Kerala High Court
Tito Varghese vs Nil on 22 November, 2012
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 22ND DAY OF NOVEMBER 2012/1ST AGRAHAYANA 1934
Crl.MC.No. 1148 of 2008 ( )
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CC.158/2008 of JUDL.M.F.C.-I,ERNAKULAM
PETITIONER(S)/FIRST ACCUSED:
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TITO VARGHESE,
SON OF T.D.VARGHESE, THRIKKUKARAN HOUSE
POTTAKUZHY LANE, NORTH KALOOR, KOCHI.
BY ADVS.SRI.M.K.DAMODARAN (SR.)
SRI.A.KUMAR
COMPLAINANT(S):
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1. FOOD INSPECTOR, CORPORATION OF KOCHI,
ERNAKULAM.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
R1 BY ADV. SRI.M.K.CHANDRAMOHAN DAS, SC
R2 BY PUBLIC PROSECUTOR SMT. R.REMA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 19.10.2012, THE COURT ON 22-11-2012 DELIVERED THE
FOLLOWING:
CRL. M.C.No. 1148 of 2008
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APPENDIX
PETITIONER(S) EXHIBITS
ANNEXURE A- TRUE COPY OF THE COMPLAINT FILED BY
RESPONDENT.
ANNEXURE B- TRUE COPY OF THE REPORT OF THE PUBLIC
ANALYST DTD 31.7.2007
ANNEXURE C- TRUE COPY OF THE INTIMATION FORWARDING
THE REPORT.
RESPONDENTS' EXHIBITS : NIL
//TRUE COPY//
P.A. TO JUDGE
ss/
"C.R."
S.S.SATHEESACHANDRAN,J.
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Crl.M.C. NO. 1148 of 2008
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Dated this the 22nd day of November, 2012
ORDER
Petitioner is the first accused in a complaint filed by the Food Inspector, Corporation of Kochi, for offences punishable under Sections 2 (ia)(b), 7 (i) (v) read with Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, for short the 'Act', read with item number A-18-06-11 of Appendix B of the Prevention of Food Adulteration Act Rules, for short the 'Rules'. Cognizance taken of the offences the case awaits further steps for trial before the Judicial First Class Magistrate-I, Ernakulam. Petitioner has filed the above petition to quash the criminal proceedings against him invoking the inherent powers of this court under Section 482 of the Code of Criminal Procedure {for short 'the Code'}, contending that the proceedings are an abuse of process of the court.
Crl.M.C. NO. 1148 of 2008 2
2. The gist of the accusation against the accused can be summed up thus: The Food Inspector, hereinafter referred to as complainant, visited, on 03.07.2007, the business premises of M/s Trinetra Super Retail Limited (Fab Mall), Edapally, Cochin - 24, a private limited company engaged in retail outlet of provisions and other goods. Disclosing his identity and complying with the Rules complainant purchased three packets of 500gms of Urd Dal Whole exhibited for sale in that Fab Mall. Petitioner is the Manager, and second accused licensee of that Fab Mall. Petitioner was present when sale of the above food item was effected by the complainant. Sampling of that food item was carried out in the presence of petitioner and also witnesses in accordance with the Act and Rules and a mahazar was prepared at the spot evidencing the steps taken by the complainant over the purchase and sampling done. One among the samples taken and sealed, with Crl.M.C. NO. 1148 of 2008 3 specimen impression of the seal used for sampling in a separate cover, was sent over to the Public Analyst and the remaining food samples, with specimen impression of the seal, in separate covers were sent over to the Local (Health) Authority and District Food Inspector. Report received from the Public Analyst revealed that the sample was coated with talc, which is prohibited, and thus adulterated. Local authority forwarded Form III report to the complainant for launching prosecution. Complainant thereupon sent separate pre-registered letters to the first and second accused seeking license and nomination details of M/s Trinetra Super Retail Limited (Fabmall). No reply was furnished to such letters. After ascertaining that no P.F.A. nomination has been made by the above Private Limited Company, and also collecting the details of the P.F.A. Licensee and Directors of the Company, the above complaint Crl.M.C. NO. 1148 of 2008 4 was filed. The first accused is the Store Manager, second accused the licensee and 3rd to 7th accused are the Directors of M/s Trinetra Super Retail Limited (Fabmall), and all of them are responsible for day today affairs of the business and, thus, culpable for the offences imputed under the Act and Rules, is the case of the complainant.
