Quashed

Arjunan v. State of Kerala

Kerala HC10 Dec 2021Crl.MC/5317/2017

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings against accused transporting pan masala. The court held that the offence under Section 118(e) of the Kerala Police Act was not attracted because the seized products lacked tobacco or nicotine, and violations of the Food Safety Act require a special prosecution procedure not fulfilled by the police.

What did the court decide?

Crl.M.C. allowed; Annexure A4 final report and all further proceedings in C.C.No.260/2015 quashed.

Arjunan Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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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 ZIYAD RAHMAN A.A.

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FRIDAY, THE 10TH DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943

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CRL.MC NO. 5317 OF 2017

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CRIME NO.601/2015 OF SHORNUR POLICE STATION

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 CC 260/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,

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OTTAPPALAM

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PETITIONERS/ACCUSED 1 & 2:

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1ARJUNAN
S/O.VASU, MANAPARAMBIL HOUSE,
CHOONDAL, THRISSUR DISTRICT, PIN-680 502.

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2SHAJI
S/O.VELAYUDHAN, ELAVANTHRA HOUSE,
KUNNAMKULAM, THRISSUR DISTRICT.

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BY ADV SRI.S.SAJU

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RESPONDENT:

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STATE OF KERALA
REPRESENTED BY THE S.I. OF POLICE,
SHORNUR POLICE STATION,
PALAKKAD THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV.
SRI.ARAVIND V. MATHEW

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
10.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 5317 OF 2017

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ORDER

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The petitioners are the accused Nos.1 and 2 in Crime No.601/2014 of Shornur Police Station which is now pending as C.C.No.260/2015 before the Judicial First Class Magistrate Court Ottappalam. The offences alleged against the petitioners are under Section 118(e) of Kerala Police Act, 2011.

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The prosecution case is as follows: On 23.07.2014, when the Sub Inspector, Shornur and his team were conducting patrol duty, a secret information was received by them to the effect that a mini lorry parked in front of the Shornur Railway Parcel Office is containing banned tobacco products. Acting upon the said information, the Police party conducted an inspection and found a mini lorry bearing registration No.KL-46-C-8691. Upon verification, it was found that it contained 28 sacks of pan masala products. Two persons who were in the vehicle were also arrested and the articles were seized. Consequently, Crime No.601/2014 was registered for the offences punishable under Section 118(e) of Kerala Police Act, 2011 and also under Section 7 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. After completing the investigation on the said FIR which is Annexure A1 in this proceedings, a final report was filed by the Police for the offence under Section 118(e) of Kerala Police Act. Annexure

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CRL.MC NO. 5317 OF 2017

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A4 is the said final report and cognizance of the same was taken by the learned Magistrate as C.C.No.260/2015.

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This Crl.M.C. is filed seeking to quash all further proceedings in Annexure A4 final report and in the above mentioned Calendar Case.

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Heard Sri.Saju S. Nair, learned counsel for the petitioners,

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and Sri.Aravind V. Mathew, learned Public Prosecutor for the State.

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Main contention put forward by the learned counsel for the petitioners is that the proceedings initiated against the petitioners herein were under the impression that the articles which were seized in the said inspection were prohibited items, as those were pan masala containing tobcacco and nicotine.. However, in the chemical examination report which is marked as Annexure A3 herein, no presence of tobacco or nicotine could be found. It was pointed out by him that what is prohibited by the Government is the pan masala containing tobacco and nicotine alone. Therefore, it was contended that in the absence of tobacco and nicotine in the aforesaid products, the offences under Section 118(e) is not attracted. It was also contended that the petitioners were only transporting the aforesaid articles and no investigation was

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CRL.MC NO. 5317 OF 2017

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made by the Police with regard to the assigners and assignees of the

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aforesaid products. In such circumstances, he sought for an order to quash the entire proceedings as against them.

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On the other hand, the learned Public Prosecutor would contend that, even though the presence of tobacco and nicotine could not be found, Annexure A3 certificate of examination would clearly indicate

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that, it contained synthetic food colour which is harmful to the health and therefore the offence is attracted.

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The specific case of the petitioners is that, even though the entire proceedings were initiated under the premise that the pan masala which was seized from the possession of the petitioners contained tobacco and nicotine. The pan masala containing tobacco and nicotine were prohibited by the State Government as per the order bearing No.A/1327/2012/CFS dated 22.05.2012 which was published in the gazette on 23.05.2012. The operative portion of the aforesaid notification which is issued under Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 reads as follows:

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CRL.MC NO. 5317 OF 2017

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“Now, THEREFORE, in pursuance of regulations 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, the manufacture, the storage, the sale or the distribution of gutkha and pan masala containing tobacco or nicotine as ingredients, by whatsoever name it is available in the market, is hereby prohibited in the State of Kerala in the interest of Public Health.”

