IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 Crl.MC.No. 3080 of 2005 ------------------------- STC.5324/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... PETITIONER: --------------- 1. L.K.JAIN, QUALITY ASSURANCE MANAGER ETATO FACTORY, NUTRICIA INDIA PVT.LTD., 601 MMT.C.HOUSE, BANDRA KURLA COMPLEX, MUMBAI 400 051. 2. M/S.NUTRICIA INDIA PRIVATE LIMITED, 601, MM.T.C. HOUSE, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI 400 051, REPRESENTED BY L.K.JAIN, QUALITY ASSURANCE MANAGER, ETATO FACTORY. BY ADV. SRI.V.G.ARUN RESPONDENT: --------------- 1. THE FOOD INSPECTOR, TALIPARAMBA CIRCLE, TALIPARAMBA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. TOMAS JOHN AMBOOKKEN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-2-2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.M.C.NO. 3080 of 2005 ======================= Dated this the 16th day of February 2009 ORDER This petition is filed under Section 482 of Code of Criminal Procedure by accused 4 and 5 in S.T.C.5324/2002 pending before the Judicial First Class Magistrate Court, Taliparamba with the prayer to quash all further proceedings in the above case pursuant to Annexure-I complaint filed by the Food Inspector, Taliparamba Circle. Petitioners 1 and 2 were arrayed as accused 4 and 5 in the above case as the nominee and the manufacturer of the spray dried skimmed milk powder standard grade alleged to be adulterated which was seized by the Food Inspector, Taliparamba Circle from Tharangam Stationary Store on the inspection conducted on 25-6-2002 at 2.30 p.m. The complaint against the petitioners and other accused in the above case was that the sample of spray dried skimmed milk powder standard grade taken from that stationary shop was sent for CRMC. 3080/2005 -2- analysis and obtained Annexure-II report of the Public Analyst, Regional Analytical Laboratory, Calicut dated 25-7-2002 wherein it is reported that the samples does not conform to the standards prescribed for skimmed milk powder(spray dried) and is,therefore,adulterated under the Prevention of Food Adulteration Rules,1955. Accordingly, the petitioners and other accused have committed the offences under Sections 2(ia),(a) (m), Section 7(1)(v) Appendix B.A.11.02.15 read with Section 16 (1)(a))(1) of the Prevention of Food Adulteration Act 1954 and subsequent Rules. 2. Heard the learned counsel appearing for the petitioners and also the learned Public Prosecutor. 3. It is submitted by the learned counsel for the petitioners that no offence has been committed by the petitioners as alleged in Annexure-I complaint and no offence will lie against the petitioners in view of Annexure-II analysis report. According to the learned counsel, the date of alleged offence as noted in Annexure-I complaint is 25-6-2002. Sample of the spray dried skimmed milk powder received by the Public Analyst as revealed from Annexure-II was on 27-6-2002 wherein it was reported as CRMC. 3080/2005 -3- follows: “ Milk fat : 1.5 per cent Moisture : 3.8 per cent Total acidity expressed as lactic acid:0.95 per cent solubility percent : 94.0” It was also reported in Annexure-II that the sample does not conform to the standards prescribed for skimmed milk powder (spray dried) and is, therefore, adulterated under the Prevention of Food Adulteration Rules, 1955. According to the learned counsel for the petitioners, as per notification dated 29-5-2000 which was substituted as per GSR. 501(E), the contents of skimmed milk powder shall not contain more than 1.5 per cent, milk fat and moisture shall not exceed 5.0 per cent and the total acidity expressed as lactic acid shall not exceed 1.5%. Annexure-II report would reveal that all these three contents mentioned therein are within the limits. Annexure-II also reveals that the Analyst has conducted the test and verified the solubility per cent as 94.0 whereas the test to be conducted as per the above notification dated 29-5-2000 was the insolubility index (maximum) and that test has not been conducted by the CRMC. 3080/2005 -4- Public Analyst. Therefore, on the basis of Annexure-II analysis report, no offence can be made out against the petitioners as is done in the above case. The petitioners have filed Annexure-III petition before the Judicial First Class Magistrate Court, Taliparamba under Section 258 of Cr.P.C. with the prayer to discharge the accused in S.T.C.5324/2002, which was dismissed by the learned Magistrate as per order dated 5-1-2005 for the reason that the Magistrate has already taken cognizance of the case and the learned Magistrate has no power to review its own order in the light of the decision of the Supreme Court in Adalat Prasad v. Rooplal Jindal (2004(3)K.L.T.382(S.C)). 4. It is revealed from Annexure-I complaint that the complainant had inspected Tharangam Stationary Store on 25-6-2002 and purchased spray dried skimmed milk powder standard grade, sample of which on analysis was found that the sample does not conform to the standards as reported in Annexure-II report dated 25-7-2002 wherein the solubility percentage test was conducted instead of the test with regard to the insolubility index as substituted in the rules as per GSR. 501 (E) dated 29-5-2000 after omitting the solubility percentage CRMC. 3080/2005 -5- fixed earlier. Annexure-I complaint is filed on the basis of the findings reported in Annexure-II report prepared after conducting the test of the solubility percentage. But as on the date of alleged commission of offence, the test should be conducted with regard to the insolubility index which was not done in the present case. In such circumstances, I find that continuance of proceedings against the petitioners in the light of Annexure-II report is an abuse of process of court and mere waste of judicial time and no purpose will be served by prosecuting the petitioners. Therefore, the prayer in this petition is allowed and all further proceedings in S.T.C.No.5324/2002 pending before the Court of Judicial First Class Magistrate, Taliparamba against the petitioners,who are accused 4 and 5, are quashed. In the result, the Crl.M.C .is allowed. Sd/- M.C. HARI RANI JUDGE ks. CRMC. 3080/2005 -6- ORDER ON CRL.M.A. NO. 11573/2005 IN CRL.M.C. NO.3080/2005 DISMISSED. 16-2-2009 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE