RAJENDRAN Vs. FOOD INSPECTOR

JUDGEMENT

(1.) Petitioners are accused numbers 5 and 6 in a pending case on the file of Judicial First Class Magistrate Court - I, Kannur. First petitioner/5th accused is the Manager and nominee of the second petitioner/6th accused, a firm which is alleged to have imported Soya Milk Malt, the food item involved in the case. They are prosecuted with the vendor and some other accused for offences punishable under Sections 16(1)(a)(i) r/w Ss. 7(ii) and S. 2(ix)(k) of the Prevention of Food Adulteration Act, 1954, for short, 'PFA Act', and R. 42(zzz)(16) or 42(zzz)(17) of Prevention of Food Adulteration Rules, 1955, for short, 'PFA Rules', on a complaint filed by the first respondent/Food Inspector, Kannur Municipality, hereinafter referred to as the complainant. On 28.12.2010 at about 2 p.m. the complainant/Food Inspector visited M/s. Metro Hyper Market, Metro Hyper Point (P) Ltd., Fort Road, Kannur and purchased a sample of 3 litre of Soya Milk Malt (1 litre x 3 sealed packets) from 1 litre x 7 tetra packets of Soya Milk Malt kept for sale, for the purpose of taking sample as per the provisions of the PFA Act. Sample was taken in the manner provided by the PFA Act and one of the samples was sent over to the public analyst, who after analysis sent Annexure B report furnishing the opinion that the sample was not labelled with vegetarian/non-vegitarian symbol in accordance with R. 42(zzz)(16) or 42(zzz)(17) of PFA Rules and, therefore, it was misbranded as per S. 2(ix)(k) of the P.F.A. Act. Thereupon, after collecting particulars of the nominee of the firm, the distributor and importer of the food item concerned, complaint was filed against the vendor and all of them, altogether six persons, for the offences statedunder the P.F.A. Act and P.F.A. Rules. Cognizance of the offences taken by the magistrate and process issued, the accused persons appeared and applied for sending over the second sample to the Central Food Laboratory. After analysis over the sample forwarded, Director of that Laboratory issued Annexure C certificate opining that the protein and fat contents in the sample did not tally with the label declaration and, as such, there was misbranding and contravention of R. 42(zzz)(17) of the P.F.A. Rules.

(2.) Petitioners 5 and 6, after receipt of Annexure C certificate from the Director of the Central Food Laboratory, as stated above, have filed the above petition to quash the criminal proceedings against them invoking S. 482 of the Code of Criminal Procedure, for short, 'the Code', contending it is an abuse of process of the court.