3. Learned Senior Counsel, Sri. M.K.Damodaran, who appeared for the petitioner, assailed the prosecution proceedings arising from Annexure A complaint on the following challenges. It is contended by the learned senior counsel that there was inordinate delay in carrying out the analysis over the sample and launching the prosecution against the accused persons by filing the complaint before the magistrate. The food item - Urd Dal Whole over which prosecution is launched was kept packed. Details of packing as revealed from the noting made in Mahazar showed that it was Crl.M.C. NO. 1148 of 2008 5 packed on 22.06.2007 with a further declaration that its 'best before date' is 21.08.2007. For all statutory purpose and for use, according to the counsel, the 'best before date' is applicable. Though sample was collected on 31.07.2007 complaint was filed after lapse of six months and that is long after the expiry of the best before period noted in the packet. When that be the case, the inordinate delay in filing the complaint and prosecution steps taken has seriously affected the right of the accused persons under Section 13(2) of the Act to send over the second sample for analysis to the Central Food Laboratory. Delay caused in filing the complaint has prejudicially affected the statutory right conferred on the petitioner for having a second analysis since after such long delay even if any step is taken under Section 13(2) of the Act that would not have served any purpose, is the submission. Learned Senior Counsel has relied on Crl.M.C. NO. 1148 of 2008 6 two decisions of this court, both rendered by learned single Judges, the first one in Narayana Swami and another Vs. The Food Inspector and another [2007 (2) KLT Suppl.158] and the latter in 'Rama Moorthy Vs. Food Inspector' [2012(2) KLT 214] to contend that where the accused has been deprived of the valuable statutory right to challenge the analysis report on account of delay in filing the complaint, taking of prosecution proceedings and its continuation against him would be a futile exercise, and, therefore, it is liable to be quashed invoking the inherent powers of this court. The next line of attack projected to impeach the prosecution is based on the decision rendered by the Apex Court in 'Pepsico India Holdings Private Limited Vs. Food Inspector and Another' [2011 (1) SCC 176] for short 'Pepsico's case'. The report of the Public Analyst who had used DGHS method for analysis of the food sample could not be Crl.M.C. NO. 1148 of 2008 7 relied upon, is the submission of the counsel. That challenge based on the aforesaid decision is built upon two premises - (1) there is no prescribed and validated method of analysis under Section 23 (1A) (ee) and (hh) of the Act and the DGHS method is not a prescribed method for analysis at the point of time when the sample was analyzed and (2) the Regional Analytical Laboratory, Ernakulam, where the sample is analyzed is not a laboratory notified appropriately as a laboratory specified for conducting the test over the food sample. During the course of submission made I have expressed my reservations over the applicability of the aforesaid decision rendered by the Apex Court to the present case. After the petition was heard, it is noticed, setting forth the challenge canvassed as above as an additional ground a petition has been filed to permit the petitioner to raise such grounds also to assail the prosecution. Another line of Crl.M.C. NO. 1148 of 2008 8 attack canvassed by the counsel is that in Annexure A2 analysis report the Public Analyst has formed the opinion that the sample is adulterated following a different prescribed standard for the item of food, Urd Dal Whole. Whereas for Urd Dal Whole the prescribed standard to be applied is covered under A-18.06.06 of Appendix B what has been taken as the prescribed standard by the analyst, as seen from Annexure A2 report, to hold that the food item is adulterated is under A 18.06.11 of Appendix B, and that renders the report of the Public Analyst unacceptable, is the submission of the counsel. That report cannot be the basis to prosecute the accused persons when the very analysis is based on a different prescribed standard not applicable to the food item involved, is the submission of the counsel. With the above challenges it is also contended that Annexure A2 report does not contain any finding that the food Crl.M.C. NO. 1148 of 2008 9 item is injurious to health, which, according to the counsel, should form the foundation to initiate prosecution for an offence under the Act and Rules.
