M MOHAMMED AJMAL Vs. C T ANTONY

JUDGEMENT

(1.) This is a petition filed under Section 482 of the Code of Criminal Procedure by the second accused in S.T. No. 10199/98 pending on the file of the Judicial First Class Magistrate, Irinjalakuda for quashing Annexure-A complaint filed by the Food Inspector who is the first respondent herein. In the complainant it is averred that on 4.8.1997 the first respondent inspected the shop conducted by the first accused in the case and purchased samples of Ice Cream Mix manufactured by the petitioner and the sample so purchased was found to be adulterated as it does not conform to the standards prescribed for the dried Ice Cream Mix under the Prevention of Food Adulteration Act, hereinafter referred to as "the Act". It is averred that the petitioner and first accused have committed the offences punishable under Sections 2(ia)(m) and 7(i) read with Section 16(1)(a)(i) of he Act and Rule 5 - Appendix B Item No. A. 11.02.08.01 of he Prevention of Food Adulteration Rules. This is a petition filed under Section 482 of the Code of Criminal Procedure by the second accused in S.T. No. 10199/98 pending on the file of the Judicial First Class Magistrate, Irinjalakuda for quashing Annexure-A complaint filed by the Food Inspector who is the first respondent herein. In the complainant it is averred that on 4.8.1997 the first respondent inspected the shop conducted by the first accused in the case and purchased samples of Ice Cream Mix manufactured by the petitioner and the sample so purchased was found to be adulterated as it does not conform to the standards prescribed for the dried Ice Cream Mix under the Prevention of Food Adulteration Act, hereinafter referred to as "the Act". It is averred that the petitioner and first accused have committed the offences punishable under Sections 2(ia)(m) and 7(i) read with Section 16(1)(a)(i) of he Act and Rule 5 - Appendix B Item No. A. 11.02.08.01 of he Prevention of Food Adulteration Rules.

(2.) According to the petitioner, under the Act and the Rules the standard is fixed only for Dried Ice Cream Mix and what is manufactured by him is not Dried Ice Cream Mix; but it is only a proprietary food, for which no standard has been fixed under the Act and Rules and hence the complaint itself is not maintainable. In O.P. No. 5365 of 1998 (Corn Products Co. (India) Ltd. v. Director General of Health Services and others), which was decided on 8.6.2001, this Court considered whether Rex Ice Cream Mix marketed by the petitioner in that case is Dried Ice Cream Mix and found that Rex Ice Cream Mix is different from Dried Ice Cream Mix and the same is a proprietary food, for which no standard has been prescribed under the Act and Rules. Based on the decision in the said Original Petition, this Court allowed Crl. M.C. 5412 of 1998 filed by the petitioner in the Original Petition and quashed the complaint filed by the Food Inspector in that case. In Crl. M.C. 5452 of 1998 also this Court found that Ice Cream Mix manufactured by the petitioner in that case was a proprietary food, for which no standard has been prescribed under the Act and Rules. The decision rendered by this Court in O.P. 5365 of 1998, which has already become final. I have gone through the reasoning's contained in O.P. 5365 of 1998, Cri. M.C. Nos. 5412 of 1998 and I agree with the same. Appendix B Item A.11.02.08.01 prescribes the standard for Dried Ice Cream Mix. Since the sample in this case is a proprietary food, for which no standard is prescribed under the Act and Rules, the complaint filed by the first respondent alleging that the petitioner has committed an offence punishable under Sections 2(ia) (m) and 7(i) of the Act read with Rule 5, Appendix BA. 11.02.08.01 of the Rules is not maintainable and liable to be quashed.

(3.) The learned Government Pleader appearing for the contesting respondents has argued that the article sold by the petitioner is really Dried Ice Cream Mix and it is a clear case of misbranding. It is argued that eventhough the petitioner claims that the article sold by him is not Dried Ice Cream Mix, he is selling the same to an ordinary common man as Dried Ice Cream Mix. It is also submitted that after the amendment to Rule 37A(2), which was incorporated with effect from 29.4.1989, a person manufacturing or selling a proprietary food should comply with the conditions imposed under sub-rule(2) of Rule 37A. It is also submitted that even in Ice Cream Mix Powder use of permitted synthetic food colours is restricted and Rule 29 permits use of synthetic food colours in certain food articles alone and if the article of food sold by the petitioner is a proprietary food, not falling in any of the articles of food mentioned therein, he is not entitled to add any synthetic food colour. It is also argued that even in cases in which he Rule 29 permits adding of synthetic food colour the same should be within limits prescribed under Rule 30 of the Rules. It is argued that even if the sample taken is a proprietary food, that is a matter to be proved by accused by adducing evidence and hence the complaint cannot be quashed.