IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2220 of 2008()
1. K.M.ABDUL RAHIMAN, S/O/K.M.ABDUL REHMAN,
... Petitioner
2. K.M. JOSHI (NOMINEE), NOBLE TRADERS
3. NOBLE TRADERS, VI/612 BAZAR ROAD,
Vs
1. FOOD INSPECTOR, PERUMBAVOOR
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.SANTHOSH SUBRAMANIAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :16/06/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 2220 of 2008
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Dated this the 16th day of June, 2008
ORDER
The petitioners are accused 1 to 3 in a prosecution under
the Prevention of Food Adulteration Act. The Public Analyst
had analysed the sample and found the same to be adulterated.
One of the accused filed an application to send the second
sample for analysis to the Central Food Laboratory. That
sample was sent. It was reported that it was unfit for analysis.
Nothing further was done by the learned Magistrate. Later,
another accused filed an application to send the sample to the
C.F.L. That application was allowed. The sample was sent to
the expert. The expert returned a finding that the article is
adulterated. Of course, it was found that the sample bottle
contained damaged masur dhal. What is, of course, crucially
relevant is that in the second report of the C.F.L., there is no
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statement that the article is unfit for analysis. The only
statement is that the article is adulterated for the reason that it
was damaged. The prosecution is now continuing on the basis
of the second report of the CFL.
2. According to the petitioners, the petitioners are entitled
to have the prosecution against them quashed by invoking the
powers under Sec.482 of the Cr.P.C. What is the reason? The
learned counsel for the petitioners submits that when the sample
sent to the C.F.L. was found to be unfit for analysis, the accused
has lost a valuable right under Sec.13(2) of the PFA Act and
consequently nothing worthwhile is likely to come out of the
proceedings even if it were continued.
3. I find no merit in this contention. It is by now trite that
even if the article has suffered damage and deterioration and
had become unfit for analysis, such report of the C.F.L. cannot
be reckoned as a certificate and the third sample must be sent
for analysis. In the instant case, the third sample was sent for
analysis though not suo motu by this Court as required under the
proviso to Sec.13(2E) of the PFA Act, but on the basis of an
Crl.M.C. No. 2220 of 2008 -: 3 :-
application made by another accused. Be that as it may, in law,
it must be reckoned that when the second sample was not fit for
analysis, the third sample was actually sent to the Director of the
C.F.L. for analysis. The fact that such third sample was sent at
the instance of another accused will not militate against the
efficacy and the binding nature of the second report of the
Director of the C.F.L.
4. The learned counsel for the petitioners has a further
contention that the sample inside the bottle must have been
damaged and reduced to dust not because it was so at the time
of sampling, but because of passage of time. This, of course, is
not a contention which this Court can, need or should entertain
at this stage. The petitioners’ option to contend that the
damage of the sample inside the bottle came into existence after
the sampling before the analysis can and must, of course, be
raised before the trial court. The rebuttable presumption that
the sample continued in the same condition from the date of
sampling to the date of analysis must hold the field now
notwithstanding the long gap of time in this case between the
Crl.M.C. No. 2220 of 2008 -: 4 :-
two.
5. I am not, in these circumstances, persuaded to agree
that the powers under Sec.482 of the Cr.P.C. can or ought to be
invoked. This Crl.M.C. is accordingly dismissed. I may,
however,hasten to observe that I have not intended to express
any final opinion on the contentions on merits raised by the
petitioners. Suffice it to say that I have only taken the view that
the powers under Sec.482 of the Cr.P.C. do not deserve to be
invoked at this stage.
(R. BASANT, JUDGE)
Nan/