IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 Crl.MC.No. 1715 of 2009 ------------------------- CC.546/2001 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER / ACCUSED NO.4 ------------------------------------------ PRINCY GEORGE, PROPRIETOR, OSHIN FOOD, VII/940, LOURD NAGER P.O., ANCHERY, THRISSUR - 680006. BY ADV. SRI.N.A.MURALEEDHARAN RESPONDENTS / COMPLAINANT & STATE ------------------------------------------------------------ 1. FOOD INSPECTOR, THIRUVANANTHAPURAM CORPORATION. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 AND R2 BY PUBLIC PROSECUTOR SRI. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 1715 of 2009 ================== Dated this the 23rd day of June, 2009. O R D E R Petitioner is the fourth accused in C.C.No.546/2001 on the file of Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The learned Magistrate took cognizance of the offences under Sections 2(ix)(e), 7(ii)(v) and 16(i)a(i) of Prevention of Food Adulteration Act, 1954, against two accused based on Annexure 1 complaint filed by the first respondent-Food Inspector. The allegation in Annexure 1 complaint is that on 28-3-2001 at 12.15 PM first respondent purchased a packet of instant payasam mix from the shop of the first accused. Second accused is the distributor. Petitioner was subsequently impleaded as fourth accused as per Annexure 4 order in a petition filed by the second respondent contending that petitioner is the manufacturer and third respondent is the dealer from whom he purchased the food articles and therefore he is to be Crl.M.C.No.1715/2009 -2- impleaded as provided under Section 20A of Prevention of Food Adulteration Act. The allegation in Annexure 1 complaint is that the label of instant payasam mix shows the date of manufacture as April, 2001 when it was purchased on 28-3-2001 and therefore it is a mis-branded. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that Rule 6(B) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977, enables the petitioner, being the manufacturer, to use packing materials intended to be used during the next succeeding month, if the packing materials for the previous month had exhausted and as it was the festival season, the packing materials intended to be used for the month of March 2001 had exhausted and so petitioner is entitled to use the packing materials intended to be used for April, 2001 and therefore he had used those packing materials and hence it will not attract the offence as contended. Petitioner also contended Crl.M.C.No.1715/2009 -3- that when the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 applies to pre-packed food articles also, petitioner is entitled to use the packing materials intended to be used during April 2001, in March 2001, if the packing materials for that month were exhausted and he cannot be prosecuted for that offence and therefore the proceedings is to be quashed. 2. Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned Counsel appearing for the petitioner submitted that when Rule 6(B) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 enables petitioner to use the packing materials intended to be used for the month of April 2001, in March 2001 as the packing materials intended to be used for March 2001 had exhausted and petitioner used the packing materials for April 2001 in March 2001 and therefore there is no violation of the Rules, or the provisions of Prevention of Food Crl.M.C.No.1715/2009 -4- Adulteration Act and therefore the proceedings is to be quashed. Learned Counsel also pointed out that proviso to Rule 6(B) inserted as per GSR.666(E) dated 25-9-2002 with effect from 25-3-2003 providing that Rule 6(B) shall not apply to packages containing food products, where the “Best before or Use before” period is ninety days or less from the date of manufacture or packing and it implies that Rule 6(B) applies in cases of food articles also. It was also argued that Explanation III to Rule 6(1)(a) was inserted only by GSR.425(E) dated 17-7-2006 with effect from 13-1-2007 and by the said provision “for packages containing food articles, provisions of the clause shall not apply and instead the requirement of the Prevention of Food Adulteration Act, 1954 and the Rules made thereunder shall apply”, was introduced only in 2007 and therefore the petitioner was entitled to use the packing materials intended to be used in April for the month of March 2001 and therefore no offence is attracted. Learned Counsel argued that in Ground B of Crl.M.C.No.1715/2009 -5- the petition, petitioner specifically pleaded the details with regard to the packing materials used for the month of March 2001 and therefore it is shown that petitioner is entitled to use the packing materials intended to be used for the month of April 2001 in March itself and hence this court has to exercise the powers under Section 482 of Code of Criminal Procedure to secure justice to the petitioner as this case is pending from 2001 onwards. 