ORDER
V.K. Mohanan, J.
1. The prayer in the above Crl. M.C. is to quash Annexure-G order as well as Annexure-H complaint and all further proceedings in S.T. 1279/2001 on the file of the Judicial First Class Magistrate Court-1, Thiruvalla. The above Crl. M.C. is filed at the instance of the accused in S.T. No. 1279/2001.
2. The case of the petitioners can be summarised as follows:
The allegation against the petitioners is that on 20-10-2000, the 1st respondent/complainant collected sample of Bengal Gram Flour from the shop of the 1st accused. In the complaint the 1st accused is shown as the vendor, the 2nd accused is arrayed as the manufacturer and the 3rd accused as the distributor. After collecting the sample, the same was sent for chemical analysis and Annexure A report was obtained whereby it is opined that the sample contained 35.0 per cent of Peas dhal starch. On the strength of the Annexure A report, the 1st respondent herein preferred Annexure B complaint against the petitioners/accused alleging offences punishable under Sections 2(ia)(m), 7(i), 16(1)(a)(i), read with Rule 5 Appendix B. A. 18.04 of the Prevention of Food Adulteration Act, 1954. On the basis of Annexure B complaint, the Court below took cognizance and process were issued to the accused/petitioners and on receiving summons, the 2nd accused made an application for sending the second sample to the Central Food Laboratory for chemical analysis. In pursuance of the second analysis, Annexure D certificate was issued which belied the allegation of adulteration contained in Annexure A report. But in Annexure D certificate, it is opined that the sample was misbranded. According to it, with the month and year in capital letters up to which the product is best for consumption was not mentioned on the label and therefore, the sample was misbranded. It is the further case of the petitioners/accused that after Annexure D certificate, the complainant/1st respondent filed a petition for amendment of the complaint to incorporate an offence under Rule 32(g) and that petition was allowed by the Court below as per Annexure G order overruling Annexure-F objection filed by the petitioners/accused. Therefore, Annexure-G order and Annexure H amended complaint are unsustainable in law. It is also the case of the petitioners that the recitals in Annexure-C mahazar, a document relied on by the complainant, would show that the allegation regarding violation of Rule 32(g) is false. Thus the petitioners/accused challenge Annexure-G order and Annexure-H amended complaint in this proceedings.
3. I have heard Mr. T.A. Shaji, the learned Counsel appearing for the petitioners and also the learned Public Prosecutor Sri Jai George.
4. Reiterating the contentions raised in the Crl. M.C., the learned Counsel for the petitioners submitted that the Court below took cognizance against the petitioners for the offences mentioned in Annexure-B complaint wherein the allegation is that the sample taken from the 1st accused/vendor is adulterated and the allegation is raised on the basis of Annexure A report by which it is opined that the sample contained about 35.0 per cent Peas Dhal Starch. It was on the basis of the above factual allegation, the Court took cognizance and decided to proceed against the petitioners/accused for the offences mentioned in Annexure B complaint. The learned Counsel further submitted that when the second sample was sent for chemical analysis at the instance of the petitioners/accused, the Central Food Laboratory, as per its Annexure-D report, which is a document relied on by the prosecution/complainant, opined that the sample conforms to the standards of Besan (Bengal Gram Flour) laid down under Item No. A, 18.04 of Appendix 'B' of P.F.A. Rules (1955). The above opinion is diametrically opposed to Annexure A report of the Public Analyst, Government Analysts Laboratory, Thiruvananthapuram, on the basis of which Annexure B complaint was filed upon which the Court took cognizance. Therefore, the factual allegation which is the basis for taking cognizance had gone and, therefore, Annexure B complaint itself is liable to be quashed and the accused are entitled to get acquittal or discharge. It is also the contention of the learned Counsel for the petitioner that in Annexure C mahazar, the complainant himself mentioned the date of packing as 18th September, 2000 and date of expiry as 17th March, 2001. Now, Annexure D report of the Central Food Laboratory stated that the month and year in capital letters up to which the product is best for consumption is not mentioned on the label and hence, the sample is misbranded. The said opinion is unwarranted and opposed to the factual finding arrived on by the complainant on examination of the food article as evidenced by Annexure-C mahazar. Therefore, the counsel submitted that the proceedings based upon the mutually contradictory documents relied on by the complainant/prosecution itself will amount to abuse of process of Court. It is also the case of the counsel for the petitioner that Annexure G order is not legally sustainable as there is no provision in the Code of Criminal Procedure or in any other relevant Statute enabling the Court to allow amendment of the complaint after taking cognizance upon the same.
