Allowed

Yahia.N. (Nadukkandiyil v. Food Inspector

Kerala HC27 Oct 2016Crl.MC/2423/2015

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal miscellaneous petition to quash criminal proceedings regarding a food adulteration charge. The court held that since the relevant Act was repealed in 2011 after the analysis report was issued, and the lower court failed to apply the mandatory requirement that analysis be done in a defined laboratory, the prosecution was unsustainable.

What did the court decide?

The criminal proceedings in C.C. No. 1198 of 2014 stood quashed, and all further proceedings in that case are stayed.

Yahia.N. (Nadukkandiyil Vs Food Inspector — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938

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Crl.MC.No. 2423 of 2015 ()

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CC 1198/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA.

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PETITIONER/ACCUSED:

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YAHIA.N. (NADUKKANDIYIL), AGED 49 YERS, S/O.MAMMUUTTY, VENDOR AND PFA LICENSEE, AS OILS AND FLOR MILL, KANICHAR, KANICHAR PO, KANNUR DISRICT, PIN- 670674.

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BY ADVS.SRI.ABU MATHEW SRI.AJU MATHEW SRI.ABHILASH MATHOOR

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RESPONDENT(S)/COMPLAINANT AND STATE:

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1. FOOD INSPECTOR, KOOTHUPARAMABA CIRCLE, KANICHAR GRAMA PANCHAYATH, KUTHUPARAMBA PO, KANNUR DISTRICT, PIN-670643.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

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BY PUBLIC PROSECUTOR SRI.M.R.DHANIL

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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mbr/

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Crl.MC.No. 2423 of 2015 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEXURE AI: CERTIFIED COPY OF THE REPORT DATED 17.12.2010 OF THE PUBLIC ANALYST, REGIONAL ANALYTICAL LABORATORY, CALICUT. ANNEXURE A2: CERTIFIED COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA AS CC.NO.1198/2014. RESPONDENT(S)' ANNEXURES: NIL -----------------------//TRUE COPY// P.S. TO JUDGE mbr/

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RAJA VIJAYARAGHAVAN.V, J

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----------------------------------------

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Crl.M.C. No.2423 of 2015

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-----------------------------------------

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Dated this the 27^th day of October, 2016

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O R D E R

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1.The petitioner herein is the accused in C.C.No.1198 of 2014 on the file of the Judicial Magistrate of the First Class, Koothuparamba. In the said proceeding, the petitioner faces prosecution for having committed offence punishable under Section 16 (1) (a) (i) read with Section 7 (i) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the PFA Act” for short) and under Rule 5 Appendix BA 17-01 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as “the PFA Rules” for short). The aforesaid proceeding is sought to be quashed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure.

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Crl.M.C.2423/2015

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2.The prosecution allegation is that on 10.11.2010, the Food Inspector, Koothuparamba Circle, inspected AS Oil & Flour Mill run by the petitioner and purchased 1500 ml of coconut oil for the purpose of analysis. The said sample was sealed and labelled in accordance with the provisions of the Act and Rules. One sample was forwarded to the Public Analyst, Regional Analytical Lab, Calicut, for the purpose of analysis. The report revealed that the sample did not conform to the standards prescribed for coconut oil falling under Item No. A.17.01 of Appendix B of the Rules and is therefore adulterated. Consequent to the same, Annexure-A2 complaint was filed before the court below.

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3.Heard learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

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4.The learned counsel submits that a Division Bench of this

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Court in Rasheed N.K. v. Food Inspector , Thalassery (2016 (1) KLD 704) after relying on the ratio of the judgment of the Apex Court in Pepsico India Holdings

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Crl.M.C.2423/2015

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Pvt. Ltd v. Food Inspector and another [2010 (4) KLT 706 (SC)], has laid down that Section 23 (1A) (ee) and (hh) of the Prevention of Food Adulteration Act are mandatory, and any prosecution instituted under the Act, in violation of the said provisions cannot be sustained. According to the learned Counsel, the method of analysis adopted by the Public Analyst is not a validated one as prescribed under S.23 (1A) (hh) and the laboratory where the analysis was conducted was not a defined one for such examination under S.23 (1A) (ee) of the Act.

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5.The learned Public Prosecutor would counter the submissions and would content that the principles laid down cannot be extended to the case on hand. It is further submitted that these aspects are to be raised before the trial Court and sought for dismissal of the petition .

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6.I have considered the rival submissions. Admittedly, the complaint was laid solely on the strength of the Annexure-

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Crl.M.C.2423/2015

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A1 report of the Public Analyst. The said report is dated 17.12.2010. It was found that the food item is adulterated as it did not conform to the standards prescribed for coconut oil falling under Item No. A.17.01 of Appendix B of the Rules. The Division Bench in Rasheed N.K. (Supra), after interpreting the various provisions of Act 37 of 1954, in line with the pronouncement of the Apex Court in Pepsico Case (Supra), has held that in order for the Analyst report to become the basis for launching a successful prosecution, the analysis of the food has to be conducted in a laboratory defined under S. 23 (1A) (ee) of the Act.

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7.It is beyond dispute that Act 37 of 1954 was repealed as per the notification issued by the Central Government dated 04.08.2011 by virtue of powers under S. 97 (1) of the Food Safety and Standards Act, 2006 and the same had come into force on and from 05.08.2011. It has been laid in Rasheed N.K. (Supra) that till repealing of Act 37

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Crl.M.C.2423/2015

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of 1954 no laboratory had been defined in terms of S.23 (1A) (ee) of the Act 37 of 1954. In the case on hand the report is dated 17.12.2010 which in other words means

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that the laboratory where the analysis was conducted could not have been a defined lab. If that be the case the taking of cognizance on the basis of the said report cannot be sustained. The continuance of prosecution on the basis of Annexure-A21 complaint cannot be sustained as it is nothing but an abuse of process of law.

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In the result this petition is allowed and all further proceedings in C.C. No.1198 of 2014 of the Judicial Magistrate of First Class, Kuthuparamba will stand quashed. Sd/-

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RAJA VIJAYARAGHAVAN.V. JUDGE

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vps

Yahia.N. (Nadukkandiyil v. Food Inspector

Case brief

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Yahia.N. (Nadukkandiyil v. Food Inspector

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