1. Leave granted.

2. Heard the learned counsel for the parties.

3. The appellant has filed this appeal, by special leave, against the judgment of the Kerala High Court rejecting petitions filed by the appellants for quashing the proceedings in ST No. 2412 of 1999, pending in the Court of the Judicial Magistrate, First Class, Alwaye.

4. The proceedings, it appears, were initiated on the complaint filed by the Food Inspector, Edapally Circle, Ernakulam District, under Sections 2(ia)(a) and (m), 7(1) and 16(1)(a)(i) and S.17(1) of the Prevention of Food Adulteration Act, 1954 read with R.5 of the Prevention of Food Adulteration Rules. The facts which give rise to this case are that on 18-12-1998, samples were collected from a grocery shop "A. K. Stores" in Thrikkakara Panchayat. After issuing Form VI and going through the formalities, two packets which have been described in the mahazar as that of skimmed milk powder (Milkana) were procured by the Food Inspector for analysis. The recovery memo further indicates the description of the articles as per declaration on the packing as "Milkana Anik Instant Dairy Whitener: Ingredients: Partly skimmed milk powder, sucrose and permitted emulsifiers, manufactured by Hindustan Lever Ltd." The said sample was sent for chemical examination. The report of the Chemical Examiner dated 22-1-1999, is on the record. The Public Analyst opined that the sample does not conform to the standard prescribed for "skimmed milk powder" under the Prevention of Food Adulteration Rules, hence it was found to be adulterated.

5. On behalf of the respondents it was given out on 28-4-2003 that no counter affidavit was proposed to be filed and the case was to be argued on the basis of the available papers.

6. The learned counsel for the appellant submits that the prosecution of the appellant on the basis of the sample taken and analysed and found to be not conforming to the standards prescribed for skimmed milk powder, is not legally maintainable for the reason that the article, sample of which has been taken, is not skimmed milk powder and for that purpose he has drawn our attention to the packing of the articles which indicates it as instant dairy whitener. It is submitted that it is neither fully skimmed milk powder nor is it given out to be so. The article contains only partly skimmed milk powder hence it cannot be required to conform to the standards laid down for skimmed milk powder. A perusal of the report of the Public Analyst also indicates that the standards with which he has compared the contents of the samples are skimmed milk powder. The mahazar as well as the packing leave no room to doubt that the article which has been taken into possession and analysed is not skimmed milk powder but it is instant dairy whitener, containing only partly skimmed milk powder with other ingredients. Obviously, therefore, it is not supposed to conform with the standards laid for skimmed milk powder. It is submitted that the article falls in the category of proprietary foods and in that connection our attention was drawn to R.37A(2)(b) of the Prevention of Food Adulteration Rules, which is as under:

"37A. (2)(b) Proprietary food means a food which has not been standardised under the Prevention of Food Adulteration Rules, 1955."

7. Clause (b) of sub-rule (2) of R.37A clearly indicates that proprietary food means food which has not been standardised. The learned counsel for the respondents, however, submits that in view of sub-rule (1) the appellant was supposed to have approval of such articles of food from the Government of India. We, however, find no merit in the submission of the learned counsel for the respondents, since it applies only to infant dairy milk products or the infant dairy milk food, the sample which has been taken and has been analysed is neither infant milk substitute/infant food nor it is skimmed milk powder, an article for which standards have been prescribed under the Prevention of Food Adulteration Rules. Any prosecution in regard to an article for which no standards have been laid, applying the standards for other articles would not be sustainable.

8. The position as indicated above is clear on the face of it, on the basis of the documents of the prosecution itself. It requires no further enquiry much less factual in nature. In the above circumstances we find that continuation of the prosecution proceedings is not valid. The appeal is, therefore, allowed and the proceedings in Case No. ST No. 2412 of 1999, pending against the appellant in the Court of the Judicial Magistrate, First Class, Alwaye, are quashed.