4. I do not find any merit in the challenge raised that delay in filing complaint with reference to the 'best before date' printed in the packet of food item has a decisive impact in testing the validity of the prosecution proceedings commenced for violation of the Act and Rules, based on an analysis report of the sample food item revealing that it was adulterated. Food item exhibited for sale in a Fabmall was purchased and sample collected thereof by the complainant on 03.07.2007. That food packet contained a 'best before date' as 21.08.2007 does not come to the assistance of the accused for the reason that the complaint after getting analysis report of the sample collected and compliance of other formalities to launch prosecution, was commenced six months later. Crl.M.C. NO. 1148 of 2008 10 Whether the packet was exhibited for sale before or after the date showing best before use in the packet, the fulcrum on which the prosecution rests to proceed for offences under the Act and Rules is the adulteration of the food item in that packet. No doubt, analysis report is the basis for the complaint. But, where the accused persons to be proceeded against include a company as in the present case requiring collection of further details as to who is its P.F.A. Licensee, nomination if any made by the company, and also names and particulars of its directors, which can be done only after issuing registered notices to the authorities and even to the company to be proceeded against, and getting replies thereof, naturally, there would be some delay in commencing the prosecution proceedings even where the analysis report over the sample disclosed that it was adulterated. How far the right of the accused person to send over the Crl.M.C. NO. 1148 of 2008 11 second sample for analysis resorting to his statutory right conferred under Section 13(2) of the Act has been prejudiced or in what way it has been injuriously affected, is a matter that has to be examined, if so raised, in trial on the evidence let in the case. Without taking steps under Section 13(2) of the Act and no finding entered on such analysis that the delay in sending the second sample for analysis has materially affected the finding to be entered over such sample, normally, no accused person proceeded under the Act and Rules can contend that delay in filing the complaint after the food item was taken has vitiated the prosecution against him. If at all there was delay in filing the complaint after getting the analysis report whether the accused has taken steps under Section 13(2) of the Act for a second analysis may be one among the grounds which the court has to consider with other Crl.M.C. NO. 1148 of 2008 12 materials placed in the case to test the validity and merit of the prosecution. At any rate, delay in filing the complaint after getting analysis report canvassed as a ground to impeach the prosecution on the premise that it has affected the statutory right of the accused under Section 13(2) of the Act has no merit or basis at all. Decisions relied by the learned Senior Counsel rendered in Narayana Swami's case and Rama Moorthy's case, referred to above, no doubt strike a different note. The decisions rendered by the Apex Court on the above question evidently have not been brought to the notice of the court while considering the cases under the above referred decisions, and that has resulted in expressing a view that delay in filing the complaint after getting analysis report would cause prejudice to the accused since that would deprive him of his statutory right under Section 13(2) of the Act. The apex court in 'Babulal Crl.M.C. NO. 1148 of 2008 13 Hargovindas V. State of Gujarat' [AIR 1971 SC 1277] has held that unless an application to send the sample for analysis exercising right under Section 13(2) of the Act has been made the vendor cannot complain that he was deprived of his right to have the sample analysed. That view has been reaffirmed by three judges bench of the apex court in 'Ajit Prasad Ramkishan Singh V. The State of Maharashtra' [AIR 1972 SC 1631]. Challenge raised in that case that the accused was deprived of his right to have the sample analysed on account of the delay in service of summons was repelled holding that the accused who never applied under Section 13(2) of Act cannot complain that he has been deprived of any right. So much so, the challenge made by the counsel with reference to the 'Best before date' printed in the food packet to contend of the deprivation of statutory right of accused under Section 13(2) of the Act, without taking any Crl.M.C. NO. 1148 of 2008 14 steps to exercise such right, to assail the merit of prosecution, that too at its inception, has no value or merit. If there is delay in filing the complaint after getting analysis report that by itself cannot be a basis to contend that there has been denial or deprivation of the statutory right under Section 13(2) of the Act to the accused person; but, such delay if that be so, may have relevance depending upon all other materials produced in the trial of the case. A challenge that there was six months delay in filing the complaint after the 'best before date' shown in the packet of food item, or even after getting the analysis report, can never be a ground to question the prosecution and the validity of the complaint invoking the inherent powers of this court under Section 482 of the Code.