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From the said notification, it is evident that the prohibition is applicable only in respect of gutkha or panmasala containing tobacco or nicotine as ingredients. The aforesaid aspect has been clarified by this Court in judgment dated 03.10.2012 in W.A. No.1685 of 2012 also. In the light of the above, it is evident that, the articles seized from the possession of the petitioners are not products prohibited by the Government.

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When considering the contention of the learned Public Prosecutor that Annexure A3 certificate of examination contained synthetic food colour, it is very doubtful as to whether a prosecution under Section 118(e) of Kerala Police Act is sustainable for such offence. Section 118(e) of Kerala Police Act reads as follows:

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“118. Penalty for causing grave violation of public order or danger.- Any person who,-

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(a)xxxxxxx (b)xxxxxxx

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(c)xxxxxxx

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(d)xxxxxxx

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CRL.MC NO. 5317 OF 2017

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(e) knowingly does any act which causes danger to public or failure in public safety; or”

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The aforesaid provision gets attracted when a person does any act

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knowingly which causes danger to public or failure in public safety. In this case the only allegation is that certain articles were found in the lorry which was in possession of the petitioners herein and the said articles were found to be food items containing synthetic food colour. Even in the final report itself it is stated by the Government Analyst, Regional Analytical Laboratory, Ernakulam that, the synthetic food colour contained in the same, is harmful to the health of humans and it amounts to violation of Section 3.1(zz)(viii) of Food Safety Standards Act, 2006. Thus it is evident that violation found was that of the provisions of Food Safety and Standards Act, 2006. The aforesaid Act contains a specific procedure contemplated for initiating prosecution and the said prosecution can be initiated only on a complaint submitted by the authorised persons mentioned in the said provision. None of the provisions contained in the said Act, empower the Police to submit any final report in respect of the violations of the provisions of the said Act. Food Safety and Standards Act, 2006 is a special enactment operating

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CRL.MC NO. 5317 OF 2017

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the field of adulteration of food items. Even as per the allegations in the complaint the violations alleged is that of Food Safety and Standards Act, 2006. When the said statute contemplates a special procedure for prosecuting the violation of the same, a general provision as contained in Section 118(e) of Kerala Police Act is not legally sustainable. It is a well settled position of law that when a statute prescribes a particular procedure for carrying out some thing, it can only be performed in the manner as mentioned therein. In this case, the procedure actually contemplated by the Food Safety and Standards Act, 2006 has not been resorted to and hence the offence under Section 118(e) is not attracted.

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There is yet another reason which makes the above proceedings unsustainable. Learned counsel for the petitioners brought my attention to the description of the sample received by the food analyst, which is mentioned in Annexure A3. As against the column of physical appearance, it is mentioned that the substances were received in 65 paper sachet enclosed in a labeled plastic cover in open condition. Thus it was pointed out that the samples which were received by the Food Analyst were in open condition and therefore, the veracity of the

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CRL.MC NO. 5317 OF 2017

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8

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sample cannot be ascertained. Thus on this ground also there is clear shadow of doubt as to the prosecution case which would have serious impact on the possibility of success even if the prosecution is allowed to continue.

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Thus in the totality of the facts and circumstances of the case, I am of the view that, the offence under Section 118(e) of the Kerala Police Act is not attracted against the petitioners herein. Chances of a successful prosecution are very bleak and therefore, allowing the proceedings to continue would amount to unnecessary wastage of judicial time and resources.

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In such circumstances, I allow this Crl.M.C.. and Annexure A4 final report in Crime No.601/2014 of Shornur Police Station and all further proceedings in C.C.No.260/2015 on the file of Judicial First Class Magistrate Court, Ottappalam are hereby quashed.

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ZIYAD RAHMAN A.A.
JUDGE

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SCS

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CRL.MC NO. 5317 OF 2017

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APPENDIX OF CRL.MC 5317/2017

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PETITIONER ANNEXURE
ANNEXURE A1 :CERTIFIED COPY OF THE FIR IN CRIME
NO.601/2014 DATED 23-7-2014 OF SHORNUR
POLICE STATION.
ANNEXURE A2 :CERTIFIED COPY OF SEIZURE MAHAZAR DATED
23-7-2014.
ANNEXURE A3 :CERTIFIED COPY OF THE REPORT OF FOOD
ANALYST REGIONAL ANALYTICAL LABORATORY,
KAKKANAD VIDE LETTER NO.10098/2014 DATED
17-10-2014.
ANNEXURE A4 :TRUE CERTIFIED COPY OF THE FINAL REPORT
IN CRIME NO.601/2014 OF SHORNUR POLICE
STATION DATED 4-11-2014.

Arjunan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Arjunan v. State of Kerala

Case brief

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What did the court decide?

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