IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.MC.No. 758 of 2008() ------------------------ CC.1939/2007 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM .................... (CRIME NO.370/2007 OF HILL PALACE POLICE STATION) PETITIONER(S): ACCUSED: ----------------------------------------- JOSEPH SHAJI GEORGE, AGED 47, S/O.LATE GEORGE, DISTRICT FOOD INSPECTOR, THRISSUR. BY ADV. MR.T.A.SHAJI RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM,(REPRESENTING THE STATION HOUSE OFFICER, HILL PALACE POLICE STATION). BY PUBLIC PROSECUTOR MR.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.758 of 2008 -------------------------- ORDER White Oats, purchased by the Food Inspector, was divided into three samples as provided under the Rules and numbered as S.T.No.3983/2001. One sample was sent to the Public Analyst. The other two remaining samples were sent to the Local Health Authority. District Food Inspector took possession of the two samples on 24.2.2001. Petitioner took charge as District Food Inspector, Tripunithura from Mohankumar, the then District Food Inspector, on 8.6.2004. He was continuing in that post till 18.5.2007. Smt.Gangabhai took charge as District Food Inspector on 18.5.2007. In the course of trial of S.T.No.3983/2001, as per order in Crl.M.P.No. 266/2006 dated 20.4.2006, M/s.Cochin Trades Centre was impleaded as an additional accused. On their application filed under Section 13(2) of Prevention of Food Adulteration Act (hereinafter referred to CRMC 758/08 2 as 'the Act'), District Food Inspector was directed to produce the second sample to be forwarded to the Central Food Laboratory. Petitioner reported to the court that samples were spoiled as they were received six years back. Then, learned Magistrate directed petitioner to produce the remainings of the samples. Petitioner then filed a report dated 5.5.2007 to the effect that samples were not traceable. On 31.5.2007, under Annexure-A order, Additional Chief Judicial Magistrate directed the Station House Officer, Hill Palace Police Station to register a case against the petitioner disclosing that petitioner, being its custodian, is suspected to have caused disappearance of the samples so as to enable the accused in the case to escape from punishment. Crime No.370/2007 for the offences under Sections 406 and 201 of Indian Penal Code was registered. Annexure-C final report was filed alleging that petitioner committed the alleged offences, which was taken cognizance by the CRMC 758/08 3 Magistrate as C.C.No.1939/2007. This petition is filed under Section 482 of Code of Criminal Procedure to quash the final report and the cognizance taken contending that petitioner took charge as District Food Inspector only on 8.6.2004 though the samples were received on 24.2.2001 and no application was filed till 2006 to send the second sample to Central Food Laboratory and when petitioner, in his capacity as District Food Inspector, was directed to produce one of the samples, it was reported that sample was not available and only by a mistake it was stated that samples were spoiled and in such circumstances, petitioner has not committed any offence and hence, the final report and the further proceedings are to be quashed. It is also contended that without obtaining sanction as provided under Section 197 of Code of Criminal Procedure, learned Magistrate should not have taken cognizance. CRMC 758/08 4 2. It is the admitted case that the Food Inspector, who seized the food article (white oats), prepared three samples and one sample was sent to the Public Analyst and forwarded the remaining samples to the Local Health Authority. It was received by the then District Food Inspector on 24.2.2001. Statements of Mohankumar, from whom petitioner took charge as District Food Inspector on 8.6.2004 and Gangabhai, to whom petitioner handed over charge on 18.5.2007, establish that petitioner took charge as District Food Inspector on 8.6.2004 and relieved of his duty on 18.5.2007. While petitioner was functioning as the District Food Inspector,Additional Chief Judicial Magistrate directed petitioner to produce the second sample in S.T.No.3983/2001 and petitioner submitted a report stating that it was spoiled, though according to the petitioner, the samples were not then traceable. After petitioner was relieved on 18.5.2007, Annexure-A order was passed by CRMC 758/08 5 Additional Chief Judicial Magistrate to register a case prima facie finding that petitioner, who is the custodian of the samples, destroyed the samples so as to enable the accused to escape from punishment. Annexure-C final report shows that no investigation was conducted as to whether second sample was there in the office on 8.6.2004, when the petitioner took charge as District Food Inspector. As the accused were being tried for the offence under Section 16(1)(a)(i) of the Act in S.T.No.3983/2001, the report of the Public Analyst should have been received earlier to the filing of the complaint. Learned Magistrate has taken cognizance on the final report in 2001 itself. Therefore, if second sample is to be destroyed to enable the accused to escape from punishment for non availability of the sample, it should have been destroyed in 2001 or 2002. Unless there is evidence to prove that destruction of the second sample was subsequent to 8.6.2004, petitioner cannot be CRMC 758/08 6 convicted, even if he is tried for the offence. 3. Final report and the materials produced along with the statements recorded under Section 161 of Code of Criminal Procedure do not disclose that second sample was available in the office of the District Food Inspector till 8.6.2004. In the absence of materials to establish that second sample was available in the office on 8.6.2004, even if petitioner is to be tried, it cannot be found that petitioner destroyed the second sample to enable the accused to escape from punishment as alleged by the prosecution. When it is possible that destruction of the second sample could be prior to 8.6.2004, even if petitioner is to be tried, ultimately, he cannot be convicted. In such circumstances, it will be futile to proceed with the trial. 4. Moreover, without getting sanction as provided under Section 197 of Code of Criminal Procedure, petitioner cannot be prosecuted. Final CRMC 758/08 7 report does not show that sanction was obtained to prosecute the petitioner. Learned Public prosecutor also submitted that sanction was not obtained. In such circumstances, learned Magistrate could not have taken cognizance without getting sanction under Section 197 and on that ground also prosecution against the petitioner can only be quashed. Petition is allowed. Annexure-C final report and C.C.No.1939/2007 on the file of Additional Chief Judicial Magistrate's Court, Ernakulam is quashed. But, it is made clear that quashing of the proceedings will not in any way affect proceeding with the disciplinary action, if any, taken against the petitioner. 7th September, 2009 (M.Sasidharan Nambiar, Judge) tkv