IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 Crl.MC.No. 2979 of 2007(B) -------------------------------------- [CC.NO.102/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II, KANNUR] .................... PETITIONERS/ACCUSED: ------------------------------------ 1. M/S. NARMADA GELATINES LTD., MEERGANJ, BHERAGHAT ROAD, JABALPUR,MADHYA PRADESH, REPRESENTED BY ITS DIRECTOR MR.A.KAPUR. 2. A. KAPUR, S/O. LATE F.C. KAPUR, DIRECTOR OF COMPANY, M/S. NARMADA GELANTINES LTD., JABALPUR, MADHYA PRADESH. BY ADVS. SMT.JAYASREE MANOJ, SRI.M.RISHIKESH SHENOY. RESPONDENTS/COMPLAINANT: ---------------------------------------------- 1. FOOD INSPECTOR, KANNUR MUNICIPALITY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SRI. P.M. SANEER. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/12/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO.2979/2007-B: APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE I: CERTIFIED COPY OF THE COMPLAINT IN C.C. NO. 102/2007. ANNEXURE II: ISO 9001-2000 CERTIFICATE NO. 157283 DTD. 06/08/2004 ISSUED BY BVQI TO THE P.1. ANNEXURE III: COPY OF THE INVOICE NO. 148 DTD. 17/07/2006 ISSUED BY THE PETITIONERS TO ACCUSED NO.6. ANNEXURE IV: COPY OF THE DRUG MANUFACTURING LICENCE DTD. 27/08/2002 ISSUED TO THE P.1. BY THE AND DRUGS ADMINISTRATION, MADHYAPRADESH. ANNEXURE V: COPY OF THE VALIDITY CERTIFICATE DTD. 22/05/2007. ANNEXURE VI: COPY OF THE LETTER DTD. 19/02/07 ISSUED BY THE R.1. TO THE PETITIONER ALONG WITH THE REPORT OF THE PUBLIC ANALYST DTD. 28/09/2006. ANNEXURE VII: COPY OF THE REPLY DTD. 14/03/2007 ISSUED BY THE PETITIONERS TO THE R.1. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. C.T.RAVIKUMAR, J. ---------------------------- Crl.M.C.No.2979 of 2007 ---------------------------- Dated 3rd December, 2011 ORDER The petitioners are accused Nos. 4 and 3 respectively in C.C.No.102 of 2007 on the file of the Judicial First Class Magistrate Court-II, Kannur. Annexure I complaint was filed by the first respondent against the petitioner and other co-accused alleging commission of offences under sections 16(1)(a), 2(ix)(k) and 7(ii) of Prevention of Food Adulteration Act, 1954 and Rule 48 C of Prevention of Food Adulteration Rules, 1955. The case of the prosecution is as follows:- 2. On 28.8.2006 at about 12.35 p.m. the first respondent inspected the premises of Margin Free Market, Kannur City, Door No.KT/27IA within the limits of Kannur Municipality. A1 was conducting the said Margin Free Market. After complying with all mandatory requirements the first respondent purchased six packets, each containing 50 gms. of Baker's Gelatine from a stock of six seated and identical packets exposed for sale in the said shop. One of the sample packets along with Form VII memorandum was forwarded to the Public Analyst, Regional Analytical Laboratory, Kozhikode. After analysis Annexure 6(2) report was given by the Public Analyst and it contains the opinion of the Public Analyst as hereunder:- Crl.M.C.No.2979/2007 2 “..... that the said sample contravenes label provisions as per Rule 48-C of Prevention of Food Adulteration Rules, 1955 and is therefore misbranded as per section 2(ix)(k) of Prevention of Food Adulteration Act, 1954.” Obviously, going by the opinion of the Public Analyst, the sample which was sent for analysis contravenes the label provisions as per Rule 48-C of Prevention of Food Adulteration Rules, 1955 and, therefore, misbranded as per section 2(ix)(k) of Prevention of Food Adulteration Act, 1954. As per Annexure I, the charge against the petitioners is that they have committed offences under sections 16(1)(a), 2(ix)(k) and 7(ii) of Prevention of Food Adulteration Act, 1954 and Rule 48 C of Prevention of Food Adulteration Rules, 1955. The learned Magistrate took cognizance on Annexure-I complaint and then processes were issued. On receipt of summons from the Judicial First Class Magistrate- II, Kannur the petitioners entered appearance therein. This petition has been filed mainly with the prayer to quash Annexure I complaint and all proceedings initiated against the petitioners in C.C.No.102 of 2007 on the file of the Judicial First Class Magistrate-II, Kannur. 