5. I have carefully considered the contentions advanced by the learned Counsel for the petitioners as well as the learned Public Prosecutor. As the contentions are purely based upon the documents which are relied on by the complainant/prosecution, I have closely scrutinized the documents available on record as well.
6. Admittedly, the Court below took cognizance upon Annexure B complaint more particularly based upon the allegations contained therein which supported by Annexure A report of the Government Analyst's Laboratory, Thiruvananthapuram. Thus, the prosecution case is that the sample collected from the 1st accused vendor was seen adulterated as the same contained about 35.0 per cent of peas dhall starch. It is on the basis of the above finding of the Public Analyst of the State Government Analyst's Laboratory, the first respondent preferred Annexure B complaint wherein the allegation is that the accused are liable for prosecution for adulteration of food article and, accordingly, they are charged under Sections 2(ia)(m), 7(i), 16(1)(a)(i) read with Rule 5 Appendix B.A. 18.04 of the Prevention of Food Adulteration Act, 1954. Thus, the Court below is fully justified in taking cognizance against the petitioners/accused for the said offence based upon the said allegations. But when the second sample was analysed in the Central Food Laboratory at the instance of the accused, on their appearance before the Court pursuant to summons issued, the Central Food Laboratory issued Annexure D certificate wherein there is no report or opinion that the sample taken from the accused is adulterated one. Admittedly, the above finding and opinion of the Central Food Laboratory is totally against the opinion of the Government Analyst's Laboratory, Thiruvananthapuram and by virtue of Section 13(3) of the P.F.A. Act, Annexure D report superseded Annexure A report. If that be so, the very root and basis of the case of the complainant is lost and therefore, no proceedings against the petitioners/accused shall be allowed to continue, pursuant to the cognizance taken by the Court below upon Annexure B complaint. Under such situation, the only course open to the Court below was to discharge the accused. It is equally important to note that even if the prosecution is allowed to continue, there is no likelihood of a successful prosecution against the petitioners/accused on the basis of the cognizance taken by the Court upon Annexure B complaint, more particularly, upon Annexure A report of the Public Analyst, since the same is negated and superseded by Annexure D report.
7. Another contention advanced by the counsel for the petitioners is that the observation and finding contained in Annexure D report to the effect that the sample is misbranded is also against the complainant's case itself. In this juncture, it is worthwhile to peruse Annexure C mahazar prepared by the complainant connected with the sampling of the food article in question. In Annexure C, under the caption 'other details', the following factual details are given: 'There was identical label on the purchased Bengal Gram flower'. The following facts are also incorporated in the mahazar: 'Sugandhi Gram Dal Powder, Kadala mavu, net weight 500 gms., Dt. of pkg. 18Sep. 2000. D/- of Exp. 17 Mar. 2001, Lot No. 8-2000 M. R.P.Rs. 17. Bhavvani Food Industries Mannankarachira. Thiruvalla 689102, Kerala. Ingredients Gram Dal. There was bill'. 'It is seen that as per Bill No. 2978 dated 6-10-2000 K/Mav purchased from Mann Distributors Karthi Nivas Mannankarachira, Thiruvalla, 689102'. So, the documents relied on by the prosecution itself shows that the sample collected through purchase contained the identical label and also contained the details such as the date of packing as 18th September, 2000 and date of expiry as 17th March, 2001. The complainant is the master of complaint. It is for him to decide as to which are the facts to be incorporated in the complaint for effective prosecution. Probably, the non-mentioning of the month and year in capital letters up to which the product is best for consumption was not relevant and hence he might have deliberately omitted to note the same in Annexure C mahazar. Therefore, his allegation in the complaint is confined to the adulteration of the food article in question. In the complaint, there is no allegation that the petitioners have committed the offence of misbranding the food article. Annexure D is now proposed to be used as an evidence against the petitioners. The question of adducing evidence raises only when there is plea or allegation. In the absence of allegations or pleading, there is no question of adducing evidence. In the present case, as the Court has already taken cognizance based upon the allegation of adulteration of food article, neither the Code nor any other statute or procedure contemplates substituting another offence when the first allegation became baseless and factually incorrect. For the above reason also, Annexure D is not helpful for the complainant to proceed against the petitioners/accused. In short, through Annexure D report, the material point which was to be answered is whether the food article in question was an adulterated one or not. As evidenced by Annexure D, the answer is negative and therefore no prosecution can continue against the petitioners for the offence which cognizance was taken and there is no question of taking fresh cognizance based upon Annexure D report.
