IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 Crl.MC.No. 3411 of 2006 -------------------------------------- ST.409/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... PETITIONER / 3RD ACCUSED: ----------------------------------------------- K.V.PRASAD, MANAGER (PROJECT), M/S.RUCHI HEALTH FOODS LTD., REGD. OFFICE, 408, TULSIANI CHAMBERS, NARIMAN POINT, MUMBAI-400 021. BY ADV. SRI.T.A.SHAJI SMT.T.V.NEEMA SMT.RAGAM.S.MOHAN RESPONDENT / COMPLAINANT: -------------------------------------------------- 1. P.V.BABU RAJAN, FOOD INSPECTOR, KANJIRAPPALLY CIRCLE, CHANGANACHERRY. 2. JACOB MATHEW, VENDOR AND LICENSEE OF CHALAKUZHY TRADERS, DOOR NO.VI/560 AT ERUMELY, (NOW RESIDING AT CHALAKUZHY, KANAKAPPALAM, ERUMELY). 3. SABU THOMAS, PROPRIETOR AND LICENSEE OF THEKKEKKARA AGENCIES, MARKET ROAD, CHANGANACHERRY, (NOW RESIDING AT THEKKEKARA VEEDU, CHANGANCHERRY). 4. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON 23/10/2009 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.3411 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of October 2009 ORDER Petitioner who has been arraigned as accused No.3 in S.T.No.409/04 on the file of the Judicial Magistrate of First Class II, Kanjirappally is facing trial for offences punishable under the Prevention of Food Adulteration Act 1954. The allegation appears to be that the sample of 'Vanaspati' lifted by the Food Inspector from the premises of accused No.1 was found to adulterated. 2. It is the admitted position that petitioner was impleaded in the case at a later stage pursuant to Annexure D filed by accused No.2 in the case. The grievance of the petitioner is that the learned Magistrate has passed the order impleading the petitioner without any application of mind and in a totally mechanical manner. The contention of the petitioner is that he was in no way connected with the manufacturing or distribution of the product in question (vanaspati) though he has been working in the company namely, M/S Ruchi Health Foods Limited as Manager (Project). It is further pointed out that he was stationed at Bombay at the relevant period of time whereas the batch of the product from which sample was lifted Crl.M.C.No.3411 OF 2006 :: 2 :: had been admittedly manufactured in the branch of the factory in Tamil Nadu. It is the further contention of the petitioner that one Mr.Lavish Jain, S/o Jagadish Chand Jain, S.No.2(P), 3(P), 4(P), KIADB Industrial Area, Vaikampady, Mangalore is the nominee under Section 17(2) of the Act. It is also pointed out by the learned counsel that the said Mr.Lavish Jain is in fact being prosecuted in two other cases in his capacity as the nominee of the company. 3. I do not propose to deal with the merit of the above contentions at this stage. However, I am totally satisfied that the impugned order passed by the learned Magistrate on June 21, 2006 is totally without any application of mind. Therefore, the said order is quashed. 4. The learned Magistrate shall pass fresh orders in the matter after affording sufficient opportunity to the petitioner to be heard. It will be open to the petitioner to produce the relevant materials to show that the person named above is the nominee of the company for the purpose of the Act. 5. It is made clear that this order is passed in the peculiar facts and circumstances of this case, especially since in my view on the face of the specific contention raised by the petitioner it would be Crl.M.C.No.3411 OF 2006 :: 3 :: appropriate that the trial court considers the question whether petitioner is liable to be prosecuted or not. The prosecuting agency has to necessarily establish that petitioner is the nominee as otherwise he would not be liable to be prosecuted. Petitioner shall be allowed to be represented by his counsel before the trial court. Criminal M.C. is disposed of in the above terms. (A.K.BASHEER, JUDGE) jes