Bose Mathew vs The State Of Kerala
2022 Latest Caselaw 2457 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                       THE HONOURABLE MR. JUSTICE K.HARIPAL
               FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
                               CRL.MC NO. 5738 OF 2021
     AGAINST THE ORDER IN CC 430/2008 OF JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM


PETITIONER/ACCUSED No. 2:


             BOSE MATHEW,
             AGED 65 YEARS
             S/O.P.M.MATHAI, PANAPARAMBIL, PEROOR, KOTTAYAM DISTRICT-686 637.
             BY ADVS.
             K.M.FIROZ
             AGI JOSEPH


RESPONDENT/STATE-COMPLAINANT:


      1      THE STATE OF KERALA,
             REPRESENTED THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
             ERNAKULAM.
      2      THE FOOD INSPECTOR,
             LOCAL HEALTH AUTHORITY, CHANGANACHERRY CIRCLE, CHANGANACHERRY,
             KOTTAYAM DISTRICT-686 101, (NOW HAVING OFFICE AT FOOD SAFETY CIRCLE
             OFFICE, 5TH FLOOR, REVENUE TOWER, CHANGANASSERY, CHANGANACHERRY,
             KOTTAYAM-686 101).
             BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION



             ADGP - SRI. GRACIOUS KURIAKOSE



      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.03.2022, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
 Crl. M. C. NO. 5738 OF 2021
                                        2



                                  ORDER

Petitioner is the 2nd accused in C.C. No. 430 of 2008 on

the file of the Judicial First Class Magistrate's Court-III,

Kottayam where he along with five others were alleged to have

committed offences punishable under Sections 2(1a) (m), 7(1),

16(1) (a) of Prevention of Food Adulteration Act, hereinafter

as referred to as the Act, read with Rule 5 of Appendix B of A-

32 of the PFA Rules, 1955.

2. The proceedings were initiated by the 2nd respondent,

Food Inspector after taking three bottles of mineral water from

the outlet run by the 1st accused. It is contended that when

examined through the Government Analyst, it did not conform

to the standards prescribed and thus criminal proceedings were

initiated. The 1st accused is the vendor of the shop, the 2 nd

accused, the petitioner is the person who had allegedly supplied

the items to the 1st accused and accused Nos. 3 to 6 were said

to be the manufacturers. The case was taken on file as C.C. No.

862 of 2000. By judgment dated 31.10.2008 all accused except

the 2nd accused were found not guilty and were acquitted under Crl. M. C. NO. 5738 OF 2021

Section 248(i) of the Cr.P.C. The case against the petitioner was

split up and refiled as C.C. No. 430 of 2008 and thereafter

removed to the register of Long Pending cases. Now the case

stands registered as L.P. No. 91 of 2020. The petitioner has

approached this Court under Section 482 of the Cr.P.C. for

quashing the proceedings on the ground that all the co-accused

stand acquitted.

3. I heard the learned counsel for the petitioner and also

the learned Additional Director General of Prosecution

representing the respondents.

4. The facts are not in dispute. The proceedings were

initiated by the 2nd respondent alleging the offences stated

supra. One of the three mineral water bottles purchased from

the shop of the 1st accused was sent for examination by the

Government Analyst who had reported that it did not conform

to the standards prescribed for the item and that was how the

proceedings were initiated. Six witnesses were examined on

the side of the prosecution when other accused had faced trial. Crl. M. C. NO. 5738 OF 2021

Exts. P1 to P24 were also marked. Thereafter one witness was

examined as DW1 and Exts. D1 and D2 were marked and by

Annexure A2 judgment all accused except the petitioner were

found not guilty and exonerated. Petitioner strongly relies on

Annexure- A2 judgment and submits that he is entitled to get

the benefit of the same. According to him, even if the petitioner

is put to trial, the possibility of entering a conviction is remote.

5. I have ascertained from the learned Additional

Director General of Prosecution, whether any appeal has been

preferred against the said verdict. According to him, that has

not been challenged. That means, Annexure-A2 judgment dated

31.10.2008 has become final. In the circumstances, the

petitioner is entitled to draw inferences based on the reasoning

adopted by the learned Magistrate in acquitting the co-accused.

6. The learned Magistrate, on evidence, has found that the

bottles were not sealed at the time when seized by the 2 nd

respondent. Annexure A3 also has been relied on. In fact, the

prime consideration in acquitting the co-accused was for taking Crl. M. C. NO. 5738 OF 2021

mineral water bottles without being sealed. No doubt, in

proceedings under the Act, when samples are drawn, it is

peremptory that it should be taken in a foolproof condition. It

being a highly technical offence, unless all the procedural

formalities are followed in letter and spirit, that would result in

exoneration of the culprit. Here, the bottles were not sealed and

the accused had highlighted the above lacuna on the part of the

complainant.

7. Moreover, relying on Ext. D2 certificate of analysis

issued by the Central Food Laboratory in respect of the same

product having the same batch number, it was found that the

sample conformed to the standards of mineral water laid down

under item No. A, 32 of Appendix B of PFA Rules. This aspect

also was considered by the learned Magistrate while acquitting

the co-accused.

8. As rightly pointed out by the learned counsel for the

petitioner, even if the petitioner is put to trial, the above-stated

positions cannot change. As stated earlier, Annexure-A2 has Crl. M. C. NO. 5738 OF 2021

become final. In the circumstances, there is little scope for

successful prosecution of the petitioner and it would be a futile

exercise in trying the petitioner.

9. On this consideration, the proceedings against the

petitioner in L.P. No. 91 of 2020 on the file of the Judicial First

Class Magistrate's Court-III, Kottayam are quashed and the

petitioner shall stand exonerated.

The Criminal Miscellaneous Case is allowed as above.

Sd/-

K. HARIPAL JUDGE RMV/02/03/2022

APPENDIX OF CRL.MC 5738/2021

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE COMPLAINT DATED 06.10.1999 UNDER SECTION 20 OF THE PFA ACT 1954 WITH PARTICULARS OF CHARGE.

Annexure A2 TRUE COPY OF THE JUDGMENT DATED 31.01.2008 PASSED BY THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE III, KOTTAYAM IN CC NO.862 OF 2008.

Annexure A3 TRUE COPY OF THE MAHAZAR DATED 06.01.1999.

TRUE COPY

P.A.TO JUDGE