IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3310 of 2005()
1. SHINY CLEETUS,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE FOOD INSPECTOR,
For Petitioner :SRI.ANIL K.NARENDRAN
For Respondent :SC FOR COCHIN CORPORATION
The Hon'ble MR. Justice V.K.MOHANAN
Dated :20/06/2008
O R D E R
V.K.MOHANAN, J.
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Crl.M.C.No.3310 of 2005
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Dated this the 20th day of June, 2008
O R D E R
The second accused, who is a lady, in
S.T.No.7186 of 2002 on the file of the Additional Chief
Judicial Magistrate Court, Ernakulam is the petitioner in
this Crl.M.C. which preferred under Section 482 of the
Code of Criminal Procedure with a prayer to quash
S.T.No.7186 of 2002 and all proceedings thereon.
2. The petitioner along with three other accused
were called upon to face the charge punishable under
Sections 2(i)(a)(m), 7(i), 16(1)(a)(i) and A.11.01.11 in
Appendix B of the Prevention of Food Adulteration Act and
Rules. Along with this M.C., the petitioner has produced
Annexure A1 complaint filed by the second respondent
before the court below. As per the averments contained in
the complaint, on 2.9.2002, at about 1.15 p.m., the
complainant visited the business place by name
M/s.Richies Bakery and Fast Food, Shop No.27, GCDA
Shopping Complex, Panampally Nagar, Kochi-36.
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According to the complainant, the first accused is the
Manager of the above said business place and the
second accused is the licensee. In the cause title, the
first accused is described as the vendor and the
petitioner who is the second accused is shown as
licensee. It is also averred that the second and first
accused, being licensee and manager, are in charge and
responsible for the day to day business of the shop. The
inspection was conducted in the presence of the first
accused. The complainant, after disclosing his identity
as Food Inspector of the Corporation of Cochin, served
Form VI notice to the first accused and purchased two
packets of pasteurized skimmed milk curd weighing
1000 ml. (500 ml. in each packet). It is also stated that
there is an inscription on each packet (a product of
P.D.D.P.Central Society, Kalady). It is the case that
towards the cost of the pasteurized skimmed milk curd
so purchased, the complainant paid Rs.16/- for which the
accused had issued a cash voucher dated 2.9.2002 duly
signed by him. In para 3 of the complaint, it is stated
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that after the purchase of the sample, sampling
procedure was done in the presence of witnesses and
the first accused as per the P.F.A.Act and Rules. The
covers of the sample packets were opened and the food
item therein were poured in a clean and dry steel vessel
and mixed it well homogeneously with a clean and dry
spoon. After that, the sample was taken into three clean
and dry glass bottles and 28 drops of formalin was
added as a preservative to avoid decomposition and
mixed it well homogeneously. A mahazar was prepared
then and there and the first accused and the
complainant signed in the mahazar. In the mahazar, it
is stated that signatures of the first accused over each of
the three sample packets and the paper slip covering the
same were obtained. There were three bottles tied with
hard twain and they were taken into custody after
properly sealing the same. Samples were safely sent to
Public Analyst separately by local delivery and obtained
proper acknowledgment from the Public Analyst. It is
the further case of the complainant that the Public
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Analyst, after examining and analysis of the samples by
his Report No.42 dated 10.10.2002, reported that the
sample is adulterated. The Public Analyst opined that
the sample does not conform to the standard fixed for
pasteurized skimmed milk curd fixed under the
Prevention of Food Adulteration Act and Rules.
Therefore, according to the complainant, the accused
had committed the above offences. It is the above
complaint challenged in these proceedings.
3. I have heard the learned counsel for the
petitioner and Mr. M.K.Chandramohan Das, Standing
Counsel for Corporation of Kochi.
