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2010 DIGILAW 169 (KER)

Beena Palliyil Rajan v. State of Kerala

2010-02-24

M.SASIDHARAN NAMBIAR

body2010
ORDER M. Sasidharan Nambiar, J. 1. Petitioners are the accused in C.C.282/2005 on the file of the Judicial First Class Magistrate's Court, Kodungallur taken cognizance for the offence under section 16(1) (a.) (i) (ii) read with section 2 (ia) (ix) (d) and 7 (ii) of Prevention of Food Adulteration Act. Prosecution case is that on 16.9.2004 at 1-45 p.m. Food Inspector Kodungallur Circle went to the Family Centre Supermarket at Kalamuri of Kaipamangalam Panchayat and disclosing his identity purchased urd whole and prepared three samples sent one of the sample to the Public Analyst and the other two to the Local Health authority. Annexure A2 report or Public Analyst was obtained to the effect that the sample is coated with an. inorganic matter and therefore misbranded as per Section 2 and (d) of Prevention of Food Adulteration Act. Based on the report, Annexure A1 complaint was filed which was taken cognizance by the learned Magistrate. Petitioners exercised the right available under section 13(2) of the Act and sent one of the samples kept at the ,Local Health Authority for examination by Central Food Laboratory and after analysis Annexure A3 certificate was issued stating that the sample contravens Section 2(ix}(d) of Prevention of Food Adulteration Act as 0.38% of talcum was found which shall be absent as per the standard prescribed. This petition is filed under section 482 of Code of Criminal Procedure to quash the cognizance taken contending that in order to sustain the charge of misbranding under section 2(ia)(ix)(d), the powder or coating must be to conceal the damage of the article-le or to make it appear better of or of greater value than it really is and when the complainant does not disclose an allegation that the polishing or coating of talc was to conceal the fact that the article was damaged or to make it to appear better of or greater value, there is no misbranding and in such circumstances, there cannot be a conviction. It is contended that talc is actually wheat powder applied for the purpose of preventing the food article from mixing with other balls and the entire talc will be washed with water before it is used for consumption and it is a necessary ingredient to make the product retain its quality and therefore continuation of the prosecution is only an abuse of process of the court and hence it is to be quashed. 2. Learned counsel appearing for the petitioners and the learned Public Prosecutor were heard. 3. Standard prescribed for Urd whole in Appendix B A. 18.06.6 is that urd whole shall consist of seeds of pulses (phaseolous mungo Linn) and it shall be sound, dry, sweet and wholesome and shall conform to the standard provided under clauses (i) lo (vii), providing that the total of foreign matter, other edible grains and damaged grains shall not exceed 9 percent by weight. Annexure A2 report of the Public Analyst is superseded by Annexure A3 report of the Central Food Laboratory as provided under section 13(3) of the Act. Annexure A3 report shows that the percentage of moisture is 9,56%. The standard prescribed shows that it can be upto 14%. Foreign matter permissible is 1%. The presence of talc is 0.38%. Annexure A3 report shows that the contravention is of Section 2 (ia)(ix)(d) of the Act. 4. Misbranded is defined under section 2(ix) (d) as follows:- "(ix)"misbranded"-an article of food shall be deemed to be misbranded xx xx xx xx xx xx xx (d) if it is so coloured, flavoured or coated, powdered or polished that the fact that the article is damaged, is concealed or if the article is made to appear better or of greater value than it really is." The finding in Annexure A3 report as well as the allegation in Annexure A1 complaint is that there is contravention of clause (d) of Section 2(ia) (ix) article of food shall be deemed to be misbranded under clause (d) if it is so coloured, flavoured or coated, powdered or polished and it is done for concealing that the article is damaged to appear that it is of better quality or of greater value than it really is. It is thus clear that to sustain the case of misbranding by operation of clause (d), the food article shall be so coloured, flavoured or coated, powdered or polished and it was done to conceal the fact that the article is damaged or to make the article of better or greater value than it really is. Therefore unless the article of food was damaged