5. Reliance is placed on 'Pepsico's case', by the learned Senior Counsel for the petitioner to impeach the prosecution based on Annexure A2 Crl.M.C. NO. 1148 of 2008 15 report of the Public Analyst contending that DGHS method used by the analyst cannot be acted upon as it is not a duly prescribed method for analysis at the point of time when the sample of food item was analyzed. A further challenge is also raised that the Regional Analytical Laboratory, Ernakulam, where the sample is analyzed is not a laboratory notified for the tests conducted. How far and to what extent, the decision in Pepsico's case has applicability to the case in hand requires to be considered.
6. In Pepsico's case, what were the questions that arose for consideration are succinctly stated by the Supreme Court in Paragraph (2) of the judgment. Whether there was any prescribed and valid method of analysis under Section 23 (1A) (ee) and (hh) of the Act, to ascertain the percentage of pesticides present in a carbonated beverage was one among the questions Crl.M.C. NO. 1148 of 2008 16 that arose for consideration, to determine the validity of the analysis report and how far the opinion of analyst that pesticide residue detected in the food item covered is injurious to health, and, therefore, adulterated within the meaning of Section 2(ia)(h) of the Act. On the submissions made by both sides in the case, what was the question required to be considered by the Apex Court has been stated in paragraph 37 of the decision, which reads thus:
"From the submissions made on behalf of the respective parties, it is apparent that the width of the dispute to be settled in these appeals is not very wide. We are only required to consider as to whether the presence of of 0.001 mg of carbofuran per litre found in the sweetened carbonated water, manufactured by the appellant Company, can be said to be adulterated as per Rule 65 of the 1955 Rules and under Section 1(i-a)(h) of the 1954 Act, particularly in the absence of any Crl.M.C. NO. 1148 of 2008 17 validated standard of analysis provided for under the 1954 Act or 1955 Rules."
(underlining supplied) The Apex Court noticed the finding of the public analyst that the sample of pepsi sweetened carbonated water was adulterated was based on analysis using the DGHS method, which found traces of 0.001 mg carbofuran per litre in the said sample. No tolerance limit for sweetened carbonated water under Rule 65 had been prescribed at the point of time when such analysis was made, but it was done only later, and the level of pesticide residue in the sample was within the tolerance limit subsequently prescribed was also taken note of. After forming such conclusion, in paragraphs 40 to 45 of the judgment, the Apex Court considered the various grounds canvassed before the High Court, and the findings made thereof. Among the grounds of challenge canvassed before the High Court the Crl.M.C. NO. 1148 of 2008 18 absence of any prescribed and validated method of analysis for detection of pesticide residue in sweetened carbonated water was canvassed of, to contend that the analysis report which was based on DGHS method was unacceptable, and that too when the laboratories, where the test for detection of insecticides and pesticides in such article of food was not notified. High Court has repelled the challenges holding that if such challenges were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt. The Apex Court, as could be seen from the discussion made in the judgment, was considering only the challenge canvassed before and repelled by the High Court with reference to the absence of prescribed and validated method of analysis under Section 23 (1A) (ee) and (hh) of the Act in respect of sweetened carbonated water for detection of pesticides and insecticides in such food item. Crl.M.C. NO. 1148 of 2008 19 Challenge against the report of analyst, who had used DGHS Method to determine the pesticide residue and, that too, when no tolerance limit for pesticide in the food item involved was prescribed, with no laboratory for the test for detection of pesticides and insecticides in that article of food notified, was