Allowed

M.S.Nishad v. the State of Kerala

Kerala HC9 Aug 2016Crl.Rev.Pet/3909/2009

Case brief

AI extract

What is this about?

This Criminal Revision Petition challenged the rejection of a discharge application in a food adulteration case. The Kerala High Court allowed the petition, discharging the accused. Relying on Supreme Court precedent, the court held that prosecutions fail when adulteration is determined using Director General of Health Services standards absent mandatory Central Government prescribed parameters.

What did the court decide?

The criminal revision petition is allowed and the revision petitioners are discharged under Section 245 of the Code of Criminal Procedure.

M.S.Nishad Vs the State of Kerala — Cheque Dishonour | 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 MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938

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Crl.Rev.Pet.No. 3909 of 2009 ( )

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AGAINST THE ORDER/JUDGMENT IN CC 1111/2008 of J.M.F.C.-I,HOSDRUG

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REVISION PETITIONER(S)/PETITIONERS/ACCUSED 3 AND 4:

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1. M.S.NISHAD, AGED 32, S/O M.S.AZAD, 20/1102, KALLAI, CALICUT-3.

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2. AZAD PROCESSED FOODS, 20/1102, KALLAI, CALICUT-673 003, (REPRESENTED BY THE 1ST PETITIONER).

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BY ADVS.SRI.SRINATH GIRISH SRI.E.NARAYANAN

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RESPONDENT(S)/RESPONDENT/STATE:

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THE STATE OF KERALA, REPRESENTED BY THE

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PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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PUBLIC PROSECUTOR SRI.SRI.HRITHWIK

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ANU SIVARAMAN, J.

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----------------------------------------------Crl.R.P.No.3909 of 2009

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----------------------------------------------Dated this the 9^th August, 2016

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O R D E R

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This revision petition is filed by accused 3 and 4 in C.C.No.1111 of 2008 on the file of the Judicial 1^st Class Magistrate Court-I, Hosdurg against an order rejecting an application for discharge filed under Section 245 of the Code of Criminal Procedure. The case was registered against the revision petitioners and others under Section 16 (1)(a) read with Sections 7(1) and 2(i-a)(m) of the Prevention of Food Adulteration Act, 1954 and Rule 5 Appendix B Item No.A.15.28 and Rule 50(1) of the Prevention of Food Adulteration Rules, 1955.

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The prosecution case was that on 10.3.2008, samples of Chilly Sauce was taken by the Food Inspector, Kanhangad from a shop conducted by the 1^st accused and owned by the 2^nd accused. On analysis by the Public Analyst, the samples were found adulterated. The adulteration noted was that the acidity as acetic acid of the samples, analysed by the DGHS method, was found to be 0.6%, when the prescribed level was less than 1%. The accused requested vide CMP.No.4302 of 2008 that the second sample be forwarded to the Central Food Laboratory, Pune and a certified copy of the certificate of analysis of the Central Food Laboratory, Pune is produced as Annexure-3. Though Annexure-3 showed that the acidity as acetic acid

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Crl.RP.3909/09

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in the sample is 1.106% and the certificate of analysis shows that the sample conforms to the standards of fruits & vegetable sauces other than tomato and soya sauce i.e. Chilly sauce as per P.F.A. Rules, 1955, the learned Magistrate was of the view that the analyst had given the opinion that the sample does not conforms to the standards of chilly sauce. The application made by the petitioners for discharge as C.M.P.No.4348 of 2009 was therefore dismissed.

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Heard learned counsel for the revision petitioners and the learned Public Prosecutor.

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Learned counsel for the revision petitioners relied on a decision of the Apex Court reported in Pepsico India Holdings Private Ltd. v. Food Inspector and another [(2011)1 SCC 176] to contend that where samples are declared to be adulterated by adopting standards prescribed by Directorate General of Health Services, in the absence of parameters which ought to have been defined by the Central Government under the Act and Rules thereunder, the samples could not be considered as adulterated. It was held that it is mandatory for the Central Government to prescribe laboratories for testing of food samples/adulterants and to prescribe methods of analysis. In the absence of such prescription, it was held that the prosecution under the Act would fail. This decision has been followed by a learned single Judge of this Court in the decision reported

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Crl.RP.3909/09

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in Gopalakrishnan v. Food Inspector [2013(3) KLT 455], wherein it was held that the provisions regarding prescription of laboratories and methods of analysis are mandatory in nature and in cases which occurred before the laboratories were designated for analysis and the method of notice was not defined, the said report cannot be relied upon by the prosecution.

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It is admitted by the learned Public Prosecutor that Annexure-1 complaint is dated 30.8.2008 and the date of sample taken was 10.3.2008. Annexure-2 report of the public analyst pursuant to the analysis conducted on 7.4.2008 is dated 15.4.2008. In the above circumstances, the law laid down by the Apex Court in Pepsico India Holdings Private Ltd.'s case (supra) would be clearly applicable to the facts of this Court.

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The criminal revision petition is, therefore, allowed and the revision petitioners are discharged under Section 245 of the Code of Criminal Procedure.

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ANU SIVARAMAN

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JUDGE

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vgs10/8

M.S.Nishad v. the State of Kerala

Case brief

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M.S.Nishad v. the State of Kerala

Case brief

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