(3.) I heard the learned counsel for petitioners and also learned Public Prosecutor. Learned counsel for petitioners raised three fold challenges to assail the prosecution as unsustainable under law and fact. First of all, it is contended that since the offences imputed in the complaint under the P.F.A. Act and P.F.A. Rules were based on misbranding invoking of S. 13(2) of the P.F.A. Act and sending over the second sample to the Central Food Laboratory at the instance of one or other accused was an irregular exercise since the prosecution is not founded on a case that the food item was adulterated. So, whatever finding entered in Annexure C certificate issued by the Central Food Laboratory that the protein and fat contents in the food item did not tally with the label declaration and, as such, there was misbranding, but, different from the finding furnished by the public analyst in Annexure B report, who had only stated that the sample was not labelled with vegetarian/non-vegetarian symbol, cannot be a basis for continuation of the prosecution proceedings on the complaint filed by the Food Inspector based on Annexure B report of the analyst, according to the counsel. No quantitative analysts over the sample was done, and in view of the decision rendered in "Pepsico India Holdings (P) Ltd. v. Food Inspector", 2010 4 KerLT 706 , Annexure C certificate cannot be acted upon, is the further submission of the counsel. Reliance is also placed on the decision rendered in M/s. Prakash Food v. State of Andhra Pradesh, 2008 2 KerLT 180 and Selvakumar v. State,2011 KHC 387 to contend that the sole allegation raised, based on the finding made by the public analyst in Annexure B report, to prosecute the accused persons that the sample was not labelled with vegetarian/non-vegetarian symbol in accordance with R. 42(zzz)(16) or 42(zzz)(17) of PFA Rules will not constitute an offence of misbranding. I do not find any merit in the challenges raised by the counsel for assailing the prosecution of the case emanating from the complaint of the Food Inspector. Challenge canvassed that in a case founded on a report of the public analyst showing the offence of 'misbranding' the accused invoking the statutory right conferred under S. 13(2) of the PFA Act for analysis of the second sample at the Central Food Laboratory does not arise, and even if it was so done and a finding is collected that is non est, is bereft of any merit. Prosecution is launched on the report of a public analyst after analysis over the sample of a food item collected by the Food Inspector. Finding entered that such food item is 'adulterated' or 'misbranded' that does not in any way affect the statutory right of the accused persons proceeded against to seek analysis of the second sample sending it over to the Central Food Laboratory. There may be very many cases where food item is branded differently like 'groundnut oil' shown as 'corn oil' and the like. Analysis report may show that the food item is only misbranded, and not adulterated. So much so, it is futile to contend that in a prosecution founded over misbranding based on the analysis report of the public analyst the accused cannot invoke analysis of the second sample through the Central Food Laboratory and the report thereof collected has no value. It is not the discrepancy or difference over the label declaration detected with reference to misbranding that may be germane for consideration, but, other aspects too relating to the sample of food item analysed by the public analyst and his report giving rise to the prosecution. Even in a case where the offence of misbranding alone is disclosed on analysis of the sample food item by the public analyst and that has led to the prosecution of the offender thereof, he is still having the statutory right to invoke S. 13(2) of the PFA Act for analysis of the second sample sending it over to the Central Food Laboratory. Where a certificate has been collected thereby in the post cognizance stage of the case, report of the analyst is substituted with such certificate issued by the Central Food Laboratory. That certificate supersede the report of the public analyst. That certificate alone can be considered so far as the facts stated therein regarding the sample concerned. When that be so, Annexure C certificate of the Director, Central Food Laboratory that protein and fat content in the sample food item did not tally with the label declaration and, as such, there is contravention of R. 42(zzz)(17) of PFA Rules, that alone, will form the basis of the prosecution against the accused persons. In the report of the analyst a different aspect over labelling, that is, sample was not labelled with vegetarian/non-vegetarian symbol, that alone, was the finding made alleging contravention of the PFA Rules and that formed the allegation in the complaint to impute offence of misbranding, cannot have any significance or merit where the certificate of the Director of Central Food Laboratory superseded the report of the analyst. The facts stated in that certificate regarding the sample concerned, that alone, will be the basis of the prosecution, and it is no way impaired by any opinion of a different nature given in the report of the analyst which had been superseded. The decisions relied by the counsel rendered in M/s. Prakash Food's case and Selvakumar's case, referred to above, have no application to the question posed for consideration in the present case and, as such, do not require any dilation. Similarly, the challenge projected on the basis of Pepsico's case as if that decision rendered by the apex court hamper the prosecution of the offenders of the PFA Act and Rules on analysis report of sample of food item by a public analyst where the method of test used is DGHS method, has no merit since no such proposition has been laid down. The Apex Court in that case considering some challenges raised with respect to the analysis report over the food item involved - sweetened carbonated water - in respect of which tolerance limit of pesticide at the time of prosecution was not fixed, had only observed that the views taken by the High Court on the challenges mooted by the accused with reference to the report of the analyst were not correct. The aforesaid challenge canvassed based on the decision in Pepsico's case has no merit. In Tito Varghese v. Food Inspector, 2012 4 KerLT 796 have considered and repelled similar challenge raised, and what has been stated there apply to the present case also. There is no merit in the challenges canvassed by the petitioners/accused to assail their prosecution for offences under the PFA Act and Rules. Whatever defences available to the petitioners under law can be canvassed by them before the magistrate in trial.