considered. Correctness of the finding made by the High Court on such grounds of attack, that alone, was considered by the Apex Court, and that too with respect to the analysis over a sample of food item coming under 'carbonated water', for which then no prescribed and validated method of analysis in determining presence of pesticides and insecticides residue nor of the tolerance limit was fixed. Observations made by the Apex Court in the decision over the use of the DGHS method and non-notification of the laboratory where the test for detection of insecticides and pesticides in that article of food Crl.M.C. NO. 1148 of 2008 20 item could be undertaken, has application only to the food item covered by that case - carbonated water-with respect to which at the time when the analysis was done over the sample by the public analyst no prescribed and validated method of analysis nor tolerance limit for presence of pesticide residue was fixed. Those observations cannot be stretched to an extent as if the Apex Court has rendered a decision that use of DGHS method for analysis over other food items and conducting of tests on those items in State laboratories are not sufficient to sustain the prosecution based on the analysis report from such laboratories. So much so, the challenge canvassed on the aforesaid decision by the learned Senior Counsel to seek for quashing the complaint against the petitioner has no basis at all.
7. Standard of quality of food item 'urd dhal whole' is covered by Appendix B A-18- Crl.M.C. NO. 1148 of 2008 21 06-06, and in analysis standard applicable for 'split pulse (dhal urd)' was followed is another challenge raised by the counsel to impeach the prosecution based on Annexure A2 analysis report. Standard prescribed for 'urd dhal whole' in Appendix B 18.06.06 and that of 'split pulse dhal urd' in Appendix B 18.06.11 are similar in all respects, other than the tolerance limit with reference to the total of foreign matter, which in the case of 'urd dhal whole' shall not exceed 9% by weight and that of 'split pulse dhal urd' not to exceed 8% by weight. In the present case, it is not on the basis of the standard prescribed under 18- 06-06 or 18.06.11 the food item is held to be adulterated, but, on the general prescription relating to food grains, which includes urd dhal whole, stated in Appendix B A-18-06. Standard prescribed in Appendix B in A.18.06.06 which is Crl.M.C. NO. 1148 of 2008 22 applicable to food grains in general, fixing for them standard quality, separately, mandates that in addition to the standards prescribed, the food grains shall be 'free from added colouring matter'. The food item in the present case contained a colouring matter 'talc', which is prohibited, is the finding made in the analysis Annexure A2 report to hold that the sample is adulterated as per Section 2(ia)(b) of the Act. Presence of 'talc' in the food item regardless of its colour would make the article adulterated (See Rajan v. Food Inspector {2011(4) KLT 184)}.
8. Learned Senior Counsel, referring to Annexure A2 report has contended before me that the absence of any finding in such report by the analyst that it is injurious to health other than stating that the food item is adulterated is not sufficient to act upon that report to prosecute Crl.M.C. NO. 1148 of 2008 23 the petitioner for the offence under the Act and the Rules. A food item shall be deemed to be adulterated for one or other factors covered by the definition of 'adulterated' under Section 2(ia) of the Act, which are specifically dealt with under clauses (a) to (m) of that definition clause. Where 'talc' allegedly detected in the sample of food item is a prohibited item nothing more need be stated in the analysis report other than that the food item is adulterated as falling under Section 2(ia)(b) of the Act to prosecute the persons who are shown to be culpable for the offences punishable under the Act and the Rules. There is no merit in any of the challenges mooted by the petitioner/1st accused to assail his prosecution arising from Annexure A1 complaint.
Petition is dismissed.
Sd/-
S.S.SATHEESACHANDRAN, JUDGE sk/-
/true copy//