertains to the failure on the part of authorities in identifying the very combination of the product i.e., whether it is pickle in oil or pickle in brine or pickle in vinegar. According to the petitioners, it assumes relevance in the context of the case especially in view of Annexures-A2 and A3 reports. The standard of quality to be maintained co-relates with the combination on pickles and it varies with every combination ie., the pickle in oil, pickle in brine and pickle in vinegar require different standards of quality. In Annexure- A2, the prescribed standard as per item No.A 16.16 of Appendix B of Prevention of Food Adulteration Rules, 1955 has been shown as not less than 2%. It would suggest that the sample purchased was identified as pickle in vinegar. Annexure-A3 is the certificate of analysis of the Central Food Laboratory and as per the same, the standard to be maintained in relation to the same characteristics is not less than 1.2%. Evidently, the Central Food Laboratory took the sample as one in brine because as relates pickle in brine, the standard to be maintained is not less than 1.2%. For a proper understanding of the relevance of identifying the combination on pickles it is CR.MC. NO.1717 OF 2008 4 profitable to extract item No.A.16.16 of Appendix B of the PFA Act and the same runs as hereunder:- A.16.16: combination on pickles may be: (i) Pickles in citrus juice or brine-The percentage of salt in covering liquid shall not be less than 10 per cent when salt is used as major preserving agent. When packed in citrus juice, acidity of the covering liquid shall be not less than 1.2 per cent calculated as citric acid. Soluble calcium salt and permitted preservatives may be used in such type of pickles.[Pickles shall be free from copper, alum and mineral acids]. (ii) Pickles in oil-The fruit or vegetable percentage in the final product shall not be less than 60 per cent. The pickle shall be covered with oil so as to form a layer of not less than 0.5 cm above the contents or the percentage of oil in pickle shall be not less than 10 per cent. [The pickle shall be free from copper, alum and mineral acid]. It may contain rapeseed (rai), ajwain, saunf, black pepper and like spices, etc. Permitted preservative may be used in pickles. (iii) Pickles in vinegar-Pickles in vinegar mean the preparation from sound, clean, raw or sufficiently matured fruits or vegetables free from insect damage or fungus attack, which have been cured in brine or dry salt or salted and dried stack with or without natural fermentation. It shall contain vinegar or acetic acid and the percentage of acid in the fluid portion shall not be less than 2 per cent w/w calculated as acetic acid. It may contain sugar, whole or ground or semi-ground, spices, dried fruits, green and red chillies, ginger etc., dry fruit. Citric acid may also be added in such type of pickles. Spice extract or essences may also be used. The drained weight of the product shall not be less than 60 per cent. [The pickles shall be free from copper, mineral acid, alum synthetic colours] and shall show no sign of fermentation. The product shall be reasonably free from CR.MC. NO.1717 OF 2008 5 sediments. Permitted preservatives may be used in pickles]. 3. Annexures-A2 and A3 would reveal another aspect as well. It pertains to the prescribed standard as relates the preservative. Pickles can be preserved in salt, acid, sugar or any combination of the three. Therefore, firstly the preservative used is to be identified to see whether the prescribed standard is maintained or not. If salt is used as the major preserving agent, the prescribed standard is not less than 10 %. Going by Annexures -A2 and A3, it is evident that the nature of the product, the sample of which was collected was not properly identified. Based on the said factual position, it is contended that the proceedings now initiated against him based on Annexure-A1 is liable to be quashed. In support of the position firstly canvassed, the petitioner has placed reliance on the decision of the Hon'ble Apex Court State of Haryana v. Unique Farmaid (P) Ltd. reported in 1999 (8) SCC 190. 4. I have heard the learned counsel for the petitioners Sri. Bechu Kurian Thomas and the learned Public Prosecutor. 5. The question to be decided is whether the expiry of the shelf life of the product, the sample of which was collected before analysis by the Central Food Laboratory was fatal to the CR.MC. NO.1717 OF 2008 6 prosecution in the context of this case. The relevant dates aforementioned are not in dispute. The crucial dates as mentioned hereinbefore are dates on which the samples were purchased, the report of the public analyst and also the expiry date and the date of appearance and the date on which the samples were directed to be sent for analysis of the Central Food Laboratory and the dates on which the samples were analysed in the Central Food Laboratory. A scanning of these dates would reveal that despite the receipt of the report of the public analyst as early as on 11.2.05 prosecution was launched only on 15.5.06 and pursuant to the receipt of notice and the copy of the public analyst's report, the petitioners appeared before the court on 3.6.06 and submitted application for sending the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. By that time, hardly some days left for the expiry of the shelf life period and admittedly, the sample was analysed only after the expiry of the shelf period. The very purpose of sending the samples to the Central Food Laboratory was rendered meaningless and purposeless by the said delay, according to the petitioners. In support of the contention, the petitioners relied on the decision in State of Haryana v. Unique Farmaid (P) Ltd. reported in CR.MC. NO.1717 OF 2008 7 1999 (8) SCC 190. It was observed therein that if the expiry of the sample prescribed was not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the date of manufacture of the article and the expiry date are mentioned. Further, it