Crl. M.C. No. 1266 of 2013. Case: Abdul Khader and Ors. Vs State of Kerala and Ors.. High Court of Kerala (India)
| Case Number | Crl. M.C. No. 1266 of 2013 |
| Counsel | For Appellant: Sasthamangalam S. Ajithkumar, Advocate and For Respondents: Tom Jose Padinjarekkara, Additional Director General of Prosecution |
| Judges | K. Ramakrishnan, J. |
| Issue | Air (prevention And Control Of Pollution) Act, 1981 - Section 18, 20, 22A; Code of Criminal Procedure, 1973 (CrPC) - Sections 133, 156(3), 167, 173,174, 482; Constitution Of India - Article 20(2); Electricity Act, 2003 - Section 151; Food Safety And Standards Act, 2006 - Sections 26(1), 26(2)(i), 3(1)(zz)(iii), 3(zz), 31(1), 34, 37(1), 42(5), 5... |
| Citation | 2015 (1) KHC 285, 2015 (1) KLJ 346 |
| Judgement Date | December 09, 2014 |
| Court | High Court of Kerala (India) |
Order:
K. Ramakrishnan, J.
1. Accused Nos. 1 to 5 in Crime No. 732/2012 of Museum Police Station, Thiruvananthapuram have filed this petition to quash the proceedings under Section 482 of the Code of Criminal Procedure. It is alleged in the petition that the petitioners are accused 1 to 5 in Crime No. 732/2012 of Museum Police Station, Thiruvananthapuram alleging offences under Sections 273, 328 and 34 of the Indian Penal Code read with Section 59(iii) of the Food Safety & Standards Act. This case was registered upon a complaint No. 187/DPIN/BS/12 dated 15/07/2012 and the crime was registered by the Sub Inspector of Police, Museum Police Station. The second respondent is a Police Officer, who is not a notified authority under the Food Safety and Standard Act, which came with effect from 29/07/2010. The petitioners are conducting a restaurant by name "Salwa Café" at Vazhuthakad junction, Thiruvananthapuram. The allegation was that on 10/07/2012, the second accused prepared food article by name 'Shavarma', which was injurious to health and that was sold to several persons, who developed complications and that, around 10 persons were admitted in different hospitals in Thiruvananthapuram. It is alleged that a person by name Sachin Mathew Roy, aged 21 years, also purchased and consumed 'Shavarma' from the restaurant of the petitioners on 10/07/2012 and he developed serious gastro problem, which resulted in his death at Bangalore. It is further known that with regard to the death of Sachin Mathew Roy, Crime No. UDR/No. 52/12 under Section 174 of the Code of Criminal Procedure was registered in Kalasipalayam Police Station and it is being investigated.
2. On the basis of the complaint received, Museum police has registered Crime No. 732/2012 alleging offences under Sections 273, 328 and 34 of the Indian Penal Code read with Section 59(iii) of the Food Safety and Standard Act, 2006. During the course of investigation, on 18/07/2012 around 4 p.m. the petitioners surrendered before the Sub Inspector of Police, Museum Police Station and they were arrested and produced before the Judicial First Class Magistrate Court-III, Thiruvananthapuram on 19/07/2012 and they were remanded to judicial custody and after 50 days of judicial custody, the petitioners were granted bail. After the death of Sachin Mathew Roy, the Food Safety Authority has filed a complaint before the Judicial First Class Magistrate Court-III, Thiruvananthapuram and it is pending as CC No. 231/2012 as against the first petitioner. The case of the petitioners is that after the coming into force the Food Safety and Standard Act, the general provisions in the Indian Penal Code regarding the same subject-matter is impliedly repealed and they cannot be dealt with under both the enactments. Further different procedure and different punishment have been provided under the later Act namely Food Safety and Standard Act, 2006 and severe punishment has been provided for selling unsafe food causing death and this Act has repealed the existing Prevention of Food Adulteration Act and taken care of all type of offences relating to sale of food and consequences ensued on account of sale of such food. So, under the circumstances, they cannot be proceeded against under two enactments and they prayed for quashing the proceedings on that ground.
