IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 Crl.MC.No. 1284 of 2007() ------------------------- STC.2071/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... PETITIONER(S): ACCUSED NOS 4 TO 8 --------------------------------- 1. A.K.NARAYANAN, DIRECTOR, KERALA DINESH BEEDI WORKERS' CO-OPERATIVE SOCIETY LTD., PAYYAMBALAM, KANNUR. (A.K.HOUSE ATHIYAMPOOR P.O. BELLA, KANHANGAD, KASARAGOD DISTRICT). 2. ACHANDI KRISHNAN, DIRECTOR KERALA DINESH BEEDI WORKERS' CO-OPERATIVE SOCIETY LTD., PAYYAMBALAM, KANNUR, (MADATHIL P.O. MUNDALOOR, PERALASSERY KANNUR DISTRICT). 3. K.P.RAVI, DIRECTOR, KERALA DINESH BEEDI WORKERS' CO-OPERATIVE SOCIETY LTD., PAYYAMBALAM, KANNUR, (SHISHIRAM, KALLITHAZHA P.O., PAREL, THALASSERY, KANNUR DISTRICT) 4. VAYAKKADI BALAKRISHNAN, DIRECTOR, KERALA DINESH BEEDI WORKERS' CO-OPERATIVE SOCIETY LTD., PAYYAMBALAM, KANNUR (VAYAKKADI HOUSE, P.O., PALLIKUNNU, KANNUR - 4). 5. PULIKKAL BALAN, DIRECTOR, KERALA DINESH BEEDI WORKERS' CO-OPERATIVE SOCIETY LTD., PAYYAMBALAM, KANNUR. (ANEESH NIVAS P.O., VARAM, VALIYANNUR NORTH, KANNUR DISTRICT). BY ADV. SRI.N.A.MURALEEDHARAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. FOOD INSPECTOR, THALASSERY CIRCLE P.O., THALASSERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.P.JAYAKRISHNAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1284 of 2007() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE 1 : COPY OF THE CERTIFIED COPY OF COMPLAINT IN S.T.C.NO.2071/96 ANNEXURE II: COPY OF THE MAHAZAR DTD.15.12.2003 ANNEXURE III: COPY OF THE REPORT OF THE PUBLIC ANALYST DTD.15.1.2004. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.A TO JUDGE ab C.T.RAVIKUMAR, J ------------------------------------------------------- Crl.M.C. NO.1284 of 2007 -------------------------------------------------------- Dated this the 10th day of October, 2011 O R D E R The petitioners are accused Nos.4 to 8 in S.T.No.2071/2006 on the file of Judicial First Class Magistrate Court, Kuthuparamba. They are the members of the Board of Directors of Kerala Dinesh Beedi Workers' Central Co-operative Society Ltd., Kannur. M/s.Dinesh Foods is a unit of the said society, the 9th accused in S.T.No.2071/2006. Accused Nos.2 and 3 are respectively its Secretary and Chairman. 1st accused is the vendor, from whom the first respondent Food Inspector purchased chilli powder for analysis. S.T.No.2071/2006 is with respect to the offences under Section 2(ia)(a) Section 7(i)(v) Rule 5-Appendix B Item No.A-05-05-01 and Section 16(1-A)(a)(ii) Rule 28 of the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules') and Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”). 2. The case of the prosecution is as follows: On 15.12.2003 at about 12.50 pm the 1st respondent Food Inspector inspected the provision shop of the 1st accused one Crl.M.C. NO.1284 of 2007 2 Sri.Devari Musthafa in Anjarakandy, Kannur and after issuing a notice in Form No.VI, the Food Inspector purchased 9 packets of Chilli Powder, each packet containing 100 gms, from the 1st accused for the purpose of analysis. After complying with the formalities one of the sample parts was sent to the Public Analyst for analysis. Annexure III is the report of the Public Analyst wherein it is stated that it is adulterated as it contained an oil soluble synthetic colour and it falls under the provisions of Rule 28 of the Prevention of Food Adulteration Rules, 1955. 