4. Learned counsel for the petitioner submits
that no complaint will lie against the petitioner who is
the licensee. The learned counsel invited my attention
to various provisions under Sections 2(i)(a)(m), 7(i),
16(1)(a)(i) and A.11.01.11 in Appendix B. As per the
schedule in Kerala, the minimum percentage of milk fat
and milk solids not fat from the pasteurized buffalo milk
will be 5.0 and 9.0 respectively. According to the
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counsel, in view of A.11.02.04 in Appendix B, where dahi
or curd is sold or offered for sale without any indication
of class of milk, the standards prescribed for dahi
prepared from buffalo milk shall apply. The chemical
analysis report relied on by the complainant is produced
along with this M.C. which is marked as Annexure-A4.
In Annexure A4, the Public Analyst observed that the
milk fat is at the rate of 0.8%, milk solids not fat- 9.1%.
On the basis of the above finding, the Public Analyst
opined that the sample does not conform to the
standards prescribed for curd prepared from skimmed
milk under the Prevention of Food Adulteration Rules,
1955 and is therefore adulterated. Counsel submits that
on a perusal of the percentage fixed as per the schedule,
it can be seen that the variation is very minor and the
reason for such variation is because of the low fat
content in the milk used for manufacturing the curd and
therefore it cannot be treated as adulterated. Counsel
for the petitioner further submits that there is no
allegation that the petitioner added something to the
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curd to make it an adulterated one and there is no case
at all that it was not stored properly. Therefore,
according to the counsel for the petitioner, no offence
will lie against the petitioner/second accused.
5. Another point advanced by counsel for the
petitioner is that the petitioner is entitled to get the
benefit of Section 19(2) of the Prevention of Food
Adulteration Act, 1954. Section 19 of the Act deals with
defences which may or may not be allowed in
prosecutions under the Act. Sub-section(2) of Section
19 says as follows:-
“19. Defences which may or may not
be allowed in prosecutions under this
Act.—
(1) xxxxxxxxxx xxxxxxxxxxx
(2) A vendor shall not be deemed to
have committed an offence pertaining to
the sale of any adulterated or
misbranded article of food if he proves–
(a) that he purchased the article
of food—
(i) in a case where a licence
is prescribed for the sale
thereof, from a duly licensed
manufacturer, distributor
or dealer,CRL.M.C. NO.3310 OF 2005
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(ii) in any other case, from
any manufacturer,
distributor or dealer with a
written warranty in the
prescribed form; and
(b) that the article of food while
in his possession was properly
stored and that he sold it in the
same state as he purchased it.]”
On the strength of the above provision, learned counsel
for the petitioner submits that the petitioner/second
accused also come within the meaning of vendor since
she purchased the article in question from the
manufacturer and it is the above article sold without any
change of condition as distributed by the manufacturer.
Therefore, according to the counsel, even if the
petitioner is directed to undergo the ordeal of trial,
there will be no successful prosecution against the
petitioner and if the proceedings against the petitioner
are allowed to continue, that will amount to abuse of
process of the court.
6. The learned counsel appearing for the 2nd
respondent submitted that whatever contentions the
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petitioner got against the prosecution, the same can be
raised before the trial court and, therefore, in a petition
filed under Section 482 of Cr.P.C., those contentions are
not liable to be considered. According to the counsel for
the 2nd respondent, the allegation against the petitioner
is that she had sold adulterated curd and it is a fact to
be disproved before the trial court based upon
evidence to be adduced during trial. It is further
submitted that in order to get protection under section
19(2) of the Act, it is for the petitioner to establish
before the court below that she had sold food article in
the same state supplied by the dealer, manufacturer or
distributor. In the light of the submission made by the
counsel for the 2nd respondent, I am forced to examine
Annexure A1 complaint again. The averments contained
in Annexure A1 compliant shows that the allegation
against the petitioner/2nd accused as well as other
accused that they have sold adulterated food item and
thereby committed offence punishable under sections 2
(i)(a)(m),7(i),16(1)(a)(i) and A.11.01.11 in Appendix B of
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the Act and Rules. The overt act alleged against the
petitioner is contained in paragraph 7 of the complaint
in which the allegation against the petitioners is that in
her reply letter, she admitted that she herself is the
proprietor and licensee of M/s.Richies Bakery and Fast
Food. It is also stated in the same paragraph that the
complainant received another letter from the 4th
accused society as reply to the letter issued by the
complainant and in the above letter they admitted that
the 3rd accused is the nominee of the 4th accused and it
is further stated that he is responsible to the conduct of
the business. Nowhere in the complaint stated that
the petitioner herein had adulterated the food article in
question and sold the same. In this respect, the
averments contained in paragraph 2 of the complaint
assume importance and the same is extracted herein for
convenience.
