The judgment establishes that the provisions under Sections 23(1A)(ee) and (hh) of the Prevention of Food Adulteration Act, 1954 are mandatory, and prosecution based on analysis conducted in laboratories not defined under these provisions is not maintainable.

ORDER :

The petitioners are the second and the third accused in the case S.T.No.378/2009 pending in the Court of the Judicial First Class Magistrate, Kuthuparamba.

2. The petitioners are prosecuted in the aforesaid case by the Food Inspector, Kuthuparamba Circle for committing the offences punishable under Sections 2(ia)(m) and 7(i) read with 16(ia)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act').

3. On 18.11.2008, samples of tomato sauce were collected by the Food Inspector from the grocery shop by name Nizar Traders at Kelakam. The first accused was the salesman of the shop who sold the food item. The second accused is the nominee of the third accused firm which manufactured and distributed the tomato sauce.

4. The sample was forwarded to the Public Analyst, Regional Analytical Laboratory, Kozhikode. Annexure-A1 is the copy of the report of the Public Analyst. It shows that the sample did not conform to the standards prescribed for tomato sauce under the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules') and therefore, it was adulterated.

5. On the basis of Annexure-A1 report of the Public Analyst, Annexure-A2 complaint against the three accused was filed by the Food Inspector.

6. This petition is filed under Section 482 Cr.P.C by the second and the third accused for quashing Annexure-A2 complaint and all further proceedings taken against them in the case.

7. Heard the learned counsel for the petitioners and the learned Public Prosecutor.

8. Learned counsel for the petitioners contended that the complaint filed by the Food Inspector, which is based on Annexure-A1 report of the Public Analyst, is not maintainable in the light of the decision of the Supreme Court in Pepsico India Holdings Private Limited v. Food Inspector : (2011) 1 SCC 176.

9. Section 23(1A)(ee) of the Act provides that, the rules may provide for defining the laboratories where samples of articles of food or adulterants may be analysed by the public analyst under the Act. Section 23(1A)(hh) of the Act provides that, the rules may provide for defining the methods of analysis.

10. In Pepsico India Holdings (supra), the first point raised for consideration by the Apex Court was, whether in the absence of any prescribed and validated method of analysis under Section 23(1A)(hh) of the Act, could a prosecution have been launched against the accused based on a report submitted by the public analyst using the method of the Directorate General of Health Services (DGHS).

11. The Apex Court considered the aforesaid question in detail and held that the provisions under Sections 23(1A)(ee) and (hh) of the Act are mandatory and not directory. The Apex Court also held that, since the laboratories were not defined for the analysis by public analysts and the methods of analysis were also not defined, prosecution based on the analysis conducted in such laboratories is not maintainable.

12. In Rasheed v. Food Inspector: 2016 (2) KHC 679, a Division Bench of this Court considered the question whether all the prosecutions under the Act could be stifled by raising a contention that the laboratories or methods of analysis were not defined. The Division Bench answered the question as follows:

“Wherever an analysis has to be conducted from a laboratory to find whether the particular sample of item of the particular food article is adulterated, to form the basis for initiation of prosecution under the PFA Act the report of the analyst in relation to that sample must be one conducted in a laboratory defined under Section 23(1A)(ee). Since no such laboratory was defined till the repealing of the PFA Act wherever an analysis from a laboratory was inevitable for making a report regarding item concerned as adulterated there cannot be any successful prosecution in the absence of such a report. In such circumstances the prosecution proceedings have to be terminated for the failure to define laboratories in terms of Section 23(1A)(ee) and the consequential failur