IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 Crl.MC.No. 494 of 2011() ------------------------ PETITIONER: ------------------ DEVASSYKUTTY JOSEPH, S/O JOSEPH, AGED 52 YEARS, RESIDING AT MUKKADAYIL HOUSE, ELAMKULAM VILLAGE, KALOOR P.O., ERNAKULAM. BY ADV. SRI.JOY THATTIL ITTOOP RESPONDENTS: --------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR. 2. JINTO VARKEY, S/O.VARKEY, AGED 26 YEARS, UMBAKATTU HOUSE, KANZHIKUZHY VILLAGE, THODUPUZHA THALUK, IDUKKI 686502. BY PUBLIC PROSECUTOR, SRI.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.494 of 2011 --------------------------------------- Dated this 25th day of February, 2011 ORDER Petitioner is second accused in Annexure-A, complaint before learned Judicial First Class Magistrate-III, Punalur for various offences punishable under the Prevention of Food Adulteration Act and Rules (for short, "the Act and Rules”) for alleged sale of adulterated tea dust. Petitioner who is alleged to be the manufacturer of tea dust claims to have transferred his right over the establishment to the second respondent as per Annexure-B, agreement dated 05.05.2009. Petitioner seeks to quash proceeding against him invoking the power under Sec.482 of the Code of Criminal Procedure (for short, "the Code”). Learned counsel contended that it is merely based on the label declaration on the packing that petitioner is being proceeded against and that the Food Inspector did not conduct any enquiry as to who exactly was in charge of the establishment which manufactured the tea dust in question. Reliance is placed on the decision in Manibai Vs. State of Maharashtra (1974 KHC 741) and in particular the observations in paragraph 5.Learned Public Prosecutor while opposing the petition contended that the Crl.M.C.No.494 of 2011 -: 2 :- Food Inspector had conducted all possible enquiry and that the question whether there was any transfer of the right over the establishment which manufactured the tea dust as contended by petitioner is a matter for evidence which cannot be decided in a proceeding under Sec.482 of the Code. 2. As per Annexure-A, complaint the Food Inspector is said to have inspected the shop of first accused on 18.02.2010 at about 2.30 p.m and purchased tea dust. The sample part on examination by the Public Analyst was found to contain extraneous matter (iron filings) and it was certified that the sample is adulterated. Based on that prosecution was launched. The label declaration, it is not disputed stated that the tea dust was manufactured by the establishment which even according to the petitioner belonging to him and which he claims to have sold as per Annexure-B, agreement dated 05.05.2009. The Food Inspector had sent various letters to M/s.Mukkadayil Agencies (the establishment allegedly owned by petitioner) to ascertain details of license and other matters. Annexure-23 is the letter dated 23.07.2010 issued by the Food Inspector to the Secretary of Kamakshi Grama Panchayath seeking information regarding details of PFA license during 2009-2010 and name and address of Crl.M.C.No.494 of 2011 -: 3 :- PFA licensee during the said period. By Annexure-24, letter dated 29.07.2010 Secretary informed the Food Inspector that there was no license issued (to the manufacturing unit) during 2009-2010. It is relevant to note that Annexure-24 does not mention anything about petitioner intimating the panchayath authorities of the alleged transfer of the unit by Annexure-B, agreement. Annexure- 25 is a letter dated 13.07.2010 sent by the Food Inspector to the Sales Tax Officer seeking name and address of proprietor/licensee of M/s. Mukkadayil Agencies (establishment allegedly belonging to the petitioner) and Annexure-26 is the reply dated 03.08.2010 from the Commercial Tax Officer, Kattappana stating that petitioner stopped business with effect from 08.07.2010 (whereas as per Annexure-A, complaint the detection of offence was on 18.02.2010). Whether, petitioner had sold all his right over the establishment to the second respondent as per Annexure-B, agreement dated 05.05.2009 and assuming so, in spite of that petitioner is liable for the offence are all matters which the trial court has to decide. The decision relied by the learned counsel has no application in this case. That was a case where conviction of accused was challenged in appeal and the Supreme Court held that the High Court had arrived at a Crl.M.C.No.494 of 2011 -: 4 :- finding that appellant was not in charge of, nor was she actually conducting the business carried on at the shop from which the Food Inspector purchased coconut oil. The Supreme Court also referred to Sec.17(1) of the Act and said that the sub section is followed by the proviso according to which nothing contained in the sub section would tender any such person liable to any punishment “if he proves that the offence was committed without his knowledge or that he exercised all diligence to prevent the commission of such offence”. I am not persuaded to think that on the facts and circumstances of this case relying on the said observation it is justified for this Court to quash proceedings against petitioner. Petitioner has to prove his case before the trial court. This criminal miscellaneous case is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-