4. Learned Counsel relied on the decision of the Apex Court in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrajirao Angre ((1998) 1 SCC 692), which was taken note of in Inder Mohan Goswami v. State of Uttaranchal ((2008) 1 SCC (Cri) 259), where their Lordships held that it is well settled legal position that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations made prima facie establish the offence and it is also for the court to take into consideration Crl.M.C.No.1715/2009 -6- any special features which only appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue and it is because the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case quash the proceeding, at the preliminary stage. The argument of the learned Counsel is that when Rule 6(B) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 enables the petitioner to use the packing materials intended to be used for the month of April 2001 in March 2001, even if the petitioner has to undergo the further ordeal of a trial, there is no chance for a conviction and therefore it is necessary to invoke the powers of this court to secure justice to the petitioner and quash the proceedings. Crl.M.C.No.1715/2009 -7- 5. Though in the statement filed by the first respondent it is contended that proviso to Rule 6(B) of Standards of Weights and Measures (Packaged Commodities) Rules, shall not apply to food articles and instead the requirement of Prevention of Food Adulteration Act, 1954 applies, as rightly pointed out by the learned Counsel appearing for the petitioner the said Explanation came into force only with effect from 13-1-2007 and based on the said Explanation which was introduced in 2007, petitioner cannot be denied the defence available under Rule 6(B) in 2001. 6. The provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 applies to all pre-packed items whether food articles or not. Therefore, Rule 6(B) applies to pre-packed food articles also. Rule 6(B) enables the manufacturer to use packing materials intended to be used for the next succeeding month, if the pre-packing materials to be used for that Crl.M.C.No.1715/2009 -8- month was exhausted. Therefore, if the petitioner could satisfy that all the packing materials intended to be used for March 2001 was exhausted, he is entitled to use the packing materials for the month of April 2001. But that benefit could be claimed by the petitioner only after establishing that he has exhausted all the packing materials intended to be used for the month of March, 2001. The argument of the learned Counsel is that in the synopsis as well as in Ground B of Crl.M.C., petitioner has disclosed how the packing materials are being used and how it exhausted and therefore this court has to presume that all the packing materials exhausted in March 2001 and therefore packing materials for the month of April 2001 was used in March 2001. The learned Counsel also argued that if the packing materials for the month of March 2001 is available, petitioner would not have used the packing materials intended to be used for the month of April 2001 and therefore this court can take into consideration that Crl.M.C.No.1715/2009 -9- fact and exercise the power provided under Section 482 of Code of Criminal Procedure. 7. When the provisions in Standards of Weights and Measures (Packaged Commodities) Rules, 1977 applies to food articles and non-food articles and there is special enactment rules with regard to food articles under Prevention of Food Adulteration Act, when an offence is alleged under the Prevention of Food Adulteration Act, it cannot be defended based on the provisions in Standards of Weights and Measures (Packaged Commodities) Rules, 1977. But there is a force in the submission of the learned Counsel that compliance of provisions of Standards of Weights and Measures (Packaged Commodities) Rules was treated as sufficient in respect of food articles also, because otherwise the proviso added to Rule 6(B) in 2003 under GSR.666(E) dated 25-3-2003 was not at all necessary. It could only be the reason why Explanation III was subsequently inserted to Rule 6(B) making it explicitly clear Crl.M.C.No.1715/2009 -10- that with regard to food articles in respect of pre-packed food items what should be complied is not the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, but the provisions in Prevention of Food Adulteration Act and the Rules. But that Explanation was introduced only in 2007 and therefore if the position was otherwise in 2001, petitioner cannot be denied the benefit available to him under Rule 6(B). 8. But, I cannot agree with the submission of the learned Counsel that the benefit under Rule 6(B) is to be granted to the petitioner relying on the averments in the petition that he had exhausted the packing materials intended to be used for March 2001 and therefore he was justified in using the materials intended for the use of April 2001, as this is a fact which can be decided only on evidence. Therefore the criminal proceedings cannot be quashed as sought for and petitioner is entitled to raise the defence based on Rule 6(B) and establish that he had Crl.M.C.No.1715/2009 -11- exhausted all the packing materials intended to be used for the month of March 2001 before the end of March 2001 and therefore he used the packing materials intended to be used for April 2001. If this much is established, petitioner is definitely protected by the provisions in Rule 6(B). Petitioner is at liberty to establish that fact at the time of trial. 9. Learned Counsel then submitted that petitioner was facing trial from 2001 and he has to appear before the court at Thiruvananthapuram from Thrissur on every posting day. If the petitioner files an application under Section 205(1) of Code of Criminal Procedure to dispense with his presence, Magistrate may dispense with his presence. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE dkr