Altamas Kabir, J. - (1.) All these appeals are directed against the judgment dated 19th February, 2009, passed by a learned Single Judge of the Kerala High Court dismissing the several petitions filed by the Appellants under Section 482 of the Code of Criminal Procedure, 1973, for quashing of the several prosecutions commenced against them. The Appellants in Criminal Appeal No. 836 of 2010, Pepsico India Holdings Pvt. Ltd., is the manufacturer of Sweetened Carbonated Water and is being prosecuted for the presence of Carbofuran in its product. These appeals throw up certain questions relating to the maintainability of the criminal prosecutions launched against the Appellants, namely:(1) In the absence of any prescribed and validated method of analysis under Section 23(1A)(hh) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as "the 1954 Act", could a prosecution have been launched against the Appellants based on a report submitted by the Public Analyst using the method of the Directorate General of Health Services (D.G.H.S.) (2) Could a prosecution have been launched against the Appellants in the absence of any validated method of analysis to ascertain the percentage of pesticide residue present in a Carbonated beverage, which renders the report of the Public Analyst unreliable, particularly when it does not indicate that such percentage of the pesticide residue is injurious to health and, therefore, adulterated within the meaning of Section 2(ia)(h) of the aforesaid Act (3) What is the effect of non-specification of the level of tolerance in respect of the presence of pesticide residue in Sweetened Carbonated Water in the Table appended to Rule 65(2) of the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as "the 1955 Rules" and (4) What is the liability of the Directors of a company which is said to have committed defaults within the meaning of Section 17 of the 1954 Act, in the light of the decision of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr., (2005) 8 SCC 89, when they were neither in charge of nor responsible for the conduct of the business of the Company
(2.) On 25th October, 2006, the Food Inspector of Mobile Vigilance, Kozhikode, inspected the premises of Star Marketing, Ashoka Puram, Door No. 5/1589, under Kozhikode Municipal Corporation and purchased three two-litre bottles of Pepsi on payment of the price. The said bottles were sealed and subsequently, on 26th October, 2006, one part of the sample was forwarded to the Public Analyst, Kozhikode. On 28th November, 2006, the Public Analyst submitted his report stating that upon analysis of the sample of Pepsi Sweetened Carbonated Water, using the Directorate General of Health Services (DGHS) method, pesticide residue-Carbofuran, to the extent of 0.001 mg per litre was detected therein. The said sample was, therefore, adulterated within the meaning of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act.
(3.) Based upon the report of the Public Analyst, the Chief Judicial Magistrate, Kozhikode, took cognizance of the offence and issued process against the Appellants.;