M. Basheer vs State Of Kerala And Ors

The petitioner is the fourth accused in the case S.T.No.2110/2009 pending in the Court of the Judicial First Class Magistrate, Nilambur.

The petitioner is prosecuted in the aforesaid case by the Food Inspector, Manjeri Circle for committing the offences punishable under Sections 2(ia)(m) and 7(i) read with 16(ia)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act').

On 05.03.2009, samples of tomato sauce were collected by the Food Inspector from the Margin Free Market at the place Edakkara. The first accused was the salesman of the shop who sold the food item. The second accused was the licensee and the third accused was the owner of the above shop. The petitioner, who is the fourth accused, is the nominee of the company who manufactured the tomato sauce.

The sample was forwarded to the Public Analyst, Regional Analytical Laboratory, Kozhikode. Annexure-A1 is the copy of the report of the Public Analyst. It shows that the sample did not conform to the standards prescribed for tomato sauce under the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules') and therefore it was adulterated.

On the basis of Annexure-A1 report of the Public Analyst, Annexure-A2 complaint against the four accused was filed by the Food Inspector and cognizance of the offences was taken by the learned Magistrate.

This petition is filed under Section 482 Cr.P.C by the fourth accused for quashing Annexure-A2 complaint and all further proceedings in the case.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

Learned counsel for the petitioner contended that, the complaint filed by the Food Inspector, which is based on Annexure-A1 report of the Public Analyst, is not maintainable in the light of the decision of the Supreme Court in Pepsico India Holdings Private Limited v. Food Inspector : (2011) 1 SCC

Section 23(1A)(ee) of the Act provides that, the rules may provide for defining the laboratories where samples of articles of food or adulterants may be analysed by the public analysts under the Act. Section 23(1A)(hh) of the Act provides that, the rules may provide for defining the methods of analysis.

In Pepsico India Holdings (supra), the first point raised for consideration by the Apex Court was, whether in the absence of any prescribed and validated method of analysis under Section 23(1A)(hh) of the Act, could a prosecution have been launched against the accused based on a report submitted by the public analyst using the method of the Directorate General of Health Services (DGHS).

The Apex Court considered the aforesaid question in detail and held that the provisions under Sections 23(1A)(ee) and(hh) of the Act are mandatory and not directory. The Apex Court also held that, since the laboratories were not defined for the analysis by public analysts and the methods of analysis were also not defined, prosecution based on the analysis conducted in such laboratories is not maintainable.

In Rasheed v. Food Inspector: 2016 (2) KHC 679, a Division Bench of this Court considered the question whether all the prosecutions under the Act could be stifled by raising a contention that the laboratories or methods of analysis were not defined. The Division Bench answered the question as follows:

"Wherever an analysis has to be conducted from a laboratory to find whether the particular sample of item of the particular food article is adulterated, to form the basis for initiation of prosecution under the PFA Act the report of the analyst in relation to that sample must be one conducted in a laboratory defined under Section 23(1A)(ee). Since no such laboratory was defined till the repealing of the PFA Act wherever an analysis from a laboratory was inevitable for making a report regarding item concerned as adulterated there cannot be any successful prosecution in the absence of such a report. In such circumstances the prosecution proceedings have to be terminated for the failure to define laboratories in terms of Section 23(1A)(ee) and the consequential failure to conduct an analysis of the particular sample by the public analyst from such a laboratory. In other words taking note of the nature of the food article involved and the method to be employed to find out the adulteration if an analysis from a laboratory is not at all required in such circumstances the prosecution cannot be stifled on the ground that the laboratories in terms of provisions under Section 23(1A)(ee) were not defined".

The item of food article involved in this case is tomato sauce. Indisputably, cognizance was taken by the trial court on the basis of Annexue-A2 complaint. Annexure-A1 report of the Public Analyst forms the foundation for the prosecution against the petitioner. Till the repealing of the Prevention of Food Adulteration Act, 1954 no laboratory from where a Public Analyst could conduct an analysis in terms of Section 23(1A)(ee) of the Act was defined. In the absence of a report given by a Public Analyst, after conducting analysis in a laboratory as defined in terms of Section 23(1A)(ee) of the Act, in view of the decision of the Apex Court in Pepsico (supra), there cannot be a successful prosecution as the provision under Section 23(1A)(ee) of the Act is mandatory. When that be the position, the proceedings against the petitioner in the case are liable to be terminated by invoking the power under Section 482 Cr.P.C in the interest of justice.

Consequently, the petition is allowed. All proceedings taken against the petitioner on the basis of Annexure-A2 complaint in the case S.T.No.2110/2009 on the file of the Court of the Judicial First Class Magistrate, Nilambur, are hereby quashed.