“On 2-9-02 at about 1.15 p.m. the
complainant visited the business place by
name Richies Bakery and Fast Food, G.C.D.A
shopping complex, Shop No.27, PanampallyCRL.M.C. NO.3310 OF 2005
:-10-:
Nagar, Kochi-36. The first accused is the
Manager of above said business place and the
second accused is the licensee. The said
accused persons being as licensee and
Manager is in charge and responsible for the
day-to-day business. The inspection was
conducted in the presence of the first
accused. During the time of inspection various
food articles were exposed there for sale to
the public. The complainant after disclosing
his identity as Food Inspector of Corporation
of Kochi served Form VI notice to the first
accused and purchased two packets of
pasteurized skimmed milk curd weighing 100
ml (500 ml in each packets). There is an
inscription on each packet that “a product of
PDDP Central Society, Kalady”. It is
submitted that towards the cost of
pasteurized skimmed milk curd so purchased
the Food Inspector had paid Rs.16/- and for
which the accused had issued a cash voucher
dated 2-9-2002 duly signed by him”.(emphasis
supplied).
So, from the above averments and the averments
contained in the remaining part of the complaint, it can
be seen that no specific overt act is alleged against the
petitioner to the effect that she had adulterated or at
her instance the food in question was adulterated. It is
also discernible from the averments contained in the
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complaint that the food in question was supplied by
accused Nos.3 and 4 who are the manufacturers of the
same. If that be so, it can safely be come into a
conclusion that the petitioner herein had sold the food
article in question, through the first accused vendor,
which supplied by the manufacturers namely, accused
Nos. 3 and 4 and the petitioner is only a vendor.
Hence, in the absence of any positive allegation, that
the petitioner had adulterated the food in question or
the food which was purchased by the complainant, is
other than what supplied by the manufacturers namely,
Accused Nos. 3 and 4, the petitioner is certainly entitled
to get protection under section 19(2) of the Act which
mentioned earlier. Therefore, there is no meaning in
relegating the petitioner, who is coming within the
meaning of “vendor” entitled to get protection under
section 19(2) of the Act, to face the trial and if the
trial is allowed to continue against the petitioner, it will
amount to abuse of the process of the court.
7. The counsel for the petitioner submitted that
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the report of the Public Analyst is not correct and the
variation regarding the quality, which may be varied
due to various factors including climate and the
quality of milk used for manufacturing of curd and,
therefore, no offence will lie against the petitioner. It is
also submitted by the counsel for the petitioner that
there is no allegation against the petitioner that the
article of food, while in her possession, was not
properly stored and she had not sold it in the same state
as she purchased it. The above two contentions can be
settled only on the basis of evidence to be adduced in
the court during trial of the case and therefore, I am not
prepared to enter into any finding regarding those
aspects, especially, in the light of the fact that the
petitioner is entitled to get protection under section 19
(2) of the Act. Therefore, those questions are left open.
8. In the result, this Crl.M.C. is allowed holding
that the petitioner is entitled to get protection under
section 19(2) of the Prevention of Food Adulteration
Act, 1954 and there is no scope for a meaningful
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prosecution against the petitioner and, if the
proceedings against the petitioner is allowed to
continue, the same will amount to abuse of the process
of the court. Accordingly, all proceedings in
S.T.No.7186/2002 on the file of the Addl.Chief Judicial
Magistrate court, Ernakulam pending against the
petitioner alone is quashed. The Crl.M.C. is allowed to
that extent.
V.K.Mohanan,
Judge
Mbs/kvm
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V.K.MOHANAN, J.
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Crl.R.P.NO. OF 200
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J U D G M E N T
CRL.M.C. NO.3310 OF 2005
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DATED: -2-2008