IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 9TH DAY OF SEPTEMBER 2009/18TH BHADRA 1931 Crl.MC.No. 1007 of 2006 ( ) --------------------------- STC.2854/1995 of J.M.F.C.,THALASSERY PETITIONER(S)/ACCUSED NO.2:: --------------------------- K.K.AZAD, S/O. LATE ABDULLA, AGED 42 YEARS, RESIDING AT K.K. HOUSE, K.P. ROAD THALASSRY-670 101, THALASSERY TALUK KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN COMPLAINANT(S): --------------- 1. THE FOOD INSPECTOR, MOBILE VIGILANCE SQUAD, KOZHIKODE. 2. LOCAL HEALTH AUTHORITY, THALASSERY MUNICIPALITY, THALASSERY KANNUR DISTRICT. 3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI. B. VINOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-09-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C. No. 1007 of 2006 ------------------------------------------------------------- Dated this 9th day of September, 2009 ORDER Petition filed under Section 482 Cr.P.C. to quash the complaint, Annexure-A. 2. Petitioner is accused no.2 in Annexure-A complaint filed by the Food Inspector. According to him, on 23.3.1995, 3 bottles of “lime pickle in edible oil” were purchased from the first accused. The bottles were having identical labels. One of the samples was sent to the Public Analyst. Another sample was sent to the Senior Public Analyst, Pondicherry. As per the report, sample did not conform to the standard prescribed, since oil content was less than the minimum required, as per A16.16 in Appendix-B of PFA Rules, 1965. Petitioner, who is the 2nd accused, is the licensee of the business run in the premises from where sampling was done. Therefore, a complaint was filed alleging offences under Section 16(1(a)(i) read with Section 2(ia) (m) and Sec.7(i) of the P.F.A. Act and Rule 5 Appendix-B A.16.16(ii) of P.F.A. Rules, 1955 against petitioner and others. 3. Learned counsel for petitioner submitted that as per the [Crl.M.C.1007/2006] 2 averments in the complaint itself, the label refers to the licence No. as “FPO 9287 R” and it is clear from the said details that the licence was taken under the Fruit Products Order Form B. The lcence under the Fruit Products Order, 1955 is issued in Form “B” which shows that licence number will be noted as “FPO No”. The Fruit Products Order 1955 is issued under Exercise of the powers conferred by Section 3 of the Essential Commodities Act 1955. 4. According to the learned counsel for petitioner, as per the said Order, in Clause 2(d), pickle is also treated as “Fruit products” and specification for 'Oil Pickle' is prescribed in Part XVII of Schedule II of the order in which general characteristics are referred to as follows: The fruits and vegetables used in the preparation shall be wholesome and shall be free from fungal or insect attack. The only substance that may be added are spices, salt, oils, sugar, jaggery, onions, garlic, acetic acid, turmeric,s condiments and permitted preservations. All the ingredients used shall be thoroughly clear and free from added copper, alum, mineral acid.” 5. From the above, it is clear that for oil pickles' no minimum is prescribed in respect of the oil content and therefore, it is sufficient if oil is added and no minimum oil is required. It cannot be said that pickle manufactured in this [Crl.M.C.1007/2006] 3 case is in violation of Fruit Products Order, 1955, it is argued. Since the pickle was manufactured consistent with the requirements under the Fruit Products Order, 1955 it cannot be said to be adulterated as stated in the P.F.A. Act or Rules, it is contended. 6. Learned defence counsel placed reliance upon Section 6 of the Essential Commodities Act (E.C. Act for short). As per the said provision, any order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than E.C. Act etc. He argued that since specification is laid down under the Food Product Order in respect of the oil content, the standard prescribed in A16.16 of Appendix-B of PFA Rules will be inconsistent with what is laid down in Fruit Products Order, 1955 and hence the Fruit Products Order,1955 alone shall have effect. 7. It is submitted that referring to a case of inconsistency in labels, which is prescribed under Fruit Products Order and the P.F.A. Act and Rules, this Court in one of the decisions laid down that the provision contained in the Fruit Products Order prevails over the P.F.A. Act and Rules. So, the same principles may be applied in this case to hold that the pickle in this case conform to the specifications under the Fruit Products Order, since it is [Crl.M.C.1007/2006] 4 consistent with standard prescribed as per the P.F.A. Rules. By virtue of Section 6, Fruit Products Order shall have effect, notwithstanding the inconsistency in the P.F.A. Rules, it is argued. 8. Learned Public Prosecutor argued that there is no inconsistency between prescription in the Fruit Products Order and the P.F.A. Rules in respect of 'pickle and oil' and therefore Section 6 of Essential Commodities Act will not apply. The article involved in this case is adulterated, since it does not conform to the standard prescribed in A16.16 in Appendix-B of P.F.A. Rules, since percentage of oil content is only 6.1% as per the report of the Public Analyst, Pondicherry and it is only 3.2%, as per the report of Central Food Laboratory, which are Annexures-B & C respectively. 9. On hearing both sides and on going through the relevant documents and also the relevant provisions, I find that the arguments raised on the side of petitioner can only be rejected, since it cannot be said that the specifications for lime pickle under Fruit Products Order is inconsistent with what is laid down in A16.16 in Appendix-B of PFA Rules. On a comparison of the specifications and the standards for lime pickle in Fruit Products Order and PFA Rules, it can be seen that [Crl.M.C.1007/2006] 5 no percentage is fixed, as per the specification in the Fruit Products Order in respect of oil content. It is only stated that oil can be added to pickle but what must be the percentage of oil contend in the lime pickle is not stated in the Food Product Order. 10. But, in Annexure 16.16 of Appendix-B of PFA Rules, it is specifically laid down that the pickle shall be covered with oil, so as to form a layer of not less than 0.5 cm above the contents or the percentage of oil in pickle shall not be less than 10 percent while in the PFA Rules, the percentage of oil in the pickle is fixed. Therefore, it cannot be said that there is inconsistency in respect of percentage of oil. So also, the specifications in Fruit Products Order does not lay down that there should be a layer of oil above pickle and to what extent such layer must be present in lime pickle. But in the P.F.A. rules, it is laid down that oil level shall not be less than 0.5 cm. In such circumstances, in respect of oil level also, it cannot be said that there is any inconsistency in the Fruit Products Order, since there is no mention there as to what should be the oil level. Therefore, Section 6 of E.C. Act cannot be applied to the facts of this case and the complaint against petitioner is not liable to be quashed. [Crl.M.C.1007/2006] 6 11. On going through the records, particularly, the complaint, petitioner is only a licensee of the business and he is raising a defence under Section 19 of the PFA Act, since the manufacturer is the 4th accused. The argument raised in respect of application of Section 6 of E.C.Act, the specifications under the Fruit Products Order and the standard prescribed under P.F.A. Act or Rules etc. may be a defence which can be raised by the 3rd and 4th accused. They are not before this Court and they are not made parties to the present proceedings. 12. In such circumstances, it may not be proper for me to pass any order touching these aspects in the absence of hearing 3rd and 4th accused, who are likely to be prejudiced by any observation or finding being made on the arguments raised. Therefore, I am not going into the details of the contentions raised but petitioner is at liberty to raise the above contentions before the trial court. With these observations, this petition is dismissed. Sd/- K.HEMA, JUDGE. krs.