SURESH Vs. FOOD INSPECTOR

JUDGEMENT

(1.) Petitioners are the accused in a pending case on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram. They are being prosecuted for offences punishable under S. 2(i-a)(f) and 7(i) read with S. 16(1)(1-A) of the Prevention of Food Adulteration Act, 1954, for short the PFA Act on a complaint filed by the Food Inspector Corporation of Trivandrum, hereinafter referred to as the complainant. Annexure A1 is a copy of the complaint. Complainant inspected a super market byname 'Padmanabha Fair Trade Super' market, Vallakadavu on 30.3.2007, and, after disclosing his identity he purchased six packets of meat masala from that super market. Seventh accused a partner of the firm was present at the time of inspection and purchase. Complainant complied with the formalities over the issue of notice, payment of price, sampling of the food item etc., and prepared a mahazar in accordance with the Rules. One part of the sample with Form 7 memorandum and specimen was sent over to the Public Analyst and the other two parts of sample with the accompaniments required were given to the Local Health Authority, Thiruvananthapuram. Report on analysis over the sample sent over, received from the Analyst revealed that the food item was adulterated. Sample contained dead and living insect fragments and larva and was unfit for human consumption. After giving notice and collecting the particulars of manufacturer, nominees etc., complaint was laid to prosecute all of them, petitioners herein, for offences punishable under S. 2(i-a) and (f) and S. 7(i) read with S. 16(1)(1-A) and R. 37A(2)(b) of PFA Rules. Second accused is a manufacturing company and first accused nominee of that Company. Fourth accused is a marketing company and third accused nominee of that company. Fifth accused is the distributor of the food product. Eighth accused is the Firm, Padmanabha Fair Trade Super market, from where the food item was purchased by the complainant, and seventh accused, partner of that firm, and sixth accused its PFA licensee and another partner of the firm. Receiving notice on the complaint the accused persons applied under S. 13(2) of the Act to have analysis of the second sample by the Central Food Laboratory. That laboratory, after analysis of the sample sent over, issued Annexure C. certificate. Copy of the report of Public Analyst is Annexure B, and Annexure C copy of certificate issued by the Central Food Laboratory. Annexure C certificate superseding Annexure B report of the Analyst disclosed that sample was not adulterated. In Annexure C opinion was furnished that label declaration on the packet over HACCP certificate contravened R.38 of PFA Rules, the above finding made in Annexure C report is without jurisdiction, and continuance of prosecution proceedings on the complaint filed alleging that the food item was adulterated, which has been found against in Annexure C report, is unsustainable, is the case of petitioners, for filing the above petition invoking the inherent powers of this court under S. 482 of the Code of Criminal Procedure, for short the Code, to quash the criminal proceedings against them arising from Annexure A complaint.

(2.) I heard learned counsel for petitioners and also learned Government Pleader.

(3.) Learned counsel for petitioners contended that continuation of the prosecution proceedings on a new case, on the basis of Annexure C report, constituting a distinct and different offence not based on Annexure B report, which was the basis of the complaint, on the supersession of Annexure B report, is contrary to law and it is an abuse of process of law. Where Annexure B report stands superseded whatever be the violation of rules noted in Annexure C report, without fresh sanction for prosecution, according to counsel, under the previous complaint of the complainant prosecution of the accused cannot be continued. Learned counsel relied on Food Inspector v. Sreenivasa Shenoy, 2000 3 KerLT 1 contending that the new offence with respect to violation of R.38 of the PFA Rules is not based on the factual allegations included in the complaint for prosecuting the petitioners, and as such on the complaint previously filed in which different offence under the Act and Rules were imputed the prosecution cannot be continued. Learned counsel also contended that the declaration made on the label HACCP certified is only that the hazard analysis control point has been duly certified, and there was no violation of R.38 of the PFA Rules. So much so, prosecution of the petitioners on the basis of the remarks or finding made in Annexure C certificate that such labeling in the packet violated R.38 of the PFA Rules cannot be given any significance and on that account also prosecution of the petitioners is bad, according to the counsel. Lastly learned counsel for petitioners adverting to S. 95 of the Indian Penal Code contended that mere labeling in the packet 'HACCP certified' can be viewed of no consequence as such labeling would not cause any harm, and if at all any harm it is so slight that no person would complain of such harm. That also taken into account, according to counsel, prosecution proceedings against the petitioners call for quashing it invoking the inherent powers of this Court.