Suresh vs Food Inspector

S.S. Satheesachandran, J.—Petitioners are the accused in a pending case on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram. They are being prosecuted for offences punishable under S. 2(i-a)(f) and 7(i) read with S. 16(1)(1-A) of the Prevention of Food Adulteration Act, 1954, for short the PFA Act on a complaint filed by the Food Inspector Corporation of Trivandrum, hereinafter referred to as the complainant. Annexure A1 is a copy of the complaint. Complainant inspected a super market byname ''Padmanabha Fair Trade Super'' market, Vallakadavu on 30.3.2007, and, after disclosing his identity he purchased six packets of meat masala from that super market. Seventh accused a partner of the firm was present at the time of inspection and purchase. Complainant complied with the formalities over the issue of notice, payment of price, sampling of the food item etc., and prepared a mahazar in accordance with the Rules. One part of the sample with Form 7 memorandum and specimen was sent over to the Public Analyst and the other two parts of sample with the accompaniments required were given to the Local Health Authority, Thiruvananthapuram. Report on analysis over the sample sent over, received from the Analyst revealed that the food item was adulterated. Sample contained dead and living insect fragments and larva and was unfit for human consumption. After giving notice and collecting the particulars of manufacturer, nominees etc., complaint was laid to prosecute all of them, petitioners herein, for offences punishable under S. 2(i-a) and (f) and S. 7(i) read with S. 16(1)(1-A) and R. 37A(2)(b) of PFA Rules. Second accused is a manufacturing company and first accused nominee of that Company. Fourth accused is a marketing company and third accused nominee of that company. Fifth accused is the distributor of the food product. Eighth accused is the Firm, Padmanabha Fair Trade Super market, from where the food item was purchased by the complainant, and seventh accused, partner of that firm, and sixth accused its PFA licensee and another partner of the firm. Receiving notice on the complaint the accused persons applied under S. 13(2) of the Act to have analysis of the second sample by the Central Food Laboratory. That laboratory, after analysis of the sample sent over, issued Annexure C. certificate. Copy of the report of Public Analyst is Annexure B, and Annexure C copy of certificate issued by the Central Food Laboratory. Annexure C certificate superseding Annexure B report of the Analyst disclosed that sample was not adulterated. In Annexure C opinion was furnished that label declaration on the packet over HACCP certificate contravened R.38 of PFA Rules, the above finding made in Annexure C report is without jurisdiction, and continuance of prosecution proceedings on the complaint filed alleging that the food item was adulterated, which has been found against in Annexure C report, is unsustainable, is the case of petitioners, for filing the above petition invoking the inherent powers of this court under S. 482 of the Code of Criminal Procedure, for short the Code, to quash the criminal proceedings against them arising from Annexure A complaint.

I heard learned counsel for petitioners and also learned Government Pleader.

Learned counsel for petitioners contended that continuation of the prosecution proceedings on a new case, on the basis of Annexure C report, constituting a distinct and different offence not based on Annexure B report, which was the basis of the complaint, on the supersession of Annexure B report, is contrary to law and it is an abuse of process of law. Where Annexure B report stands superseded whatever be the violation of rules noted in Annexure C report, without fresh sanction for prosecution, according to counsel, under the previous complaint of the complainant prosecution of the accused cannot be continued. Learned counsel relied on Food Inspector, Ernakulam and Another Vs. P.S. Sreenivasa Shenoy, contending that the new offence with respect to violation of R.38 of the PFA Rules is not based on the factual allegations included in the complaint for prosecuting the petitioners, and as such on the complaint previously filed in which different offence under the Act and Rules were imputed the prosecution cannot be continued. Learned counsel also contended that the declaration made on the label HACCP certified is only that the hazard analysis control point has been duly certified, and there was no violation of R.38 of the PFA Rules. So much so, prosecution of the petitioners on the basis of the remarks or finding made in Annexure C certificate that such labeling in the packet violated R.38 of the PFA Rules cannot be given any significance and on that account also prosecution of the petitioners is bad, according to the counsel. Lastly learned counsel for petitioners adverting to S. 95 of the Indian Penal Code contended that mere labeling in the packet ''HACCP certified'' can be viewed of no consequence as such labeling would not cause any harm, and if at all any harm it is so slight that no person would complain of such harm. That also taken into account, according to counsel, prosecution proceedings against the petitioners call for quashing it invoking the inherent powers of this Court.

