M/S.Desai Brothers Limited Vs. the Food Inspector - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE31T DAY OF JANUARY201411TH MAGHA, 1935 Crl.MC.No. 604 of 2012 () -------------------------- (CC4572011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE) PETITIONERS/ACCUSED NOS.4 : ---------------------------- 1. M/S.DESAI BROTHERS LIMITED1436 KASBAPETH PUNE411011, REPRESENTED BY ITS NOMINEE DEEPAK BHACCHANDRA DESHPANDE2 DEEPAK BHACCHANDRA DESHPANDE MANAGER, BEING THE NOMINEE OF M/S. DESAI BROTHERS LIMITED1436KASBAPETH PUNE411011 BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.GILBERT GEORGE CORREYA RESPONDENT/COMPLAINANT/STATE: ----------------------------- 1. THE FOOD INSPECTOR KOZHIKODE CORPORATION KOZHIKODE68558 2. THE STATE OF KERALA REP.BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA KOCHI-31 R1 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION R BY PUBLIC PROSECUTOR SMT. M.T. SHEEBA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON3101-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 604 of 2012 () APPENDIX PETITIONER'S EXHIBITS: ANNEXURE1TRUE COPY OF REPORT NO.51 DATED1811.2010 OF THE PUBLIC ANALYST ANNEXURE11TRUE COPY OF THE LETTER DATED0501.2011 FROM THE OFFICE OF THE RESPONDENT TO THE1T PETITIONER COMPANY. ANNEXURE111TRUE COPY OF THE LETTER DATED1701.2011 FROM THE1T PETITIONER COMPANY TO THE RESPONDENT ALONG WITH ITS ENCLOURES. ANNEXURE IV TRUE COPY OF THE LETTER NO.146/2010/DFI/KKD DATED3006.2011 FROM THE DISTRICT FOOD INSPECTOR KOZHIKODE TO THE1T PETITIONER. ANNEXURE V TRUE COPY OF THE PETITION DATED1307.2011 FILED BY THE1T ACCUSED BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-1,KOZHIKODE. ANNEXURE VI TRUE COPY OF THE COMPLAINANT DATED2806.2011 FILED BY THE RESPONDENT BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-1 KOZHIKODE. ANNEXURE VII TRUE COPY OF THE MAHAZAR DATED2010.2010 PREPARED BY THE RESPONDENT. ANNEXURE VIII TRUE COPY OF THE SUMMONS DATED1309.2011 IN C.C. NO.457/2011 ISSUED BY THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-1,KOZHIKODE TO THE1T PETITIONER. ANNEXURE VIII(A) TRUE COPY OF THE SUMMONS DATED1309.2011 IN C.C. NO.457/2011 ISSUED BY THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-1,KOZHIKODE TO THE2D PETITIONER. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE Scl. P.D.RAJAN, J ......................................... Crl.M.C.No.604 of 2012 ......................................... Dated 31st January, 2014 ORDER

This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure VI complaint in C.C.No.457 of 2011 of Judicial First Class Magistrate Court-I, Kozhikode. Petitioners are accused 3 and 4 in the above case, which was filed under Section 16(1)(a)(i), 7(i), 2(i-a)(m) of Prevention of Food Adulteration Act, 1954 (in short, 'the Act') against four persons. The first respondent is the Food Inspector, Kozhikode Corporation, who filed the above complaint against the petitioners and others for commission of the above offence.

2. According to the first respondent, on 20.10.2010 at 11 am, he visited the Shop No.9/199, Vishal Gowtham Traders, Court Road, Calicut Corporation and after disclosing his identity, inspected the shop in the presence of first accused and other witnesses and purchased six packets of ginger garlic paste for Rs.75/- which was kept for sale in the shop after giving notice to the first accused. The packets were found sealed. In the presence of the first accused, the packets were divided into three equal parts and sealed at the place of Crmc 604/2012 2 occurrence and after complying with all formalities, he obtained signature of first accused and thereafter prepared a mahazar. The witness present there attested the sample and the packets were handed over to Public Analyst for examination in the Regional Laboratory on 21.10.2010. The remaining two parts of the sample were handed over to the Local Health Authority with Form VII memorandum and specimen impressions. After getting Form III report, the Local Health Authority passed information to the first respondent and he lodged prosecution case against the accused by filing Annexure VI. Petitioners have thus approached this court with this Crl.M.C to quash the above proceedings by invoking the jurisdiction under Section 482 Cr.P.C.