8. In this juncture, it is relevant to note that the petitioners in this Crl. M.C. questioned the legality and validity of Annexure G order passed by the Court below. Annexure G order was passed on Annexure E petition filed by the 1st respondent/complainant. No provision is shown in Annexure E petition for filing such petition. The prayer in Annexure E Petition is to the effect that the complaint may be amended and the case may be allowed to prosecute by incorporating Section 16(1)(a)(i) read with Section 7(ii) and Section 2(ix)k of the PFA Act 1954 and Rule 32(g) of PFA Rules 1955. To Annexure E petition, the accused filed a detailed objection as evidenced by Annexure F. Finally, overruling the objection, the Court below passed Annexure G order whereby, the complainant is allowed to effect amendment of the original petition within 7 days from the date of that order. I have gone through Annexure G order. Even though Annexure G order was repeatedly perused, I could not understand as to under what provision, the learned Magistrate has issued Annexure G order. The only reason given by the Court below is that in the present case, trial has not been commenced and therefore there is nothing in the Code of Criminal Procedure preventing the complainant to amend the complaint. It is also the opinion of the Court below that by allowing the amendment, no prejudice will be worked out against the accused. The above reasoning appears to be without any basis and unsupported by any authority. There is no provision in the Criminal Procedure Code or any other statute relevant in this case enabling the complainant or the Court to effect the amendment of the complaint after taking cognizance. Of course, under Section 319 Cr.P.C., during the course of taking evidence, if the involvement of certain other persons comes to the notice of the Court, the Court can implead them as accused. Similarly, in the light of Section 19(2) in the P.F.A. Act, the accused can also take statutory plea and if he is succeeded in establishing such plea or otherwise the manufacturer or distributor or dealer can also be arrayed as an accused by invoking Section 20-A of the Act. No provision has been brought to my notice enabling the Court to amend the complaint after taking cognizance upon the same. In the present case, it is pertinent to note that originally, the complaint was filed with the allegation that the sample was adulterated, but the subsequent report of the Central Food Laboratory belied the said allegation and the present attempt of the complainant/respondent is only to proceed with the vexatious complaint against the petitioners/accused, and the same shall not be allowed. In the absence of specific power enabling the Court to accord sanction for amendment of complaint, that too, after taking cognizance on certain sets of specific allegations, the amendment will certainly prejudices to the interest of the accused and. if such a course is allowed, there will not be any finality in criminal proceedings. In police case, on getting fresh evidence, the investigating agency can undertake further investigation in view of Section 173(8) of Cr.P.C. and the Court can accept the same and amend the charge, if the same are otherwise legal. But no such power is given either to the Court or to the complainant for amending the complaint, that too, after taking cognizance.
9. The Apex Court in the decision in Food Inspector v. Srinivasa Shenoy : 2000CriLJ3498 has held that fresh sanction is not necessary to prosecute on the basis of the certificate of Director, Central Food Laboratory superseding the report of the Public Analyst. In the said decision, the Apex Court has held that what was in evidence in the form of Report of Public Analyst stands substituted, during the evidence stage, by the certificate of the Director of Central Food Laboratory and no legal provision require the case to be switched back to the pre-institution stage. In the above decision, the point considered by the Apex Court is that whether fresh sanction was necessary in view of Sub-section (5) of Section 216 of Cr.P.C. which reads:
If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
After considering the scope of Section 216(5) Cr.P.C. and Sections 20 and 13(2-D) of the P.F.A. Act, the Supreme Court has held that no fresh sanction is necessary and the prosecution can be continued. In the above decision of the Supreme Court, sample of 'Toor Dal' was taken and sent to Public Analyst and after analysis, reported that the sample contained Kesari Dal and therefore, a complaint was filed alleging that the accused therein has committed the offence of adulteration and punishable under Section 16(1A) of the Act read with Section 2(1)(h) and Section 7(1) of the Act, more or less the same offence as in the present case. Subsequently, when the sample sent to the Central Food Laboratory for chemical analysis in the above case, it was reported that the sample does not contain 'Kesari Dal' but the food article was adulterated since the sample contained synthetic Coal Tar Dye (Tarterzine). It is in the above factual background, the Apex Court has held:
The facts on which the prosecution is founded under the Act were broadly stated that the accused had sold adulterated Toor Dal to the Food Inspector, on 15-4-1996. Variation regarding the reasons or the data by which two different Analyst had reached the conclusion that the sample is adulterated is not sufficient to hold that the basic facts on which the prosecution is founded, have been altered.