I do not find any merit in the submissions made by the counsel that sanction afresh is required to prosecute the petitioners when Annexure C certificate of the Central Food Laboratory superseded by Annexure B report of the Analyst. Annexure B report of the Analyst preceded the prosecution proceedings launched against the petitioners. In the post cognizance stage petitioners invoked the statutory right to send second sample for analysis. Certificate issued by the Central Food Laboratory after analysis of the second sample supersedes the report of the Analyst. In a prosecution proceeding commenced on the basis of Annexure B report where a certificate is issued by the Central Food Laboratory, after analysis of the second sample, it is a case of substituting the report with such certificate. If the finding in the certificate, issued by the Central Food Laboratory discloses no offence whatsoever, then, it is a case for cessation of the prosecution proceedings. However, when such certificate disclosed of an offence under the PFA Act or Rules, even if it is different from that stated in the report of Analyst, the accused cannot contend that prosecution proceedings commenced have become vitiated and as such it is liable to be quashed. There is no merit in the challenge canvassed that fresh sanction is required where Annexure C certificate disclosed only of misbranding and not of adulteration of the food item. No sanction is contemplated for prosecuting an offender of PFA Act and Rules under the statutory provisions, but, only an interdiction over the institutional competency for filing complaint stipulating who alone are competent to file such complaints, under S. 20 of the Act. The aforesaid section reads thus:

Cognizance and trial of offences -- (1) No prosecution for an offence under this Act, not being an offence under S. 14 or S. 14A shall be instituted except by, or with the written consent of, (the Central Government or the State Government) or a person authorised in this behalf, by general or special order, by the Central Government or the State Government. Provided that a prosecution for an offence under this Act may be instituted by a purchaser (or recognised consumer association) referred to in S. 12 (if he or it produces) in court a copy of the report of the public analyst along with the complaint.

Complainant has produced the gazette notification with the complaint that he has been authorised by the State Government to file the complaint and prosecute the accused persons. No challenge has been made to impeach the authorisation conferred on complainant empowering him to file the complaint and prosecute the accused. Sanction for prosecution is different from conferring authority or empowerment to a person, to have institutional competency to commence prosecution proceedings against an offender covered by the Statute. So much so the challenge canvassed that fresh sanction has to be obtained to prosecute the petitioners for the violation of PFA Rules noted in Annexure C certificate which superseded Annexure B report in which court took cognizance of the offences on the complaint of Food Inspector has no merit. Substitution of Annexure B report by Annexure C certificate of the Central Food Laboratory as statutorily mandated alone takes place where analysis of second sample is made in terms of S. 13(2) of the Act. In the reported decision, Food Inspector''s case stated supra, and relied by the counsel, what has been stated negativing the contention projected by the counsel for the accused in that case over the alteration of charges under S. 216(5) of the Code has no applicability to the case. Dilating upon the question posed it was held that where amended charges include a new offence, for which previous sanction is necessary, then, prosecution for such new offence cannot be started without such sanction. When sanction is not required but only of institutional competency to commence prosecution by the complainant, and certificate of Director of Central Food Laboratory supersede the report of analyst, no question of alteration of charge would arise. The basic facts on which prosecution is based remain without change, and what, is involved is only institutional competency for filing the complaint which indisputably the Food Inspector in the present case was conferred with, and Annexure C certificate only Substituted Annexure B report in the post cognizance stage of the case.

I am not expressing any opinion over the challenge raised by the counsel that the labeling HACCP certified in the packet does not in any way affect R.38 of the PFA Rules. Petitioners can raise such a defence, if so available, before Magistrate, which now remain unsupported with any material. Such labeling in the packet would not cause any harm, and no consumer would also complain of any harm, the submission made by the counsel to seek the support from S. 95 of the Penal Code one among the general exceptions under that Code to relieve the petitioners from prosecution cannot be accepted. All offences under the PFA Act whether it relates to adulteration or misbranding are grave offences, to which the exception covered under S. 95 would not come to the aid of an offender proceeded thereof. The Act is intended to project the public from using adulterated food, to avoid danger to their life and health. It is the duty of the State to protect the public and with that object the Act has been enacted. Even the absence of guilty knowledge is not a defence in a prosecution under the Act, with the exception covered by S. 19(2) of the Act subject to the satisfaction of the conditions thereof by the accused invoking a defence of warranty over the food product. I do not find any merit in the submission made by counsel banking upon S. 95 of the I.P.C. to relieve the accused person from the prosecution in the present case. Challenges raised by the petitioners against their prosecution are devoid of any merit.

Crl. M.C. is dismissed with direction to the Magistrate to complete the proceedings of the case expeditiously.