3. The said sample was collected on 15.12.2003. The date of manufacturing is November 2003 and the product in question that was taken in sample was best for sale within six months from the date of packing. Hence, the shelf life period of the sample was upto 31.5.2004. These details were specifically mentioned in the packets and also in the report of the Public Analyst. Obviously, the case was filed only on 30.10.2006. In other words, the case was filed after 29 months after the expiry of the best before date. In the said circumstances it is contended that the right available to the petitioners under Section 13(2) of the Act to have the sample examined by Central Food Laboratory has been lost as no purpose would be served by getting the Crl.M.C. NO.1284 of 2007 3 sample kept by the Local (Health) Authority analysed by the Central Food Laboratory after the expiry of the shelf life. In terms of Section 13(3) and Section 13(5) of the Act the findings of the Central Food Laboratory shall be final and conclusive evidence and that the same shall supercede the report of the Public Analyst. The said provisions would thus reveal the importance and value of the right under Section 13(2). The learned counsel for the petitioners relied on the decision of this Court in Crl.M.C.No.2665 of 2005 and in Crl.M.C.No.3436/2006 to buttress the contention that when the said right of the petitioners is prejudicially affected, continuance of the prosecution proceedings would be an abuse of the process of the court. It is in the said circumstances the petitioners seek for quashment of the proceedings relying on the decisions reported in Nestle (India) Ltd. V. C.K.Chand, Food Inspector, Kalahandi and another ( IX-1996 All India Prevention of Food Adulteration Journal-401) and in State of Haryana V. Unique Farmaid P. Ltd. , ( 1999(2) F.A.C 399) . The orders in Crl.M.C.No.2665 of 2005 and Crl.M.C.No.3436 of 2006 were delivered relying on the aforesaid decisions of the Hon'ble Apex Court. Crl.M.C. NO.1284 of 2007 4 4. In this case the label declaration, as seen from Annexure III, reads thus: “Dinesh Red Chilli powder Mfd. by Dinesh foods Dinesh Bhavan Payyambalam, Kannur – 670 001, Kerala, India Mfg. Date Nov./03 Lot No.CHI-36 Best before within 6 months from the date of packing”. 5. There is no dispute that the case was filed only on 30.10.2006, though the sample was collected on 15.12.2003. In view of the aforesaid indisputable position obtained in this case and in the light of Sections 13(2), 13(3) and 13(5) of the Act, I have no hesitation to hold that on account of the failure on the part of the 1st respondent in not filing the case before the expiry of the shelf life period, the valuable right of the petitioner under Section 13(2) of the Act was virtually made purposeless. Hence in view of the decisions of the Hon'ble Apex Court in State of Haryana V. Unique Farmaid P. Ltd. (1999(2) F.A.C 399) and in Gupta Chemicals Pvt. Ltd. V. State of Rajasthan (2002 (2) FAC 148 as also in view of orders referred above viz. in Crl.M.C.No.2665 of 2005, 3436 of 2006 and Crl.M.C.No.441 of 2011 and 565 of 2011 continuance of the prosecution proceedings against the petitioner would be an abuse of the process of the Court and therefore it is liable to be terminated. Crl.M.C. NO.1284 of 2007 5 The learned counsel for the petitioners would submit that the other accused persons who have not approached this Court are also entitled to the benefit of the findings of this Court. 6. I do not find any reason that for not giving the benefit of this judgment to the remaining accused as well in view of facts and circumstances. In the said circumstances the entire proceedings in S.T.No.2071/2006 on the file of the Judicial First Class Magistrate Court, Kuthuparamba is liable to be quashed not only in respect of the petitioners but also in respect of all the other accused as well. In the result, Annexure I complaint, cognizance taken therein and proceedings in S.T.No.2071/2006 on the file of the Judicial First Class Magistrate Court, Kuthuparamba against the petitioners and all other accused are quashed. The Criminal Miscellaneous Case is allowed as above. Sd/- C.T.RAVIKUMAR JUDGE //True Copy// ab P.A to Judge