B GOVINDA RAO Vs. V N ASHOKAN

JUDGEMENT

(1.) The first petitioner is the Managing Partner of M/S.B.G.R.Enterprises, a partnership firm registered under the Indian Partnership Act. The firm is carrying on the business of catering food and beverages to different establishments. The firm is conducting a restaurant in M/S Bharath Hotel(BTH), durbar hall road, Ernakulam, Kochi, on contract basis . On 19-5-2000 the Food Inspector, Kochi inspected the restaurant of the petitioners and at that time the second petitioner was present in the restaurant. According to the petitioners ,Food Inspector inspected the restaurant and kitchen and thereafter entered the store of the petitioners and took away some quantity of green gram and canned cherries. A debit note was prepared for the articles and a receipt was issued for the cash received from the Food Inspector. The cherries were in sealed cans and the Food Inspector took away three such cans.

(2.) The food articles taken by the Food Inspector were sent for analysis to the Public Analyst. The green gram was found to be of prescribed standard while the canned cherry was found to contain non-permitted synthetic colour.On the basis of the report of analysis, Food Inspector served notices on the petitioners intimating them that he has launched procecution against them under the Prevention of Food Adulteration Act. The case was taken on file by the Chief JudicialMagistrate as C.C.1196 of 2000. This petition is filed for quashing the proceedings in the above case.

(3.) The case against the petitioners is that the cherries in sugar syrup kept in tins were kept by the petitioners for sale. According to the petitioners , they are neither dealers nor manufacturers of any canned products and they are conducting restaurant where only cooked food is sold by them . one of the grounds raised by the petitioners for quashing the proceedings is that the canned cherry was kept by the petitioners not for sale. It is stated that cherry was not exhibited for sale and tins containing cherry was taken from the store room. The submission made on the basis of the above fact is that in so far as the canned cherry was not intented for sale, launching of prosecution under the provisions of Prevention of Food Adulteration Act is not permissible. Another contention taken up by the petitioner is that the petitioners are not persons who are in charge of or responsible for the conduct of the business of the firm. The firm of the petitioner has nominated one P.M. Manosh to be in charge of and responsible to the firm for the conduct of the business and hence, the prosecution of the petitioner alleging commission of the offence punishable underthe provisions of the Prevention of Food Adulteration Act is not possible. Another point urged by the petitioners is that there is warranty under Section 14 of the Prevention of Food Adulteration Act in their favour on the basis of Annexure-VIII invoice issued by Agencies from where the petitioners purchased red cherry.