was held by the Hon'ble Apex Court as hereunder: 11. Sub-Section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sampled tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, the expiry date of the insecticide was already over and sending of the sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res intgra. In State of Punjab v. National Organic Chemical Industries Ltd. this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to CR.MC. NO.1717 OF 2008 8 have the sample tested by the Central Insecticides Laboratory and need adduce evidence of the report so given in his defence. This court stressed the need to lodge the complaint with utmost despatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal under the Drugs and Cosmetics Act, 1940, Municipal Corpn. of Delhi v. Ghisa Ram, Chetumal v. State of M.P and Calcutta Municipal Corpn. v. Pawan Kumar Saraf all under the Prevention of Food Adulteration Act, 1954. 12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticide Inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. By the time the matter reached the Court, the shelf life of the sample had already expired and no purpose would have been served informing the Court of such an intention. The report of the Insecticide Analyst was, therefore not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the CR.MC. NO.1717 OF 2008 9 case the accused would have been deprived of that right, thus, prejudicing them in their defence. 13. In these circumstances, the High Court was right in concluding that it will be an abuse of the process of the court if the prosecution is continued against the respondents, the accused persons. The High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would dismiss the appeals.” 6. Even when the product in question was an insecticide the Hon'ble Apex Court held that the expiry of the shelf life of the sample is crucial and would deprive the accused the right to get the sample tested by the Central Food Laboratory and would definitely prejudice the defence of the accused and it would invite quashing of the complaint. In this case, though the sample was sent some days prior to the expiry of the shelf life period, the sample was analysed in the Central Food Laboratory only after the expiry of the shelf life period. The product in question is a food item and therefore, the expiry shelf life, indeed, assumes great relevance. In the context of this case, the decision of the Hon'ble Apex Court in T.V Usman v. Food Inspector, Tellicherry Municipality in AIR 1994 SC 1818 also assumes relevance. As per the said decision of the Hon'ble Apex Court, the mere delay would not per se be fatal to the prosecution and the question whether the delay is CR.MC. NO.1717 OF 2008 10 fatal would also depend upon the factum of prejudice it would cause to the accused. In this case, admittedly when the petitioner appeared before the court on receipt of summons, on 3.6.2006 hardly a few days left for the expiry of the shelf life and Annexures A2 and A3 would reveal that the labels on the samples collected bear 6/2006 as the date of expiry. As the product in question is a food item, the delay in conducting analysis and the expiry of the shelf life in the meanwhile, would definitely be prejudicial to the defence. Before proceeding further in this issue, it is relevant to advert to the contention of the petitioners relating the failure to identify the very nature of the product. 7. As noticed earlier, the petitioners have also contended that the failure on the part of the respondents to identify the very combination and nature of the product would also prejudice the defence and render the prosecution an abuse of process of court as the product in question is pickle. In order to find out the prescribed standard, the respondents should have identified the combination of the product as to whether it is pickle in oil or pickle in brine or pickle in vinegar. The prescription of standard in terms of Appendix A 16.16 would differ in respect of these three items. This fact is evident from Annexures A2 and A3. Annexure-A2 prescribes the CR.MC. NO.1717 OF 2008 11 standard which has to be maintained in respect of the acidity as Acetic Acid not less than 2%. Whereas, in Annexure A3, the very same characteristics as against the prescribed standard to be maintained was shown as 1.2%. The prescription of standards would thus suggest that as per Annexure -A2, the product was identified as pickle in vinegar whereas as per Annexure- A3, it was identified as pickle in brine. To ascertain the standard, it was also imperative to identify the major preserving agent. It is true that the report of analysis from the Central Food Laboratory would supersede the report of the public analyst. However, this is not a case where the reports differ in the mere determination of percentage of components. It would cast serious suspicion regarding the combination on pickles product 'pickle' as to whether it is pickle in brine or pickle in vinegar. All these factors would undoubtedly suggest that the delay in conducting the analysis had constituted prejudice to the petitioner and, therefore, the prosecution if allowed to continue would be an absolute abuse of process of court. 8. In the totality of the the circumstances, I am of the view that the proceeding now initiated against the petitioners based on Annexure- A1 complaint is undeserving to be prosecuted. It would CR.MC. NO.1717 OF 2008 12 be an abuse of process of court to allow such a proceedings to be continued against the petitioners based on Annexure-A1 complaint. It is fit case wherein, this court has to exercise the inherent power under Section 482 of the Cr.P.C to bring abrupt termination of the criminal prosecution. Accordingly, Annexure-A1 is quashed. Needless to say that petitioners shall not be prosecuted in C.C.No.149/2006 on the file of the Judicial First Class -II, Aluva based on Annexure-A1 complaint. Accordingly, the above Crl.M.C is allowed. (C.T. RAVIKUMAR) JUDGE spc