IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 Crl.MC.No. 2769 of 2008(A) -------------------------------------- [CC.NO.690/2007 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMANGALAM] .................... PETITIONER/2ND ACCUSED: ----------------------------------------- A.M.GOPALAN, 62 YEARS S/O.CHATHU, GOKULAM VILLA, PUDUPPANAM, VADAKARA. PROPRIETOR & LICENSEE, HOTEL GAYATHRI INTERNATIONAL, 27/98, ARAYEDETHPALAM, MAVOOR ROAD, CALICUT. BY ADVS. MR.SANTHOSH SUBRAMANIAN, MR.SHEJI P.ABRAHAM. RESPONDENTS/COMPLAINANT/1ST ACCUSED/STATE: ------------------------------------------------------------------------------- 1. FOOD INSPECTOR, KOZHIKODE CORPORATION, KOZHIKODE. 2. G.SUDHAKARAN, 54 YEARS HOTEL GAYATHRI INTERNATIONAL, ARAYEDATHPALAM, MAVOOR ROAD, CALICUT (1ST ACCUSED IN CC.690/07) 3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2769 OF 2008 ------------------------------------------ Dated 3rd March 2010 O R D E R Petitioner is the second accused and second respondent, the first accused in C.C.690/1007 on the file of Judicial First Class Magistrate, Kunnamangalam, taken cognizance for the offence under Section 16 (1-A) (i) read with Section 7(i), 2(ia) (j) of Prevention of Food Adulteration Act (hereinafter referred to as the Act) and Rule 29 and 37 A(2)(b) of Prevention of Food Adulteration Rules. Prosecution case is that on 16/7/2007 at about 2 p.m first respondent Food Inspector inspected hotel Gayathri International, Arayedathpalam, Mavoor road, Kozhikode and after disclosing his identity, purchased Beef Fry from a stock of about half kilo gram manufactured and kept for Crmc 2769/08 2 sale in an aluminium vessel paying its cost and obtaining cash bill and three samples were prepared and one sample was sent to the public analyst and the remaining samples to the Local (Health) authority and on getting report from the public analyst to the effect that it is adulterated, complaint was filed against second accused, power attorney holder and Manager of hotel Gayathri International and petitioner as the second accused in his capacity as proprietor and licensee of the hotel. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken as against the petitioner contending that Annexure-A4 resolution was passed by the company Sree Gokulam Hotel (INDIA) Pvt. Ltd. which owned Gayathri International, Arayedathupalam, Mavoor Road, Kozhikode nominating Sri.R.Jayaram, S/o.N.Rajan under Sub Crmc 2769/08 3 Section 2 of Section 17 of Prevention of Food Adulteration Act w.e.f 7/4/2007 stating that said nominee shall be in direct control and personal management of the hotels mentioned therein and hence petitioner cannot be prosecuted. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. As directed by this court first respondent has filed a statement disclosing that no valid nomination was filed by the second respondent or Sree Gokulam Hotel (INDIA) Pvt. Ltd. nominating any person in Kozhikode district and in spite of registered notice sent to the petitioner to furnish details of nomination if any, it was not furnished and in such circumstances, the case cannot be quashed. 3. Sub Section 2 of Section 17 of the Crmc 2769/08 4 Act provides that any company by order in writing authorising any of its directors or managers to exercise such powers and take all such steps as may be necessary or expedient to prevent the commission by the company, of any offence under the Act, and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Sub Section 3 provides that the person nominated under Sub Section 2 shall until further notice cancelling such nomination is received from the company by the Local (Health) Authority, or he ceases to be the director or manager of the company or he makes a request in writing to the Local (Health) Authority under intimation to the Crmc 2769/08 5 company to cancel the nomination, shall continue to be the person responsible. Therefore, unless there is nomination by the company as provided under Sub Section 2 of Section 17, petitioner cannot escape. 4. To satisfy Sub Section 2 of Section 17, resolution of the company alone nominating a manager by itself is not sufficient. Notice of such nomination shall be given to the Local (Health) Authority. As the hotel is at Kozhikode and the concerned Local (Health) Authority is of Kozhikode, nomination provided under Sub Section 2 of Section 17 shall be submitted to the Local (Health) Authority, Kozhikode. So long as there is no notice of nomination to Local (Health) Authority, Kozhikode, there is no valid nomination as provided under Section 17(2) and if that be so, petitioner could be prosecuted. Crmc 2769/08 6 5. Annexure-A4 would only show that based on the resolution along with the consent letter of the nominee, notice was given in Form No.VIII to Local (Health) Authority, Tripunithura. Therefore, with regard to the offences committed within the said Local (Health) Authority, there is a valid nomination. But that nomination will not be applicable to Local (Health) Authority, Kozhikode. Unless there is a separate nomination in accordance with Rules in the prescribed form, with consent of the nominee that it is accepted to Local (Health) Authority, Kozhikode petitioner cannot contend that in view of the nomination, he cannot be prosecuted. That exactly is the case herein. When no notice of nomination was given to the Local (Health) Authority, Kozhikode, it can only be found that there is no valid nomination Crmc 2769/08 7 as provided under Section 17(2) of the Act with Kozhikode Corporation. If that be so, case cannot be quashed as sought for. 6. Learned counsel then submitted that petitioner may be permitted to appear through a counsel. It is upto the petitioner to file an application under Section 205 of Code of Criminal Procedure to dispense with his personal appearance. If such an application is filed, Magistrate to pass appropriate orders in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.