M. Kishin Mulchandani vs Food Inspector, Udhagamandalam Municipality

Arunachalam, J.—Petitioner has been shown as A-2 in C.C.No.42 of 1993, pending on the file of Judicial Magistrate, Ootacamund. He is being prosecuted along with another for haveing allegedly committed offences punishable u/s 7(i) & (ii) & 16(l)(a)(i) r/w Sec.2(ia) (a)(b) and (ix) (i) (k) and Rules 24 and 47 and or any suitable sections (queare) of the Prevention of Food Adulteration Act and Rules.

Complaint preferred by the respondent before the Magistrate shows that on 11.12.1991 at 3.30 p.m. in the presence of his Sanitary Worker, he inspected M/s. Chelllarams, situated at Commercial Road, Ootacamund and obtained sample of Mukvas Supari kept in sealed bag. No lable was found affixed on the bag. Three samples were obtained from Arjun Lal, shown as A-1 in this prosecution, after payment of sale consideration. Sample of Mukvas sent for analysis showed that no lable was affixed, indicating that the sample contained permitted colours, in capital letters. Again, the sample was found to contain Saccharin, not permitted under the Rules. A prosecution was duly initiated, after substantial delay and the respondent thereafter sent an intimation under Sec. 13(2) of the Act.

In this petition preferred under Sec.482 Crl.P.C. to call for the records and quash the pending prosecution, in so far as it concerns the petitioner, as not maintainable and abuse of process of Court Mr. M. Karpagavinayagam, Learned Counsel representing him, submitted that no allegations whatever have been made in the complaint to indicate the connection between M/s. Chellarams and this petitioner and the role played by him in the sale of Mukvas. I have been taken through the printed complaint and the written mater appended to it. Nowhere, even the name of this petitioner has been mentioned, much less any connection between him and M/s. Chellarams or having been in charge of and responsible for the conduct of the business of the company. However, from the original records, summoned from the Court below, I find that in certain forms in print the petitioner has been shown as Manager of M/s. Chellarams. But the said fact, admittedly, is not borne out of any material. It is not even the case of the respondent that he enquired this petitioner and became aware that he was the Manager of M/s. Cellarams.

Mr. I. Subramaniam, learned Addl. Public Prosecutor, when confronted with this contention fairly admitted that at this stage no material whatever exists to connect this petitioner with the offences alleged and slated that, if evidence stands brought on record at a later point of time, it may be possible for the prosecution to request the learned Magistrate and include this petitioner also as an accused under Sec.311 Crl. P.C.

The stand taken by the prosecution is absolutely correct. At this stage, since there is total lack of material against this petitioner, pending prosecution as against him in C.C. No. 42 of 1993 on the file of Judicial Magistrate, Ootacamund, cannot be allowed to survive any longer. It shall stand quashed only in relation to him. It will always be open to the learned Magistrate to use his judicial discretion under Sec.311 Cr.P.C. in the event of evidence being brought on record against this petitioner, during the course of trial. This petition is allowed.