P.P.ABDURAHIMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE first accused in S.T. Case No. 1062 of 2006 of Addl. Chief Judicial Magistrate, Thalassery has filed this petition to quash the proceedings initiated against him in the aforesaid case. The case against this petitioner and one Hamza was filed before that Court as S.T. Case No. 1136 of 2005 alleging commission of offences under Sections 16(1) a (i) r/w. S. 7(i) of Prevention of the Food Adulteration Act, 1954 ( "P.F.A. Act" for short) and item No. A.18.06.12 of Appendix-B of Prevention of Food Adulteration Rules, 1955, " P.F.A. Rules" for short). The petitioner was then absconding and so the case against him was split up. The other accused who faced the trial was acquitted by the learned Magistrate under Section 255 (1) Cr.P.C.

(2.) THE case of the prosecution is that the Food Inspector purchased 1 kgm. of bengalgram dhall from the petitioner herein. The 2nd accused was stated to be the licensee of that shop. In Form III report the Public Analyst certified that the sample did not conform to the standards prescribed for bengalgram dhall (dal chana) as per item No. A.18.06.12 of Appendix - B of P.F.A Rules. 2. It is argued by Sri.Peethambharan, the learned counsel for the petitioner that the 2nd accused who faced the trial was acquitted by the learned Magistrate accepting the contention advanced by the accused that the Food Inspector did not add any preservative and so for the same reason this petitioner is entitled to be acquitted and, if so, the proceedings initiated against this petitioner is to be quashed, for, according to the petitioner, no purpose would be served by asking the petitioner to face trial.

(3.) IT is also argued that the classification of preservatives dealt with in Rules 53 and 54 and also Class II preservatives mentioned in Rule 55 do not make it mandatory that any particular preservatives should be added. Sri. Peethambharan, the learned counsel for the petitioner has relied upon the decision of the Division Bench in Narayanan Nair v. Food Inspector - 2003 (2) KLT 419 to fortify his submission that though Rule 19 is only directory and not mandatory, it puts an obligation on the Food Inspector to add preservatives and if it is not added, it is for the Food Inspector to prove that non addition of preservatives has not affected the quality of sample at the time of analysis. The duty of the Food Inspector is only to maintain and preserve the samples in good and suitable condition till analysis. It is permissible for the Food Inspector to add preservative so as to prevent deterioration of the food article. The learned counsel for the petitioner submits that the percentage of weevilled grains prescribed as per the standard is not more than three percent by count but in Form III report it was noted that the percentage was 4.30 by count. It was also noted that as per the standard uric acid should not be more than 100 milligram per kilogram . As per Form III report it was noticed that 240 milligram of Uric Acid was detected per kilogram. Therefore, because of those two variations, it was certified that the sample did not conform to the standard prescribed. According to the petitioner, there is no case for the Food Inspector that he had added any preservatives at the time of sampling to keep the food article in its original position. But it is pertinent to note that there is nothing in evidence including Form III report to suggest that the sample was unfit for analysis. It is also important to note that the petitioner did not file any application under Section 13 (2) of the P.F.A. Act to forward part or parts of the sample kept by the Local (Health) Authority to the Central Food Laboratory. Non- addition of preservatives could have been a ground had it been a case where the petitioner had requested the second sample to be sent to the Central Food Laboratory and at that point of time it was reported that 2nd sample was unfit for analysis, the prosecution contends. Therefore, the contention that the proceedings as against this petitioner should be quashed because the 2nd accused was acquitted, is unsustainable.