IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 Crl.MC.No. 1309 of 2009() ----------------------------------- ST.2653/2007 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... PETITIONER(S): ACCUSED ------------------------ 1. A.J.JOSEPH, PRODUCTION SUPERVISOR M/S. MILLENNIUM SPICES, CHERIYAKADAVU KANNAMALY P.O., KOCHI 682 008. 2. M/S. MILLENNIUM SPIECES, CHERIYAKADAVU ,KANNAMALY P.O., KOCHI 682 008. REPRESENTED BY ITS NOMINEE A.J.JOSEPH, PRODUCTION SUPERVISOR. BY ADV. MR.GRASHIOUS KURIAKOSE RESPONDENT(S): COMPLAINANT ------------------------ STATE OF KERALA FOOD INSPECTOR, KOCHI CIRCLE REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.P.K.RAVIKRISHNAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON 06/04/2010 PASSED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 1309 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010. ORDER Petitioners were accused in S.T. No.2653 of 2007 of Judicial Magistrate of the First Class-I,Kochi. They were prosecuted for the offences punishable under Section 2(1)(ia)(m), (7)(1) and Section 16(1)(a1) of the Prevention of Food Adulteration Act and Rule 5 of appendix B Item No.A05.01 of PFA Rules, 1955. The second accused firm of which the first accused is the Production Supervisor. 2. The Food Inspector visited he unit of the second accused and took samples of “AROMA SUPER” grade standard coriander powder on 18.4. 2007. After complying with the necessary formalities, the sample was forwarded to the Public Analyst. Public analysis report was dated 28.5.2007. Since the date was not found to be in conformity with the other standards prescribed, prosecution was launched. Petitioner Crl.M.C.1309/2009. 2 entered appearance and they invoked Section 13 (2) of the PFA Act. The report received from the Central Food Laboratory is produced as Anenxure III. Before the trial court when the proceedings began to continue, that was challenged by the petitioners before this court. 3. The main contention taken by the petitioners was that there was no similarity between the Public Analyst report and Central Food Laboratory report and therefore the prosecution cannot be continued. It was also contended that the expiry date of the commodity is 9.11.2007 and the launching of the prosecution was only on 10.11.2007. Since the prosecution was launched after the expiry date, it cannot continue. It is also pointed out that even though Public Analyst report was sought on 28.5.2007, the prosecution was launched only on 3.11.2007, thereby affecting the valuable right of the petitioners available under Section 13 (2) of the Act. It is also contended that the commodity of which the sample was taken had the trademark AROMA SUPER Agmark grade standard coriander powder, whereas Crl.M.C.1309/2009. 3 the commodity analysed at the Central Food Laboratory was bearing trade mark “AROMA” coriander powder. It is therefore contended that the commodity analysed at the Central Food Laboratory is not the one seized from the manufacturing unit of the petitioners and therefore the prosecution is bad. 4. The respondent resisted the petition. It is contended that in the light of the report from the CFL, the Public Analysis report is of no consequence and therefore the plea based on comparison of the report cannot succeed. The decision reported in 2000(3) KLT 1 was relied on for the said purpose. They pointed out that it was based on the Public Analysis report, which showed that the commodity was adultered sanction was given under Section 20 of the PFA Act. The intimation regarding launching of prosecution was served on 6.11.2007 and therefore there is no delay. The contention based on the expiry date too is without any substance. That date has no consequence or significance as far as the prosecution is concerned. If at all the petitioner Crl.M.C.1309/2009. 4 has a case that the commodity will undergo change after the expiry date, it is for the petitioner to prove the same and there is no invariable rule that one the expiry date is over, the prosecution cannot succeed. 5. The claim of the petitioners that since there is difference in the report between the Public Analyst and the Central Food Laboratory, prosecution has to fail, cannot be accepted. It is well settled by now that once the Central Food Laboratory report is obtained, the Public Analyst report is superseded and the latter cannot be looked into for any purpose. Equally without basis is the contention regarding delay. It is true that there is some delay in launching the prosecution after Public Analysis report was obtained. One has to remember that the sanction has to be obtained and it takes sometime. The mere fact that there is some delay in launching the prosecution cannot prejudice the petitioners at all. The sample forwarded to the Central Food Laboratory has been analysed and there is no observation in the report that due to the delay the article is not capable of being Crl.M.C.1309/2009. 5 analysed or that the delay has affected the components of the article. Therefore this ground too has to fail. 6. The next contention based on the expiry date too is without force. There is nothing in the Act or in the Rule to show that that date has any particular significance. It only means that the commodity may not be sold after that date. There is no indication either in the Act or in the Rules to show that after the expiry date is over the samples cannot be taken or it cannot be analysed. After the expiry date the commodity is still exhibited for sale, then certainly the authorities can take necessary action. Even assuming that by the time the article is sent before the Public Analyst, the expiry date itself is over, is not a ground to quash the proceedings. It is for the petitioner to show by adducing evidence that after the expiry date the commodity will undergo natural changes so that it may not be possible to launch prosecution after the expiry date. There is no presumption that after the expiry date the commodity became useless. It may be a caution to the traders that Crl.M.C.1309/2009. 6 they may not sell it after the expiry date. The Act does not contain any provision, which says after the expiry date the samples cannot be taken. 7. However, there is some force regarding the article sent for analysis to the Central Food Laboratory. The article seized from the petitioners' unit is AROMA SUPER Agmark grade standard coriander powder as could be seen from Annexure II. It was that commodity which was analysed by the Public Analyst and it was found to be adulterated. The petitioners have produced the certificate of authorisation which showed Millennium Spices produces Aroma Super and the manufacturer is Women's Organisation for Rural Development and the trade name is Millennium Spices. It is the sister concern of the society. Petitioners have also produced Annexures IV and V which show that there is another manufacturer Cochin Social Service Society, which manufactures the product “AROMA” coriander powder. As already noticed, the commodity analysed by the Public Analyst has a trade mark Aroma super Agmark Grade. Crl.M.C.1309/2009. 7 But Annexure III, which is the certificate from the Central Food Laboratory shows that the sample analysed has the label Aroma Coriander Powder. It is based on this that it is contended that the article sent for analysis is not the article seized from the petitioner concern. 8. There seems to be much substance in the above contention. Viewed from the above angle, the difference in the two reports assumes significance. It could be seen that there is no comparison between the Public Analyst report and the Central Food Laboratory report. It is not possible to compare the reports and no reliance can be placed on the Public Analyst report. But now it has become necessary to refer to the Public Analysis report. The Public Analyst has dealt with a commodity by name Aroma Super Agmark grade, whereas the commodity sent for analysis before the Central Food Laboratory is Aroma coriander powder. One may recall here that there are two different commodities produced by two different units. So it is clear that as far as the petitioner is concerned, the commodity for Crl.M.C.1309/2009. 8 analysis in the Central Food Laboratory is not the article seized from the unit. If that be so, necessarily the prosecution has to fail. In the result, this petition is allowed, proceedings before JFCM-I, Kochi as regards S.T. 2653 of 2007 has been quashed and the proceedings shall stand dropped. This will not preclude the respondents from taking recourse to such steps as are available to them under law. P. BHAVADASAN, JUDGE sb.