Kerala High Court
K.P.Tensing vs D.Jayachandran on 21 October, 2010
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1383 of 2010()
1. K.P.TENSING,
... Petitioner
2. M/S.KIMS HOSPITAL,
Vs
1. D.JAYACHANDRAN, FOOD INSPECTOR,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.T.A.SHAJI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/10/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.1383 OF 2010
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Dated 21st October, 2010
O R D E R
Whether a Food Inspector is authorised to seize wheat powder, kept for the purpose of preparation of food in a hospital canteen and thereafter sent the sample to the laboratory and prosecute the hospital authorities for an offence under Prevention of Food Adulteration Act is the question to be settled.
2. Facts are not disputed. On 21/1/2008 at about 12.30 p.m Food Inspector, Corporation of Thiruvananthapuram inspected the canteen run by KIMS Hospital, Thiruvananthapuram and demanded to hand over the wheat powder (Atta) which was kept there for preparation of food for the purpose of sending it to the Public Analyst. He paid the value and obtained the wheat power He prepared three samples and sent one sample Crmc 1383/10 2 for public analysis to the public laboratory. The remaining two samples were forwarded to the Local Health Authority. On getting Annexure-B report of Public Analyst, first respondent lodged Annexure-A complaint before the Additional Chief Judicial Magistrate, Thiruvananthapuram alleging that petitioners committed the offence under Sections 16(1)(a)
(i) read with Section 7(i),(ii, 2(i-a) and
(f) of Prevention of Food Adulteration Act (hereinafter referred to as "the Act"). Learned Additional Chief Judicial Magistrate took cognizance of the offence as C.C.132/2008. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken, contending that on receipt of Annexure-B certificate at the instance of the petitioners the second sample was sent to the Crmc 1383/10 3 Central Food Laboratory and Annexure-C report obtained establishes that there was no adulteration as found in Annexure-B and therefore, continuation of the proceedings is only an abuse of process of the Court. It is also contended that in any case, when the wheat powder, which was taken by the Food Inspector, was not kept at the canteen for sale, Food Inspector has no authority to take sample from the wheat powder or sent it for analysis or lodge a complaint based on the report so received.
3. Learned counsel appearing for the petitioners and learned Senior counsel appearing for first respondent were heard.
4. In Annexure-A complaint it is the specific case of the Food Inspector that wheat powder from which sample was taken was not Crmc 1383/10 4 kept at the canteen for the purpose of sale, instead it is the definite case that it was kept there for the purpose of preparing food in the canteen. Question is in such circumstances, whether the Food Inspector is authorised to search or takes sample of the article of food, which was not kept or stored for sale. Question has been settled by the Apex Court in Municipal Corporation of Delhi v. Laxmi Narain Tandon (AIR 1976 SC 621) as follows.
"From a conjoint reading of the above referred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale or import, manufacture, storage or distribution for sale of any adulterated article of food. The terms "store" and "distribute"
take their colour from the context and the collocation of Crmc 1383/10 5 words in which they occure in Sections 7 and 16. "Storage" or "distribution" of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this section. That this is the right construction of the terms "store" and "distribute" in Section 16(1) will be further clear from a reference to Section 10. Under that section, the Food Inspector, whom the Act assigns a pivotal position for the enforcement of its provisions, is authorised to take samples of an article of food only from particular persons indulging in a specified course of business activity. The immediate or ultimate end of such activity is the sale of an article of food. The section does not give a blanket power to the Food Inspector to take samples of Crmc 1383/10 6 an article of food from a person who is not covered by any of the sub-clauses of sub section (1)(a) or sub section (2). The three sub clauses of sub section (1)(a) apply only to a person who answers the description of a seller or conveyer, deliverer, actual or potential, of an article of food to a purchaser or consignee or his consignee after delivery of such an article to him. Sub Section (2) further makes it clear that sample can be taken only of that article of food which is "manufactured".
"Stored" or exposed for sale. It follows that if an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is Crmc 1383/10 7 referred in sub sections (1)(a) and (2) of the section, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated, to validly launch prosecution thereon. In short, the expression "store" in Section 7 means "storing for sale", and consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence under Section 16(1)(a)."
5. In view of the decision of the Apex Court, it can only be found that Food Inspector is not competent to take sample of wheat powder, which was kept at the hospital canteen for the purpose of preparation of food and not kept or stored for sale. In such circumstances, based on the report of Crmc 1383/10 8 examination of such sample, first respondent is not competent to lodge a complaint for an offence under the Act, as has been done by Annexure-A complaint.
Petition is allowed. Cognizance taken on Annexure-A complaint in C.C.132/2008 on the file of Additional Chief Judicial Magistrate's Court, Thiruvananthapuram is quashed.
M.SASIDHARAN NAMBIAR, JUDGE.
uj.