3. The Inspector of Police, Museum Police Station has filed a statement contending as follows:
On the strength of a complaint received from one Jijesh, a crime was registered in Museum Police Station as Cr. No. 732/2012 under Section 328 and 34 of the Indian Penal Code against the petitioners. The allegation was that on 15/07/2012 a petition was received from one Jijesh complaining that he and two other friends consumed 'Shavarma' bought from 'Salwa Cafe', Vazhuthakad, Thiruvananthapuram on 10/07/2012 and it was infected with food poisoning. All the three persons were admitted to Medical College Hospital and were undergoing treatment there and requested to take action against the hotel owner. On the strength of the petition, a crime was registered and investigation of the above case was also revealed the commission of offence under Section 273 of the Indian Penal Code and a report was submitted to add that section also. It was revealed during investigation that several persons, who consumed 'Shavarma' from the said hotel on the fateful day were infected with food poisoning and were admitted to several hospitals in and around Thiruvananthapuram City and reports have come through visual media and print media that on account of consumption of the same, several other persons also infected by food poisoning and a death was reported from Bangalore of one Sachin Mathew Roy who also consumed the 'Shavarma' bought from 'Salwa Cafe'. Investigation revealed that A1-Abdul Khader, S/o. Muhammed, aged 50, Flat No. 3A, Heaven, Pandit Colony, Kowdiar, Kuravankonam Ward from Kalanoor Veedu, Kalannoorpuram Desom, Bayar Village, Kasargode, A2 Jaleel, aged 27, S/o. Muhammed, H. No. A. 72, Sasthamangalam, Sasthamangalam Village, from B.C. House, Kurar Desom, Mangalpad Uppalam Village, Kasargode, A3-Rajkumar Sahu, aged 22, S/o. Muhhan Sahu, Santhoshpur Desom, Mirgon Village, Vidanappur District, Bangal, A4-Jenthu Sett, aged 20, S/o. Panchanan Sett, Mijigeru Desom, Pulamon Village, Poorva Midhinapur, West Bengal, A6-Abdul Salam, aged 42, S/o. Abdul Rehman, Charuvilakathu Veedu, in front of Muslim Jama Ath, Karuvani, Upaniyoor Desom, Kalliyoor Village were responsible for the preparation and sale of the same and so they were arrested on 18/07/2012 and were remanded to judicial custody. Section 59(iii) of Food Safety and Standard Act was added as that offence was also committed.
4. When the death of Sachin Mathew Roy was reported from Bangalore, Kalasipalayam police registered a case as UDR. No. 52/2012 under Section 174 of the Code and inquest was conducted and postmortem examination was conducted and it was revealed that he also died on account of the food poisoning due to consumption of 'Shavarma' sold from the shop of the accused persons and on that basis, they have added Section 304 of the Indian Penal Code also and investigation is pending. When it was revealed that a complaint was filed by the Food Safety and Standard Authority and that is pending as CC No. 231/2012 against the first petitioner and Section 59(iii) of Food Safety and Standard Act was added in that complaint, they filed a report to delete that section from the First Information Report. The allegation that the police has no power to investigate the offence under this Act is not correct. No crime was registered under the provisions of the Food Safety and Standard Act and the petitioners were not arrested in connection with the offences under that Act. They are independent and distinct offences and it was not covered by the Special Act. Dr. G. Samuel has filed a petition along with father of deceased Sachin Roy Mathew before Kerala State Human Rights Commission, Thiruvananthapuram and that is also pending consideration before the Commission as HRMP. No. 3985/2012 and HRMP. No. 4007 of 2012. So according to the respondents, the petitioners are not entitled to get the relief of quashing the proceedings and they prayed for dismissal of the petition.
5. The third respondent filed a statement contending as follows:
On 12/07/2012 at about 8 p.m. the Joint Food Safety Commissioner, Sri. K. Anil Kumar, received a complaint over phone from Mr. Shobi Thilakan that he and his family were severely affected by food poisoning by consuming the 'Shavarma' in the evening on 10/07/2012 from the restaurant and they were undergoing treatment at PRS Hospital, Thiruvananthapuram. Based on the information, Food Safety Officer, Mobile Vigilance Squad, Thiruvananthapuram was entrusted to enquire the matter and report. By about 8 p.m. on 12/07/2012 he met Sri. Shobi Thilakan and Dr. Rakesh of Gastroenterology Department at the hospital, who was treating these patients and prepared statement. It is a clear case of food poisoning and Sri. Shobi Thilakan asserted that the 'Shavarma' he consumed was the reason for the food poisoning and explained the course of events as he purchased four 'shavarma' parcel by 8 p.m. on 10/07/2012, went home and he and his wife and two children ate the same by 9 p.m. By early morning, all of them started vomiting and had Diarrhea etc. He had also informed that Aravind, aged 14, Muhammed Ammar, aged 8, Krishnanthampi and three other family members were also under treatment at the PRS Hospital due to consumption of 'Shavarma'. Out of them, Anand was in the IC Unit whose condition was critical. Food Safety Officer, Mobile Vigilance Squad, Thiruvananthapuram had conducted inspection in the premises of 'Salwa Cafe' at 9.30 p.m. on 12/07/2012 and found that the hotel was running in unsanitary conditions and the proprietor failed to produce the PEA licence or Food Safety Standard Licence and medical fitness certificate of employees and hence ordered to close down the hotel under oral instruction from Commissioner of Food Safety.
6. On 13/07/2012, considering the gravity of offence, the Commissioner of Food safety himself issued emergency prohibition order under Section 34 of the Food Safety & Standards Act, 2006. The same was affixed on the shutter of 'Salwa Cafe' running in building bearing number 15/1989. The depositions of the injured were taken on 14/07/2012 from PRS Hospital, Thiruvananthapuram. On 15/07/2012 there was a flash news in visual media that one Sachin Mathew Roy passed away at Bangalore by consuming 'Shavarma' sold from the said restaurant. Enquiry was conducted in the matter and depositions of all concerned were taken by the Designated Officer and Food Safety Officer. These things revealed that they had also taken 'shavarma' from the said restaurant on 10/07/2012 night. So it is clear from the circumstances that the licensee of the shop had sold the unsafe...
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