(Emphasis supplied)
But in the present case, the situation is entirely different. Here, the allegation is that the accused have committed the offence of adulteration of food article in question and that allegation was supported by Annexure A report of the Public Analyst. By virtue of Section 13(2-D), if once the sample sent to the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution, until the receipt of the result of the analysis from the Central Food Laboratory.
10. Sub-section (3) of Section 13 further declare that the certificate issued by the Director of the Central Food Laboratory under Sub-section (2-D) of Section 13 shall supersede the report given by the Public Analyst under Sub-section (1). Thus, in the present case, Annexure A report is superseded by Annexure D report of the Central Food Laboratory by virtue of Sub-section (3) of Section 13 and thus the very genesis of the prosecution has gone. It is worthwhile to recollect that, originally, the sanction was given for the prosecution on the allegation that the food article in question was adulterated and, that too, based upon Annexure A report of the Public Analyst. By operation of Sub-section (3) of Section 13 of the Act, Annexure A report is superseded and the net result will be that the entire prosecution case for which cognizance was taken entailed in failure. Therefore, the cognizance taken upon the allegation of adulteration of food article will not continue any further and hence, the prosecution cannot be proceeded further for an entirely different allegation and offence based upon Annexure D report for which there is no allegation and pleadings in the complaint as such. Under such circumstances, the Court below ought to have discharged the petitioners/accused.
11. In this juncture, it is apposite to consider the scope of Section 13 of the Act. On understanding the scheme designed through various provisions thereunder. Sub-section (2-D) of Section 13 of the PFA Act 1954 assumes much importance, which says:
Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory the Court shall not continue with the proceedings pending before it in relation to the prosecution.
12. The Legislature has, by using their wisdom, incorporated such a statutory embargo with specific intention. The main intention is to give authority and opportunity to the Court concerned to take appropriate decision on the basis of the outcome of the analysis conducted in the Central Food Laboratory. If the report is against the prosecution and in favour of the defence, then it is for the Court to decide on the given facts and circumstances of the case as to whether the proceedings be resumed against the accused or discharge them. Certainly, if the report is again in favour of the prosecution and against the accused, then also, for the Court to continue the proceedings from the stage where it is stopped. As in the present case, if the report from the Central Food Laboratory is diametrically opposed to the prosecution case, then, on the basis of the particular facts and circumstances involved, the Court has no option but to discharge the accused. In the decision cited supra, the allegation was adulteration of food article and the said allegation was further confirmed on the basis of the report of the Central Food Laboratory, even though there was variation with respect to the substance used for adulteration. In that case also the allegation is one and the same even after the report of the Central Food Laboratory. But in the present case, what was revealed through Annexure D report is an entirely new story that the sample was misbranded and negated the earlier allegation of adulteration. But when cognizance was taken upon Annexure B complaint, there was no such allegation. So, on the basis of Annexure D Report, the allegation seems to be entirely a different one which shows that the main plank of the prosecution has been broken for which the cognizance was taken, therefore, the Court below after realising the above intention behind Section 13(2-D), proper steps ought to have been taken to discharge the accused/petitioners. But in the present case, even after getting a negative report against the prosecution, the Court below, at the instance of the complainant by passed the normal procedure and instead of discharging the accused, allowed to amend the complaint and opted to proceed against the accused upon a totally unfounded allegation. Therefore, the very purpose behind Section 13(2-D) of the PFA Act has been defeated by the irregular and illegal course adopted by the Court below.
13. In the result, I am of the view that, Annexure G order of the Court below is illegal and unsustainable and the continuation of the proceedings against the petitioners based upon Annexure G order and Annexure D report will amount to abuse of process of Court. Therefore, Annexure G order and Annexure H complaint and all proceedings against the petitioners in S.T. 1279/2001 pending before the Judicial First Class Magistrate Court-I, Thiruvalla are quashed. The Crl. M.C. is accordingly allowed. There is no order as to costs.