BEENA PALLIYIL RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are the accused in C.C.282/2005 on the file of the Judicial First Class Magistrate's Court, Kodungallur taken cognizance for the offence under section 16(1) (a.) (i) (ii) read with section 2 (ia) (ix) (d) and 7 (ii) of Prevention of Food Adulteration Act. Prosecution case is that on 16.9.2004 at 1-45 p.m. Food Inspector, Kodungallur Circle went to the Family Centre Supermarket at Kalamuri of Kaipamangalam Panchayat and disclosing his identity purchased urd whole and prepared three samples and sent one of the sample to the Public Analyst and the other two to the Local Health Authority. Annexure A2 report or Public Analyst was obtained to the effect that the sample is coated with an. inorganic matter and therefore misbranded as per Section 2 and (d) of Prevention of Food Adulteration Act. Based on the report, Annexure A1 complaint was filed which was taken cognizance by the learned Magistrate. Petitioners exercised the right available under section 13(2) of the Act and sent one of the samples kept at the Local Health Authority for examination by Central Food Laboratory and after analysis Annexure A3 certificate was issued stating that the sample contravens Section 2(ix)(d) of Prevention of Food Adulteration Act as 0.38% of talcum was found which shall be absent as per the standard prescribed. This petition is filed under section 482 of Code of Criminal Procedure to quash the cognizance taken contending that in order to sustain the charge of misbranding under section 2(ia)(ix)(d), the powder or coating must be to conceal the damage of the article or to make it appear better of or of greater value than it really is and when the complainant does not disclose an allegation that the polishing or coating of talc was to conceal the fact that the article was damaged or to make it to appear better of or greater value, there is no misbranding and in such circumstances, there cannot be a conviction. It is contended that talc is actually wheat powder applied for the purpose of preventing the food article from mixing with other balls and the entire talc will be washed with water before it is used for consumption and it is a necessary ingredient to make the product retain its quality and therefore continuation of the prosecution is only an abuse of process of the court and hence it is to be quashed. Learned counsel appearing for the petitioners and the learned Public Prosecutor were heard.

(2.) Standard prescribed for Urd whole in Appendix B A.18.06.6 is that urd whole shall consist of seeds Of pulses (mungo Linn) and it shall be sound, dry, sweet and wholesome and shall conform to the standard provided under clauses (i) to (vii), providing that the total of foreign matter, other edible grains and damaged grains shall not exceed 9 percent by weight. Annexure A2 report of the Public Analyst is superseded by Annexure A3 report of the Central Food Laboratory as provided under section 13(3) of the Act. Annexure A3 report shows that the percentage of moisture is 9,56%. The standard prescribed shows that it can be upto 14%. Foreign matter permissible is 1%. The presence of talc is 0.38%. Annexure A3 report shows that the contravention is of Section 2 (ia)(ix)(d) of the Act.

(3.) Misbranded is defined under section 2(ix) (d) as follows:-