3. Heard both sides. Learned counsel for petitioners contended that Section 13(2) of the Act confers a right to challenge the report of the Public Analyst and send the second sample to be tested by the Central Food Laboratory. Annexure I report was submitted on 18.11.2010 and he sent reply notice on 17.1.2011. Annexure IV request was made on 30.6.2011 only and he received that intimation report only on 8.7.2011. The date of expiry of the sample was on 27.7.2011. Crmc 604/2012 3 Therefore, when his right to examine the sample through the Central Food Laboratory was declined due to the conduct of the 2nd respondent, he is entitled to get the proceedings against him quashed. Learned counsel relied on the decisions reported in R.P.Kapoor V. State of Punjab (1975 SCC866 and Baby Chakrapany V. Cochin University of Science and Technology (2012(2)KLT223.

4. Learned Public Prosecutor strongly opposed the petition and admitted the delay in sending notice to the petitioners and she also contended that there is no evidence to show that notice was received by the petitioners on 8.7.2011. In such situation, petitioners cannot contend that they are deprived of a statutory right available to them. It is submitted that it will not be fair at this stage to quash Annexure VI. Prima facie case is made out against the petitioners.

5. Now the question that arise for consideration is whether there is any delay in giving notice to the petitioners with regard to Public Analyst's Report and if so, was there any hurdle in sending the second sample to be examined in the Central Laboratory. In such a case, Annexure VI complaint has to be quashed. According to the petitioners, they are engaged Crmc 604/2012 4 in manufacturing of food articles throughout India and their products include pickles, curry pastes, curry powders and several other products in the market and the second petitioner is the nominee of the company under Section 17(2) of the Prevention of Food Adulteration Act. It is admitted that on 20.10.2010 at 11 am, the first respondent Food Inspector visited the premises of the shop at 9/199, Vishal Gowtham Traders, Court Road, Kozhikode and the first respondent sold ginger garlic paste which was manufactured by the company. After properly packing and sealing, he took the sample and sent it for analysis to the Local Health Authority and obtained Annexure A1 report from the Public Analyst on 18.11.2010. In the report, it is found that the ginger garlic paste taken from the shop was adulterated and he gave Annexure II communication to the first respondent. After getting Annexure II, first petitioner issued Annexure III on 17.1.2011. In Annexure III it is stated as follows:- "Kindly give us your findings along with Lab. Analysis report to trace back the product & findings". He also requested for personal hearing in the matter, if necessary. Annexure II is the PFA license issued from Pune Crmc 604/2012 5 office. Annexure III(3) is the nomination issued by the company. Annexure IV is the notice issued by the District Food Inspector, Kozhikode, the local Health Authority of Kozhikode to the accused in the above case. In Annexure IV, it is informed that he could submit application before the concerned court within ten days from the date of receipt of notice to get the said sample kept by the Local(Health) Authority be analysed by the Central Food Laboratory. It is found that Annexure IV was sent on 30.6.2011. As per the intimation, on 13.7.2011, Annexure V request, which was to direct the Food Inspector Kozhikode to produce the sample kept in his custody for forwarding it to the Central Laboratory for analysis, was made by the petitioners to the first respondent. Petitioners contended that the date of expiry of the sample was on 27.7.2011. It is found that Annexure IV report was received on 18.11.2010. According to the petitioners, they received it only on 8.7.2011. On that basis, they made Annexure V request. Even though they contended so, no documentary evidence has been adduced by them to show that they received Annexure IV report only on 8.7.2011, the acknowledgment or other receipts are not produced. The Crmc 604/2012 6 only available evidence is Annexures IV and V alone. Section 13(2) of the PFA Act reads thus: " Report of Public analyst - (1)xxxxxx (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory". Therefore the petitioners have the right to send the second sample to the Central Food Laboratory for examination. When such an application is made to the court under sub-section (2), the court shall require the Local Authority to forward the part of the food sample kept by the authority upon request made by the petitioners and forward the food sample to the court within five days from the date of receipt of the said requisition. Annexure V was received on 13.7.2011. Instead of sending the sample on 18.7.2011, the Local Authority sent it only on Crmc 604/2012 7 27.7.2011. Now the controversy is with regard to on which date the intimation was received by the petitioners, for which there is no evidence. In the absence of such evidence, petitioners are at liberty to agitate this aspect in the trial court.

6. The Apex Court in State of Haryana V. Bajanlal (1992 SC Crime 426) held that where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed. The inherent powers of the High Court contemplated u/s 482 Cr.P.C has to be exercised only for the three purposes mentioned in the section. This power cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Therefore it means that if the matter in question is not covered by any provision of the code, it comes into operation, for the three purposes mentioned in the section. Inherent jurisdiction to make such orders necessary to "give effect to any order" under this code or to prevent "abuse of the process" of any court or to secure "the ends of justice". Crmc 604/2012 8 7. Considering the facts and circumstances of the case, I am of the view that this is not a fit case to invoke the jurisdiction under Section 482 Cr.P.C. Petitioners are at liberty to place all their contentions before the trial court on appearance. Crl.M.C is disposed of as above. P.D.RAJAN, JUDGE lgk