IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 Crl.MC.No. 1632 of 2011() -------------------- CC.342/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, SULTHAN BATHERY ................... PETITIONER / IST ACCUSED : ------------------------------------------- K.C.PANKAJAKSHAN, S/O.A.V.SANKARA KURUP, AGED 46 YEARS, SANKAR NIVAS, KOTTAYAMPOYIL P.O., PATHAYAKUNNU (VIA), THALASSERY, MANAGING PARTNER & LICENCEE, K.C.TRADING COMPANY, V/432, 433 SULTHAN BATHERY, A5 REPRESENTED BY A1. BY ADV. SRI.ANEESH JOSEPH RESPONDENT / COMPLAINANT AND STATE : ----------------------------------------------------------------- 1. FOOD INSPECTOR, KALPETTA CIRCLE, KALPETTA, WAYANAD-673121. 2. STATE OF KERALA, REPRESNTED BY PUBLIC PROSECUTR, HIGH COURT OF KERALA, ERNAKULAM-31. R1 & R2 BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 1632 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE A1 : CC OF THE COMPLAINT FILED BY THE PETITIONER IN CC 342/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, SULTHAN BATHERY. ANNEXURE A2 : COPY OF THE REPORT OF THE PUBLIC ANALYST. ANNEXURE A3 : COPY OF THE CERTIFICATE OF ANALYSIS BY THE CENTRAL FOOD LABORATORY DATED 24.9.2008. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1632 of 2011 --------------------------------------- Dated this 15th day of June, 2011 ORDER Petitioner is first accused in C.C.No.342 of 2008 of the Court of learned Judicial First Class Magistrate-I, Sulthan Bathery. That case arose on a complaint filed by the Food Inspector for offences punishable under Secs.16(1-A)(i) r/w Sec.7 (i), 2(ia)(a) and (j) and Sec.17 of the Prevention of Food Adulteration Act, 1954 as amended upto date r/w Rule 5, Appendix B, A.18.06.14 and Rule 223 and 29 of the Prevention of Food Adulteration Rules, 1955 (for short, "the Rules”). It is alleged that on December 17, 2007 at about 11.30a.m the Food Inspector purchased 1kgm of Ragi from the shop of petitioner, the sample part was sent to the Public Analyst for examination and the Public Analyst by Annexure-A2, report opined that the sample part contained Sunset yellow FCF and Carmoisine in contravention of Rule 29 of the Rules. Based on that report first respondent launched prosecution against petitioner and four others (who I am told are partners of the same firm) for offences above stated. In the course of proceeding on the request of petitioner the second sample part was sent to the Central Crl.M.C.No.1632 of 2011 -: 2 :- Forensic Laboratory (for short, "the CFL”) for analysis. Annexure-A3 is the certificate of the CFL which states that the sample part did not contain any extraneous colour and that it was free from extraneous synthetic food colour, but the sample contained damaged grains more than the prescribed standard. Petitioner seeks to quash proceeding in C.C.No.342 of 2008 on the strength of Annexure-A3, certificate. It is argued by learned counsel that Annexure-A2, report of the Public Analyst stand superseded by Annexure-A3, certificate of the CFL. Annexure-A2 report cannot therefore be taken into account for any purpose whatsoever and in the circumstance, in the light of Annexure-A3, report which states that there is no artificial colour, complaint based on that allegation cannot stand and is liable to be quashed. Learned counsel has placed reliance on the decision in Joy Vs. Food Inspector ((2008)4 KLT 90) to contend that the first respondent cannot justifiably urge that the complaint could be amended in tune with the finding of the CFL in Annexure-A3. Learned Public Prosecutor has contended that once sanction is granted, fresh sanction is not required to prosecute the offender. 2. In Food Inspector Vs. Sreenivasa Shenoy (2000 (3) KLT 1) the Supreme Court observed that report of the CFL Crl.M.C.No.1632 of 2011 -: 3 :- would supersede report of the Public Analyst and on such superseding, report of the Public Analyst looses its value and cannot be used for any purpose whatsoever. As it stands, there is only one report in the present case - Annexure-A3, certificate of the CFL. The Supreme Court held in the decision supra that fresh sanction to prosecute is not required once sanction has already been obtained and prosecution has launched. In paragraph 26, the Supreme Court held: “What is intended is that a prosecution, which requires previous sanction, cannot be started without such sanction even by way of amending the charge midway the trial. If the amended charge includes a new offence for which previous sanction is necessary then prosecution for such new offence cannot be started without such sanction. However, the second limb of the sub-section makes it clear that if sanction was already obtained for prosecution on the same facts as those on which the new or altered charge is founded then no fresh sanction is necessary.” It is clear from the above observation that fresh sanction is not required when prosecution is based on the same facts of which the new or altered charge is founded. Crl.M.C.No.1632 of 2011 -: 4 :- 3. In the present case, that is not the situation. For, complaint proceeded on the basis that the food article contained artificial colour and hence is adulterated. That has been found to be incorrect in view of Annexure-A3, certificate of the CFL which of course certified that the food article contained damaged grains more than the prescribed standard. In other words, it is not on the same facts alleged in the complaint that the first respondent now wants to proceed after Annexure-A3, certificate of the CFL. If that be so, without obtaining sanction first respondent cannot proceed in the matter. 4. The question of any amendment of the complaint also does not arise in the light of the decision in Joy Vs. Food Inspector(supra). 5. In view of what I have stated above, proceeding against petitioner in C.C.No.342 of 2008 is liable to be quashed. Though, accused 2 to 5 have not approached this Court there is no reason why the benefit of this order should not go to them also. However I make it clear that this order will not stand in the way of Food Inspector proceeding against persons found to have committed the offence based on Annexure-A3, certificate of the CFL subject of course to the law of limitation and the power of Crl.M.C.No.1632 of 2011 -: 5 :- learned Magistrate to condone the delay if any. Resultantly this criminal miscellaneous case is allowed. Proceeding against petitioner and accused 2 to 5 in C.C.No.342 of 2008 of the Court of learned Judicial First Class Magistrate-I, Sulthan Bathery are quashed subject to the observations made above. (THOMAS P JOSEPH, JUDGE) Sbna/-