[Cites 4, Cited by 0]
Kerala High Court
Eldho P.Varghese vs State Of Kerala on 27 January, 2026
Author: C.S.Dias
Bench: C.S.Dias
2026:KER:6486
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 27TH DAY OF JANUARY 2026 / 7TH MAGHA, 1947
CRL.MC NO. 179 OF 2026
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.431 OF 2016 OF
JUDICIAL MAGISTRATE OF FIRST CLASS I ,PERUMBAVOOR
PETITIONERS/ACCUSED 1 AND 2:
1 ELDHO P.VARGHESE
AGED 38 YEARS
PUTHENKUTY HOUSE, KARIYELI, KOMBANAD P.O,
PERUMBAVOOR, PIN - 683546
2 M/S. K.K.R FOOD PRODUCTS
OKKAL P.O, CHELLAMATTOM,
ERNAKULAM DISTRICT,
REP. BY ITS NOMINEE,
ELDHO P.VARGHESE, PIN - 688546
BY ADVS.
SRI.R.KRISHNAKUMAR (CHERTHALA)
SMT.TINY THOMAS
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 FOOD SAFETY OFFICER, PERUMBAVOOR CIRCLE,
NEAR MINI CIVIL STATION, PERUMBAVOOR,
ERNAKULAM DISTRICT, PIN - 683542
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
ADGP. SRI.GRASHIOUS KURIAKOSE,
PUBLIC PROSECUTOR- SRI.M.P.PRASANTH
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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.01.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Dated this the 27th day of January, 2026
ORDER
The petitioners are the accused 1 and 2 in C.C.
No. 431/2016 on the file of the Court of the Judicial First
Class Magistrate-I, Perumbavoor ('Trial Court', for
brevity), which has been registered on the basis of a
complaint registered by the second respondent alleging
the commission of the offences punishable under
Sections 3.1(zx), 3(1)(zz)(v), 26(2)(i)(ii), 27(1), 38(1)(a)(i),
59(i) &(ii) and 51 of the Food Safety and Standards Act,
2006 ('Act', for short), read with Regulation 2.9.3.2 of
the Food Safety and Standards (Food Products and Food
Additives) Regulations, 2011 ('Regulations', for short).
2. The concise case of the prosecution is that;
On 04.09.2015, at around 11:30 hours, the
second respondent visited the premises of the second
petitioner and purchased eight packets of chilly powder
by paying Rs. 252.76/-. The said samples were sent to a
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food analyst, who, by Form B, reported that the samples
do not conform to the standards prescribed for chilly
powder as laid down under Regulation 2.9.3.2 of the
Regulations. Thus, the sample was substandard under
Section 3.1(zx) of the Act. After that, the second
respondent, as requested by the first accused, sent the
second sample to the Referral Laboratory under Section
46(4) of the Act. Nonetheless, the Referral Laboratory
found the presence of 'added starch' in the food product
and heavy metals such as lead and arsenic higher than
the prescribed limit.
3. I have heard the learned counsel for the
petitioners and the learned Additional Director General
of Prosecution.
4. The learned counsel for the petitioners submits
that in view of the divergent views taken by the two
laboratories, the proceedings under the Act are not
maintainable in view of Rule 3.1.1 of Chapter 3 of the
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Food Safety and Standards Rules, 2011 ('Rules', for
brevity). While dealing with identical matters, by
Annexures A4 and A5 orders, this Court has quashed the
proceedings. In view of the declaration of law in
Annexures A4 and A5 orders, the petitioners are also
entitled to the benefit of the said orders. Hence, the
entire proceedings may be quashed.
5. The learned Additional Director General of
Prosecution opposed the Crl.M.C. He submits that the
case of the year 2016. It is nearly after ten years that the
present Crl.M.C is filed. The Crl.M.C is only to be
dismissed on the ground of delay. Nonetheless, he did
not dispute the findings in Annexures A4 and A5 orders,
and tacitly conceded to the principles laid down in the
afore-said orders have attained finality.
6. The prosecution was launched on the ground
that the chilly powder that was seized from the
petitioners' premises was not conforming to the standard
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of the chilly powder as laid down under Regulation
2.9.3.2 of the Regulations.
7. Admittedly, on the request of the first
petitioner, the second sample was sent to the Referral
Laboratory, which in turn has taken a divergent view
that the sample contains heavy metals and, therefore,
does not confirm the prescribed standard. The findings in
the reports of the food analyst and the referral
laboratory are divergent.
8. Dealing with the identical situation, by
Annexures A4 and A5 orders, this Court, taking into
consideration the scope and purport of Rule 3.1.1 of the
Rules and that there are divergent views in the two
reports, found that the prosecution was not sustainable
in law. Consequently, the entire proceedings were
quashed as per the above orders.
9. The objection raised by the learned Additional
Director General of Prosecution that, although the case
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is of the year 2016, the Crl.M.C. is only filed on
08.01.2026. I find the said submission to be untenable
because in Annexures A4 and A5 orders, the cases were
of the year 2023 in respect of crimes of the year 2022.
Furthermore, the question of law whether a prosecution
would lie when there are divergent views in the two
reports of the two laboratories has only crystallised by
Annexures A4 and A5 orders. Thus, I am of the definite
view that the petitioners should also get the benefit of
the similar orders. Merely because there is some delay in
the filing of the Crl.M.C., it cannot be a ground to
dismiss the Crl.M.C. on hypothetical grounds; instead,
the matter is to be decided on merits.
10. On an overall consideration of the facts, the
rival submissions made across the Bar and the materials
placed on record, particularly Annexures A4 and A5
orders, I am satisfied that this is a fit case to exercise the
inherent powers of this Court under Section 528 of the
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Bharatiya Nagarik Suraksha Sanhita, 2023.
In the aforesaid circumstances, I allow the
Crl.M.C by quashing all further proceedings in C.C. No.
431/2016 of the Trial Court as against the petitioners.
Sd/-
mtk C.S.DIAS,JUDGE
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APPENDIX OF CRL.MC NO. 179 OF 2026
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE COMPLAINT FILED BY THE
2ND RESPONDENT BEFORE THE HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE COURT-I,
PERUMBAVOOR DATED 16-08-2016
Annexure A2 A TRUE COPY OF THE FORM B REPORT NO.
75/2015-16 OF THE FOOD ANALYST, ERNAKULAM
DATED 20-10-2015
Annexure A3 A TRUE COPY OF THE FORM A REPORT BEARING
CERTIFICATE NO. G.14-7A/D.O/2016-325
ISSUED BY THE DIRECTOR, CENTRAL FOOD
LABORATORY, KOLKATA DATED 29-04-2016
Annexure A4 A TRUE COPY OF THE JUDGEMENT DATED 02-09-
2024 IN CRL.M.C NO. 2371/2017 & CONNECTED
CASE OF THIS HON'BLE COURT
Annexure A5 A TRUE COPY OF THE JUDGEMENT DATED 28-11-
2024 IN CRL.M.C NO. 2408/2024 OF THIS
HON'BLE COURT
Annexure A6 A TRUE COPY OF THE JUDGEMENT IN CRL.M.C
NO. 298/2025 OF THIS HON'BLE COURT DATED
20-03-2025
