IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 Crl.MC.No. 1873 of 2009() ------------------------- CC.246/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONER(S): ACCUSED: ------------------------------------------ 1. K.B.SAMBATH, S/O. BHASKAR, MADURIMA, MALAYINKEEZH POST, ERATTAKALUNGU, TRIVANDRUM. 2. PANTALOON RETAIL INDIA LIMITED, BOMBAY, KNOWLEDGE HOUSE, JOGESWARY EAST, MUMBAI, REP. BY ITS AUTHORISED SIGNATORY, K.B.SANTHOSH, MANAGER. BY ADV. MR.C.P.MOHAMMED NIAS RESPONDENT(S): STATE AND COMPLAINANT: ---------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. D.JAYACHANDRAN, FOOD INSPECTOR, CORPORATION OF THIRUVANANTHAPURAM,TRIVANDRUM. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1873 of 2009 -------------------------- ORDER Petitioner, the accused in C.C.No.246/2008 on the file of Judicial First Class Magistrate's Court-II, Thiruvananthapuram, filed this petition under Section 482 of Code of Criminal Procedure to quash Annexure-I complaint, taken cognizance by the learned Magistrate for the offences under Sections 16(1)(a) and 7(iii) of Prevention of Food Adulteration Act, 1954 and Rule 50 (1) of Prevention of Food Adulteration Rules, 1955. 2. Second respondent, Food Inspector, Corporation of Thiruvananthapuram, on 28.4.2008 at about 4.55 p.m., inspected the retail store 'Big Bazar', run by the petitioner and purchased a soda after paying Rs.29.70, without disclosing his identity, for the purpose of sending it to the Public analyst and prepared three samples and sent one sample to the Public Analyst and the remaining two samples were forwarded to the Local Health Authority. Before getting the report from the Public Analyst, Annexure-I complaint was filed before CRMC 1873/2009 2 the learned Magistrate alleging that petitioner is not having a licence to run the shop and therefore, he committed the alleged offences. This petition is filed contending that complaint is only an abuse of process of the court, as on 13.3.2008 petitioner had applied for a licence and as provided under Section 447 of Kerala Municipalities Act within thirty days, the application was not rejected and therefore, it is to be deemed that licence was granted for the period applied for and as petitioner had applied for the licence for one year, the deemed licence would expire only by 13.4.2008 and therefore, prosecution is to be quashed. It is also contended that claiming that there is a deemed licence, petitioner approached this Court by filing W.P.(C)No.13844/2008 and as per the decision reported in Rajesh Ramachandran v. Corporation of Trivandrum (2008 (3) KLT 419), this Court had already accepted the case of the petitioner that there is a deemed licence as provided under Section 447(6) of Kerala Municipalities Act and therefore, the case is to be quashed. CRMC 1873/2009 3 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Petitioner had earlier filed W.P.(C)No. 13844/2008 seeking a direction to the Corporation of Thiruvananthapuram not to prevent the petitioner from carrying on the retail store 'Big Bazar' contending that he had applied for licence on 13.3.2008 and as it was not rejected and the factum of rejection was not communicated to the petitioner within thirty days as provided under the Act, it is to be taken that he is a deemed licensee as provided under Section 447(6) of Kerala Municipalities Act. As per judgment dated 24.6.2008 in W.P.(C)No.13844/2008, this Court accepted the case of the petitioner that as the Corporation did not communicate rejection of the application for licence filed on 13.3.2008, within a period of thirty days, petitioner is a deemed licencee as provided under Section 447(6) of Kerala Municipalities Act. Corporation was restrained from preventing the petitioner in carrying on the retail shop at the premises. In view of the said decision, continuation of the prosecution against the petitioner for the reason CRMC 1873/2009 4 that on 28.4.2008 he was not having a licence and therefore, he committed the alleged offence under the Prevention of Food Adulteration Act and the Rules is only an abuse of process of the court. From the very fact that second respondent did not even wait for the report from the Public Analyst, for which he is bound to wait before lodging the complaint, establish the malafides in the prosecution. In such circumstances, petition is allowed. C.C. No.246/2008 on the file of Judicial First Class Magistrate's Court-II, Thiruvananthapuram is quashed. 19th August, 2009 (M.Sasidharan Nambiar, Judge) tkv