IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 Crl.MC.No. 2220 of 2008() ------------------------- ST.931/2007 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... PETITIONER: ------------ 1. K.M.ABDUL RAHIMAN, S/O/K.M.ABDUL REHMAN, XV/480,GENERAL MERCHANT, K.S.R.T.C. ROAD, PERUMBAVOOR 683 542. 2. K.M. JOSHI (NOMINEE), NOBLE TRADERS VI/612,BAZAR ROAD, COCHIN 682 002. 3. NOBLE TRADERS, VI/612 BAZAR ROAD, COCHIN 682 002. BY ADV. SRI.SANTHOSH SUBRAMANIAN SRI.SHEJI P.ABRAHAM RESPONDENTS: ------------- 1. FOOD INSPECTOR, PERUMBAVOOR MUNICIPALITY, PERUMBAVOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2220 of 2008 ------------------------------------------------- Dated this the 16th day of June, 2008 ORDER The petitioners are accused 1 to 3 in a prosecution under the Prevention of Food Adulteration Act. The Public Analyst had analysed the sample and found the same to be adulterated. One of the accused filed an application to send the second sample for analysis to the Central Food Laboratory. That sample was sent. It was reported that it was unfit for analysis. Nothing further was done by the learned Magistrate. Later, another accused filed an application to send the sample to the C.F.L. That application was allowed. The sample was sent to the expert. The expert returned a finding that the article is adulterated. Of course, it was found that the sample bottle contained damaged masur dhal. What is, of course, crucially relevant is that in the second report of the C.F.L., there is no Crl.M.C. No. 2220 of 2008 -: 2 :- statement that the article is unfit for analysis. The only statement is that the article is adulterated for the reason that it was damaged. The prosecution is now continuing on the basis of the second report of the CFL. 2. According to the petitioners, the petitioners are entitled to have the prosecution against them quashed by invoking the powers under Sec.482 of the Cr.P.C. What is the reason? The learned counsel for the petitioners submits that when the sample sent to the C.F.L. was found to be unfit for analysis, the accused has lost a valuable right under Sec.13(2) of the PFA Act and consequently nothing worthwhile is likely to come out of the proceedings even if it were continued. 3. I find no merit in this contention. It is by now trite that even if the article has suffered damage and deterioration and had become unfit for analysis, such report of the C.F.L. cannot be reckoned as a certificate and the third sample must be sent for analysis. In the instant case, the third sample was sent for analysis though not suo motu by this Court as required under the proviso to Sec.13(2E) of the PFA Act, but on the basis of an Crl.M.C. No. 2220 of 2008 -: 3 :- application made by another accused. Be that as it may, in law, it must be reckoned that when the second sample was not fit for analysis, the third sample was actually sent to the Director of the C.F.L. for analysis. The fact that such third sample was sent at the instance of another accused will not militate against the efficacy and the binding nature of the second report of the Director of the C.F.L. 4. The learned counsel for the petitioners has a further contention that the sample inside the bottle must have been damaged and reduced to dust not because it was so at the time of sampling, but because of passage of time. This, of course, is not a contention which this Court can, need or should entertain at this stage. The petitioners' option to contend that the damage of the sample inside the bottle came into existence after the sampling before the analysis can and must, of course, be raised before the trial court. The rebuttable presumption that the sample continued in the same condition from the date of sampling to the date of analysis must hold the field now notwithstanding the long gap of time in this case between the Crl.M.C. No. 2220 of 2008 -: 4 :- two. 5. I am not, in these circumstances, persuaded to agree that the powers under Sec.482 of the Cr.P.C. can or ought to be invoked. This Crl.M.C. is accordingly dismissed. I may, however,hasten to observe that I have not intended to express any final opinion on the contentions on merits raised by the petitioners. Suffice it to say that I have only taken the view that the powers under Sec.482 of the Cr.P.C. do not deserve to be invoked at this stage. (R. BASANT, JUDGE) Nan/