IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 25TH DAY OF MARCH 2010/4TH CHAITHRA 1932 Crl.MC.No. 4353 of 2005 ----------------------- CC.828/1998 of J.M.F.C.-II, KOCHI .... PETITIONER/ACCUSED: ------------------ P.S.NAUSHAD, S/O.SHAHUL HAMEED, PUTHENVEEDU, THAICHAL P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.C.M.SURESH BABU RESPONDENTS/COMPLAINANT & STATE: ------------------------------- 1. V.PRAVEEN, FOOD INSPECTOR, MOBILE VIGILANCE SQUAD, CORPORATION OF COCHIN, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.SRI.M.K.CHANDRA MOHANDAS R2 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON 25-03-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.Hema, J. ------------------------------------------- Crl.M.C.No.4353 of 2005 ------------------------------------------- Dated this the 25th day of March, 2010 ORDER Petition is filed to quash Annexure-I complaint. 2. Petitioner is the first accused in Annexure-I complaint filed by Food Inspector, who is the first respondent herein. As per the allegations in the complaint, petitioner sold adulterated cow milk to the complainant. Accused no.2 is the firm, which is the manufacturer of the milk sold to complainant. Accused nos.3 and 4 were in charge of and responsible for the affairs of the second accused firm at the time of manufacture of the article sold. 3. On 20.5.1998 at about 3 p.m., complainant visited the business premises of the first accused's hotel and he was found conducting business there. Complainant purchased one litre of milk (2 packets of 500 ml. each) after serving Form-VI notice to first accused. The article was sampled in accordance with law and sent for analysis and it was found to be adulterated. After complying with other legal formalities, complaint was laid against CRMC 4353/05 2 accused nos.1 to 5. 4. Heard. Learned counsel for petitioner submitted that the milk kept in the hotel was not meant for sale. It was taken from the fridge and sampled. It is well settled that the milk, which is not meant for sale, cannot be sampled. Accused nos.2 to 5 were tried by the Magistrate Court and they were acquitted as per judgment dated 31.5.2005 in C.C.No.828/1998. In the said judgment, trial court found that the milk was not meant for sale. The case against petitioner was split up on the ground that he was absconding. It is submitted that petitioner was actually not absconding but he was working in Calcutta with another employer. In such circumstances, the complaint may be quashed, it is submitted. 5. Learned standing counsel for complainant-first respondent submitted that acquittal of co-accused is not a ground for acquitting an accused. Petitioner has to stand trial and get a verdict from the trial court, it is contended. Learned Public Prosecutor, however, conceded that as per the allegations in the complaint itself, no offence will be made out. On hearing both CRMC 4353/05 3 sides and on going through the complaint and Annexure-II judgment, it appears that as per the allegations made in the complaint, the milk, which was taken from the hotel, is not intended for sale. 6. Hence, petitioner ought not to have been prosecuted for the alleged violation of provisions of Prevention of Food Adulteration Act. In Annexure-II judgment, there is a clear finding that the milk, which was kept in the hotel, was not meant for sale. The portion from the judgment is extracted as follows: “Therefore, it is sufficiently proved that the milk was kept there not to sell as such milk. Then the ratio laid down in 1978 KLT 830 becomes significant. It was held that milk is a primary food. If that be so, the Food inspector should not have taken it for analysis in view of Section 10(2) of the Act.” 7. Taking all the above facts and circumstances into consideration, I am satisfied that this is a fit case to quash the complaint, since continuance of proceedings against petitioner will only amount to abuse of process of court. The question whether petitioner has absconded or not is not quite relevant here because, it is not on the sole ground that co-accused are CRMC 4353/05 4 acquitted that petitioner seeks to quash the complaint. On a reading of the complaint itself, it is clear that the milk taken from the hotel is not meant for sale as milk and hence, no purpose will be served by prosecuting the petitioner. Petitioner ought not to have been prosecuted on the basis of Annexure-I. In the result, the following order is passed: i. Annexure-I order so far as it relates to petitioner is hereby quashed. ii. Petitioner shall not be proceeded against on the basis of Annexure-I. Petition is allowed. (K.Hema, Judge) krs.