IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 Crl.MC.No. 3867 of 2009() ------------------------------------ CC.1130/2009 OLD (C.C.NO.266/04) of JUDL. MAGISTRATE OF FIRST CLASS COURT, VAIKOM .................... PETITIONER/ACCUSED: ---------------------------------- SATHEESH CHANDRAN, S/O.RAMACHANDRAN, MALIAKKAL HOUSE, 7/28, KOCHUKAVALA, NADUVELI VILLAGE, VAIKOM P.O., KOTTAYAM DISTRICT. BY ADV. MR.K.RAVEENDRAN MR.P.VISWANATHA MENON RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE FOOD INSPECTOR, ETTUMANOOR CIRCLE, ETTUMANOOR P.O., KOTTAYAM DISTRICT. R1 & R2 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3867 of 2009 -------------------------- ORDER Petitioner is the sole accused in C.C.No. 1130/2009, which was originally taken cognizance as C.C.No.266/2004, on the file of Judicial First Class Magistrate's Court, Vaikom, on Annexure-A1 complaint filed by the second respondent on the allegation that second respondent, after disclosing his identity, purchased one kilogram of milk chocolate for Rs.364/- from van KEK 2095 under a bill issued by the petitioner. Thereafter, second respondent prepared its three samples, in accordance with the Rules and one such sample was sent to the Public Analyst and the remaining two samples were forwarded to the Local Health Laboratory. The report of Public Analyst showed that the food article is adulterated, as provided under Section 2(1a) and (f) of Prevention of Food Adulteration Act, 1954, as the said sample contained Uric Acid, to an extent of not less than 71.0 ppm. and consumption of Uric Acid is injurious to health. It was, therefore, found that the food article is unfit for human consumption. CRMC 3867/09 2 2. This petition is filed under Section 482 of Code of Criminal Procedure to quash the complaint contending that the food article purchased by the second respondent was manufactured by M/s.Cadbury India Ltd., Mumbai and petitioner is only a vendor and Annexure-A1 complaint itself shows that Food Inspector had addressed the Commissioner/Director of Food and Drug Administration, Govt. of Maharashtra to get the details of the manufacturer. So far, the manufacturer is not impleaded and continuation of the proceedings as against the petitioner is only an abuse of process of the court. It is also contended that though petitioner filed original of Annexure-A6 petition before the Magistrate to implead the dealer and manufacturer as additional accused, invoking the power under Section 20A of the PFA Act, learned Magistrate did not receive the same and in such circumstances, continuation of the proceedings is only an abuse of process of the court. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioner submitted that petitioner is only a small vendor, who used to sell articles by carrying them in his van and the milk chocolate purchased by the second respondent, CRMC 3867/09 3 which are allegedly adulterated, were not manufactured by the petitioner, but was supplied to him by the dealer and they were manufactured by a multinational company and in such circumstances, without proceeding against the dealer or manufacturer, proceeding against a small vendor is illegal and on that ground alone, the case is to be quashed. Learned counsel also argued that when petitioner is entitled to get the benefit of Section 19(2) of the PFA Act, learned Magistrate should have impleaded the dealer and the manufacturer and refusal to receive the petition to implead them is illegal and in such circumstances, the case is to be quashed. 5. Learned Public Prosecutor submitted that manufacturer was not impleaded as the details were not received, even though the Commissioner/Director of Food and Drug Administration, Govt. of Maharashtra was addressed by the second respondent to furnish the details as early as 25.2.2004. 6. Annexure-A1 complaint itself shows that the alleged adulterated food article was not manufactured by the petitioner and the manufacturer is M/s.Cadbury India Ltd., Desai Road, Mumbai. It also shows that Food Inspector sought the details of the manufacturer, so as CRMC 3867/09 4 to proceed against it and in the complaint, it is also stated that manufacturer will be impleaded as an accused, as and when the details are received. Submission of the learned Public Prosecutor is that details were not so far received and therefore, manufacturer is not impleaded. 7. As the adulterated food article was sold to the Food Inspector by the petitioner, he being a vendor, it cannot be said that he is not liable. True, as provided under sub-section (2) of Section 19 of PFA Act, a vendor shall not be deemed to have committed the offence pertaining to the sale of milk chocolates, if he proves that he purchased it from a duly licensed manufacturer, distributer or dealer and that the food article, while in his possession, was properly stored and he sold the same in the same state as he purchased. So also, Section 20A of PFA Act enables the court at any time, during trial, to proceed against the manufacturer, distributor or dealer of any food article, if he is satisfied on the evidence adduced before it that such manufacturer, distributor or dealer is also concerned with the offence. In such circumstances, the case as against the petitioner cannot be quashed, on the ground that he is not the CRMC 3867/09 5 manufacturer and manufacturer is not arrayed as a co- accused. Even if the manufacturer is not a co-accused, petitioner, being a vendor, is entitled to claim the benefit under Section 19(2) and he cannot be convicted, provided, he establishes the conditions provided under Section 19(2) of PFA Act. In such circumstances, it is not in the interest of justice to quash the proceedings as sought for. 8. At the same time, when the complaint itself shows that the manufacturer is M/s.Cadbury India Ltd. and petitioner is only a vendor, when the vendor files an application to implead the manufacturer or dealer, learned Magistrate cannot refuse to entertain the application. If the petitioner files an application, to implead the manufacturer or the dealer, from whom he purchased the food article, learned Magistrate has to receive the application and pass appropriate order in the application, in accordance with law. Petition is disposed. 11th December, 2009 (M.Sasidharan Nambiar, Judge) tkv