IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Crl.MC.No. 3436 of 2006() ------------------------- CC.278/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, DEVICOLAM .................... PETITIONER(S): ACCUSED NO.3 --------------------------- BIJU CHERIAN, KOTTAYIL HOUSE, THRIKKALATHOOR, MUVATTUPUZHA. BY ADV. SRI.N.A.MURALEEDHARAN RESPONDENT(S): COMPLAINANT & STATE ----------------------------------- 1. FOOD INSPECTOR, DEVIKULAM CIRCLE, DEVIKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJATH ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN CRL.M.A. NO.5766 OF 2006 IN CRL.M.C. NO.3436 OF 2006. DISMISSED 19.2.2009. Sd/-(C.T. RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL.M.C. NO. 3436 OF 2006 -------------------------------------------- Dated this the 19th day of February, 2009 O R D E R The third accused in C.C. No.278 of 2006 on the file of the Judicial First Class Magistrate's Court, Devikulam is the petitioner herein. The case was registered against the petitioner based on Annexure-I complaint filed by the first respondent/Food Inspector, Devikulam Circle for offences punishable under Sections 2((ia), (j), 7(i), 16(1A) and 17 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") and Rule 28 and Appendix B.A 16.07 of the Prevention of Food Adulteration Rules, 1955. 2. The essence of the complaint is that the first respondent inspected Nataraj Store, Munnar owned by the second accused on 27.6.2005 at about 2 p.m. and purchased three bottles of Kissan Fruity Jam(Mixed Fruit) for the purpose of analysis. He had issued notice in Form No.6 while purchasing the bottles of jam. After completing all the procedural formalities, the bottles of jam so purchased were sent to the Public Analyst CRL.M.C. NO.3436/2006 2 for analysis. Annexure III is the report of the Public Analyst dated 6.8.2005. The date of manufacture of the jam is conspicuously absent in Annexure I complaint as well as in Annexure II mahazar. As per the entry in Annexure III report, the date of packing of the sample is March, 2005. It is reported in Annexure III that the sample is adulterated as per Section 2 (ia) and (j) of the Act. The District Food Inspector, Idukkion receipt of Annexure III report, forwarded the same to the first respondent for launching appropriate legal proceedings and it was in pursuance thereof that Annexure I complaint was filed arraying the vendor as the first accused, the owner of the shop in question as the second accused and the petitioner herein as the third accused alleging him to be the dealer of the sample. 3. The label declaration, as seen from Annexure III, reads thus: "Kissan Fruity Jam, Mixed Fruit, FPO 2821-R Batch No.H 52303A, Pkd-March 2005, Best before 12 months from mfg. Veg. symbol - present. Mfd by - Universal Health Care Products Pvt. Ltd. Tamaka Indl Area, Kolar- 573101, Karnataka." 4. The contention of the petitioner is that the jam contained in the packet was not fit for human consumption after 31.3.2006 and, therefore, CRL.M.C. NO.3436/2006 3 the first respondent ought to have filed the complaint in time, before the expiry of the shelf life of the sample, i.e. 31.3.2006. In the label declaration itself it is declared that it is best before 12 months from the date of manufacture. In the instant case, it is obvious that Annexure I complaint was filed only on 26.5.2006, that is, almost two months after the expiry of the shelf life of the sample. It is also to be noted in this context that the date of Annexure III report is 6.8.2005 and, as such, it is evident that Annexure I complaint was filed after more than eight months since the report. 5. In the facts expatiated above, learned counsel for the petitioner contends that the right available to the petitioner under Section 13(2) of the Act has been lost because no purpose would be served by getting the sample kept by the Local (Health) Authority analysed by the Central Food Laboratory after the expiry of the shelf life of the sample. This contention is only to be accepted on facts and also in law. It is further contended that in such circumstances, when the right of the petitioner is prejudicially affected, continuance of the proceedings against him would be an abuse of the process of the court and hence, continuance of such proceedings should be abruptly terminated. To buttress the contention that in such circumstances the complaint is liable to be quashed, reliance CRL.M.C. NO.3436/2006 4 was placed on the decisions in Nestle (India) Ltd. v. A.K. Chand, Food Inspector, Kalahandi and Another reported in IX-1996 All India Prevention of Food Adultertion Journal -401 and in State of Haryana v. Unique Farmaid P. Ltd., reported in 1999(2) F.A.C. 399. It is also submitted that based on the aforesaid decisions in identical situations, in Crl.M.C. Nos.1443 of 2006 and 2665 of 2005, this Court had interfered with the continuance of criminal proceedings. In the former case, upholding the contentions based on the said settled legal position, the complaint against the petitioners therein was quashed. In the latter case, there were eight accused altogether. However, accused Nos.4 to 8 alone approached this Court by filing Crl.M.C. No.2665 of 2005, assailing the continuance of the proceedings in C.C. No. 189 of 2005 before the Chief Judicial Magistrate's Court, Kalpetta Accepting the contentions advanced in the light of the decision in State of Haryana v. Unique Farmaid P. Ltd., reported in 1999(2) F.A.C. 399, this Court held that proceedings not only against the petitioners therein, but also against the rest of the accused cannot be sustained and accordingly quashed the entire proceedings. 6. In the circumstances expatiated above, I am inclined to uphold the contentions of the counsel for the petitioner that the continuance of prosecution against the petitioner as also against the other accused will CRL.M.C. NO.3436/2006 5 amount to abuse of the process of the court and the entire proceedings in C.C. No.278 of 2006 on the file of the Judicial First Class Magistrate's Court, Devikulam is liable to be quashed. because in respect of the other accused also the denial of the right under Section 13(2) of the Act stands. In the circumstances, the prosecution against the petitioner as also against the other accused persons who have not taken up the matter cannot be sustained. In the result, the entire proceedings in C.C. No.278 of 2006 on the file of the Judicial First Class Magistrate's Court, Devikulam is quashed. The Crl. M.C. is accordingly allowed. (C.T. RAVIKUMAR, JUDGE) sp/ CRL.M.C. NO.3436/2006 6 C.T. RAVIKUMAR, J. CRL.M.C. NO. 3436/2006 O R D E R 19th February, 2009