and it was coloured, flavoured, or coated, powdered or polished to conceal that damage, there cannot be misbranding unless there is an allegation that it was so coloured, flavoured, coated, powdered or polished or polished to appear that it is of better or greater value than it really is. 5. Neither Annexure A3 report of the Central Food Laboratory nor Anneuxre A1 complaint shows that the Uzhunnu ball (urd whole) purchased by the Food Inspector from the petitioners was either damaged and it was coloured or coated powdered to conceal the damage. There is also no case that it was polished with talc or powdered to make it appear that it is of better or of greater value than it really was. If that be so, for the mere presence of 0.38% of talc as found in Annexure A3 report, it cannot be said that there was misbranding. 6. The position is covered by the decision of a learned single Judge of this Court in Chekkutty v. Food Inspector (1979 K.L.T 38). In that case also the food article was Uzhunnu ball. The report of the Public Analyst in that case showed the samples contain coating of talc and it was therefore misbranded as per Section 2 {ix)(d) of the Prevention of Food Adulteration Act. This court on similar facts held:- "The prosecution has not informed the accused as to what, according to it, was the definite purpose with which the coating of the dhall was done whether it was for concealing damage, if any, or for giving the dhall an appearance of better or of greater value than it really was, which he was entitled to know while defending the case. This being the position, it has to be held that the opinion of the public analyst, leaving the court to guess the definite purpose of coating the dhall with talc contained in Ext,P7 report that the sample was misbranded cannot be treated as conclusive evidence of the offence as defined in S.2 (ix))(d) of the Act." The facts are identical. 7. Annexure A1 complaint does not disclose either that the article of food was damaged or that it was coated with talc for the purpose of concealing the damage. There is also no case that the presence of talc was for the purpose of concealing the damage. There is also no case that presence of talc was to give it better appearance so that it could be sold by the petitioners or purchased by the customers as it appeared to be of greater or better value than what it is. If that be so, petitioners, even if tried cannot be convicted for contravention of Section 2 {ix) {d) of the Prevention of Food Adulteration Act. 8. The Explanation to items A. 18.06 to 18.06.14 defines "foreign matter". Foreign matter' means any extraneous matter other than foodgrains comprising of- (i) inorganic matter consisting of metallic pieces, sand, gravel, dirt, peboles, stones, lumps of earth, clay and mud, animal filth and in the case of rice, kernels or pieces of kernels, if any, having mudsticking on the surface of the rice and (ii) organic matter consisting of husk, straws, weed seeds and other inedible grains and also paddy in the case of rice." This court had occasion to consider the question whether the talc found in blackgram dhall (split pulse, Urd) would come under a foreign matter and thereby its presence would make the article of food, adulterated in Food Inspector v. Sivarama Menon (1990( 1) KLT 393). Though Rule 27 provides that inorganic colouring matters and pigments shall not be added to any article of food unless otherwise provided in Appendix B and C of the Rule 27 before the present rule was substituted by GSR 388 E dated 25.6.2004 provided that inorganic colouring matters and pigments shall not be added to any article of food providing that chewing gum may contain Titanium dioxide (food grade) up to a maximum limit of 1 per cent. This court in the light of Rule 21 as then stood in Food Inspector v. Sivarama Menon ( 1990(1) KLT 393 ) held that under Rule 27 of Prevention of Food Adulteration Rules, what is prohibited is only inorganic colouring matters and pigments in Appendix B A. 18.06, and talc is not an inorganic compound as it is neither a pigment nor a colouring matter. Therefore even by relying on Rule 27, it cannot be said that there was adulteration. In such circumstances, when based on Annexure. A1 complaint and Annexure A3 report, even if petitioners are to be tried, there is no likelihood of a successful prosecution, it is not in the interest justice to continue the prosecution. Petition is allowed. C.C.282/2005 on the file of Judicial First Class Magistrate's Court, Kodungallur is quashed.