JOHNSON Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether a food product which is not marketed or represented as a complement to mother's milk would be an infant food as defined under the Prevention of Food Adulteration Rules 1955 for the reason that its carton depicts picture of an infant. Whether prosecution for an offence under the Prevention of Food Adulteration Act is legal, if the sample of the article of food purchased by the Food Inspector, is not examined by the Public Analyst and no report is obtained. These are the questions to be settled in this petition.

(2.) Petitioner, the manufacturer of "Banatone" marketed "as natural banana powder", is the fourth accused in C.C.163/2008 on the file of Judicial First Class Magistrate, III, Thiruvananthapuram. Second respondent, the complainant, Food Inspector, Thiruvananthapuram purchased 6 packets of Banatone banana powder each weighing 100gms. after paying the price from Variety Traders Thiruvananthapuram and prepared three samples as provided under the Ruels for the purpose of sending it to the Public Analyst. One sample was sent to the Public Analyst and two samples were forwarded to the Local Health Authority. First accused is the employee and second accused the proprietor of Variety Traders and third accused the distributor through whom petitioner marketed the food article. Annexure A4 complaint was lodged before the Magistrate alleging that "Banatone" marketed as a natural banana powder is an infant food and in violation of Rule 38 the label contained inscription ISO 9001-2000 certified company and violated violation of Rule 37B(2), which prohibits showing picture of any infant or woman on the infant food and Rule 37A by manufacture and sale of infant food, without obtaining sanction of the Central Government and thereby committed offence punishable under section 16(1)(a)(i) (ii), 7(ii) (v), 2(ix)(g) (k), Rule 37A and 37B(2) of Prevention of Food Adulteration Act and Rules. This petition is filed under section 482 of Code of Criminal Procedure, to quash Annexure A4 complaint contending that there is no violation of any of the Rules as alleged and the product Banatone is not an infant food at all and therefore for that sole reason the prosecution is liable to be quashed. It is also contended that after taking sample, for sending to the Public Analyst, prosecution without getting a report from the Public Analyst is bad in law and is unsustainable. It is also contended that as seen from Annexure A5 communication from the District Food Inspector, the sample taken by the second respondent was sent to the Public Analyst but was rejected due to the wrong sampling and without getting the sample examined by the Public Analyst, the prosecution is lodged and for that sole reason alone the prosecution is not maintainable. It is also contended that sample of Banatone was taken earlier and sent for Public Analyst and evidenced by Annexure A6 report it was found that there was no adulteration and Annexure A6 report proves that there is no misbranding and in such circumstance prosecution is only an abuse of process of the court.

(3.) Learned counsel appearing for the petitioner and learned Public Prosecutor were heard.