3. Obviously, the petitioners are charge sheeted for having committed the offences under sections 16(1)(a), 2(ix)(k) and 7(ii) of Crl.M.C.No.2979/2007 3 Prevention of Food Adulteration Act, 1954 and Rule 48-C of Prevention of Food Adulteration Rules, 1955. The date of commission of the alleged offence, as is obvious from Annexure I complaint, is 28.8.2006. It is contended that as on that date of the alleged offence Rule 48-C stood omitted from the Statute. It is contended that as per G.S.R.400 (E) dated 23.6.2006, Rule 48-C was omitted with effect from 5.7.2006. Rule 48-C provided that Gelatine (Food Grade) should be sold only under Indian Standard Institution certification mark. As already noticed hereinbefore, in Annexure 6(2) report of the Public Analyst he had opined that the sample contravenes label provisions as per Rule 48-C of Prevention of Food Adulteration Rules, 1955. In short, it is evident that going by the prosecution case it is the contravention of the label provisions under Rule 48-C of Prevention of Food Adulteration Rules, 1955 in respect of the sample purchased that led to the laying of charge for having committed the offence under section 2(ix)(k) of Prevention of Food Adulteration Act, 1954 against the petitioners. In other words, according to the prosecution, the same is misbranded on account of the contravention of the label provisions under Rule 48-C of Prevention of Food Adulteration Rules, 1955. In view of the said specific allegation in Annexure-I complaint and in view of the aforementioned specific Crl.M.C.No.2979/2007 4 contention of the petitioners, it is appropriate to look into the relevant provisions under the Statute. The learned Public Prosecutor also endorsed the contention that as per G.S.R.400(E) dated 23.6.2006 Rule 48-C was omitted from the Prevention of Food Adulteration Rules, 1955, with effect from 5.7.2006. In other words, even before the date of inspection of the shop in question by the first respondent Food Inspector viz., on 28.8.2006 and before the filing of Annexure I complaint before the learned Magistrate, Rule 48-C was omitted from the Prevention of Food Adulteration Rules, 1955. Consequent to the omission of Rule 48-C from the Rules no one can say that as on 28.8.2006 the said rule was in force. When a particular rule has been omitted from the Rules in accordance with law it is ununderstandable as to how anyone can be charge sheeted for having committed an offence by its non-compliance after its omission. When that be the case, how can the prosecution allege that the petitioners have contravened the provisions under Rule 48-C and thereby committed the offence of misbranding as per section 2 (ix)(k) of Prevention of Food Adulteration Act, 1954. There cannot be any question of contravention of any particular provision, Rule 48-C of the Rules, on or after 5.7.2006. When that be the position, the allegation levelled against the petitioners regarding commission of Crl.M.C.No.2979/2007 5 offences under sections 16(1)(a), 2(ix)(k) and 7(ii) of Prevention of Food Adulteration Act, 1954 and Rule 48-C of Prevention of Food Adulteration Rules, 1955 on account of contravention of Rule 48-C of the Prevention of Food Adulteration Rules, 1955 cannot be sustained in the eye of law. In the said circumstances, there cannot be any doubt with respect to the position that no successful prosecution can be effected against the petitioners based on Annexure-I complaint. Therefore, allowing continuation of prosecution against the petitioners in the said circumstances would amount an abuse of process of court. In the said circumstances, the prosecution against the petitioners based on Annexure-I complaint is liable to be terminated. Accordingly, Annexure I complaint and all further proceedings against the petitioners in C.C.No.102 of 2007 on the file of the Judicial First Class Magistrate, Kannur, based on Annexure-I complaint, are quashed. The Crl.M.C. is allowed as above. Sd/- C.T.RAVIKUMAR Judge TKS