A. Chowdhuri and A. Batra v. Food Inspector, Mavelikkara Circle, State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 163 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT CC 444/2010 OF JUDICIAL MAGISTRATE OF ``` ## **`FIRST CLASS -I, MAVELIKKARA`** ## **`REVISION PETITIONER/S:`** - `1 A.CHOWDHURI,FORMER CHAIRMAN AND MANAGING DIRECTOR,J.THOMAS & COMPANY PVT.LTD.,NILHAT HOUSE,11,R.N.MUKHERJEE ROAD,KOLKATA-700001.` - `2 A.BATRA,MANAGING DIRECTOR,J.THOMAS & COMPANY PVT.LTD,NILHAT HOUSE,11,R.N.MUKHERJEE ROAD,KOLKATA700001. BY ADVS. SRI.SAJI VARGHESE SMT.MARIAM MATHAI` ## **`RESPONDENT/S:`** - `1 THE FOOD INSPECTOR,MAVELIKKARA CIRCLE MAVELIKKARA.` - `2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR. 3 J.THOMAS AND COMPANY PVT.LTD. BRISTOW ROAD, WIILINGTON ISLAND, KOCHI-682 003 (IMPLEADED AS ADDL.R3 AS PER ORDER DATED 12.04.2012 IN CRL.MA.2836/12 IN CRL.RP.NO.163/12)` - `4 VIJAY SANKAR,E-3B, WIILINGTON ENCLAVE, THEVARA, KOCHI682 013 (IMPLEADED AS ADDL.R4 AS PER ORDER DATED 12.04.2012 IN CRL.MA.2836/12 IN CRL.RP.NO.163/12). SMT.SEETHA.S, PUBLIC PROSECUTOR – R1 AND R2` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.R.P No.163 of 2012 ## **C.S DIAS,J.** ## **--------------------------Crl.R.P No.163 of 2012** **----------------------------Dated this the 1[st] day of November, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order dated 9.10.2011 in CC No.444/2010 of the Court of the Judicial First Class Magistrate-I, Mavelikkara, dismissing the discharge application filed by the revision petitioners. The revision petitioners were the accused 7 and 8, the first respondent was the complainant and the respondents 3 and 4 were the accused 9 and 10 before the court below. 2. The revision petitioners’ case is that, they are the accused 7 and 8 in the above complaint, which was filed by the first respondent alleging the accused to have committed the offences under Sec. 16(1) (a) (ii) read with Sec.2(ia) (b) and Sec.7(i) of the Prevention of Food Adulteration Act,1954 and Rule 5 Appendix B item No.A 14 3 Crl.R.P No.163 of 2012 of the Prevention of Food Adulteration Rules,1955 (in short, Act and Rules). The first respondent had alleged that, on 9.6.2010, he had inspected a shop named ‘KCS Traders’ owned by the first accused and purchased 400 grams of tea. On analyzing one of the samples, it was reported by the Public Analyst that the article was adulterated due to iron fillings. Therefore, the accused have committed the above offences. 3. The revision petitioners had filed the discharge application on the grounds that the first revision petitioner had retired as the Chairman and Managing Director of the tenth accused Company on 31.3.2010, which is prior to the date of the offences, and the second revision petitioner was not responsible and in charge of the affairs of the tenth accused Company at Kochi. 4. The learned Magistrate, by the impugned order, dismissed the application. 5. It is questioning the legality and correctness of the said order; the present revision petition is filed. 4 Crl.R.P No.163 of 2012 6. Heard; Sri. Saji Varghese, the learned counsel appearing for the revision petitioners and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondents 1 and 2. 7. The learned Counsel appearing for the revision petitioner argued that in addition to the grounds that have been raised in the revision petition, in view of the law laid down by the Honourable Supreme Court in _**Pepsico India Holdings Pvt. Ltd v. Food Inspector and Another**_ [2010 (4) KHC 767] and the Division Bench of this Court in _**Rasheed v. Food Inspector**_ [2016 (2) KLT 390], that if the sample is analysed in a laboratory not recognised by the Central Government as provided under Section 23(1-A) (ee) of the Act, the entire prosecution has to crumble and the revision petitioners have to be acquitted. Therefore, the impugned order may be set aside and the revision petitioners may be discharged as prayed for before the learned Magistrate. 5 Crl.R.P No.163 of 2012 8. The learned Public Prosecutor on the contrary contended that the decision in _**Pepsico India Holdings Pvt. Ltd.**_ (supra) needs to be reconsidered, particularly because Section 8 of the Act enables the Central Government and the State Government to appoint a Public Analyst for the local areas as assigned by the Central Government and State Government. In the State of Kerala, Public Analysts have been appointed invoking the above provision. Therefore, the decision in _**Pepsico India Holdings Pvt. Ltd.**_ (supra) has no application to the case on hand. Hence, the revision petition may be dismissed. 9. Is there any illegality, impropriety or irregularity in the impugned order. 10. The Hon’ble Supreme Court rendered the judgment in _**Pepsico India Holdings Private Ltd.**_ (supra) on 18.11.2010. Subsequent to the pronouncement of the 6 Crl.R.P No.163 of 2012 judgment, there were several cases filed before this Court to quash the proceedings initiated under the Act. 11. There was cleavage of opinion and divergent views taken by three learned Single Judges of this Court in interpreting the _ratio decidendi_ in _**Pepsico India Holdings Private Ltd**_ **.** (supra). 12. Due to cleavage of opinion in interpreting the above judgment, a bunch of cases were referred to a Division Bench of this Court for an authoritative pronouncement. 13. Accordingly, in _**Rasheed v. Food Inspector**_ (supra), a Division Bench of this Court, on a threadbare analysis of the law laid down in _**Pepsico India Holdings Private Ltd.**_ (supra), has answered the reference in the following manner: “18. Bearing in mind the fact that the Hon'ble Apex Court in Pepsico's case (supra) held that the provisions under S.23(1A)(ee) and (hh) are not directory and that this Court has erred in holding that they are only enabling provisions we will proceed further to answer the referred questions. For answering the terms of reference a broad understanding of the said declaration is necessary. **When once the Hon'ble Apex Court held that the said provisions are not directory and the failure to adhere** 7 Crl.R.P No.163 of 2012 **to the provisions cannot be said to be not fatal to the prosecution it has to be understood and applied in all cases where a public analyst was to carry out an analysis and to give a report to form the basis for launching the prosecution. Thus, evidently, for that purpose the report should be one made after conducting an analysis in a laboratory defined under S. 23(1A)(ee).** It is to be noted that after the decision in Pepsico's case (supra) by the Hon'ble Apex Court a notification was followed whereby Rule in relation to S.23(1A)(hh) was framed as R. 4(9) of the PFA Rules. **Thus, in the light of Pepsico's case (supra) in order to be reliable and to be taken the basis for the purpose of launching prosecution a report by a public analyst must be one made after conducting an analysis in a laboratory defined under S.23(1A)(ee) of the Act. In that context the indisputable common case is that till the repealing of 1954 Act no laboratory was defined in terms of the provision under S.23(1A)(ee). If that be so, there could not have been any question of conducting an analysis by a public analyst under the PFA Act in a laboratory defined under S. 23(1A)(ee) of the PFA Act** . In view of the above findings and conclusions we will answer the questions referred. First question referred is as follows: (1) Could all the prosecutions under the Act of 1954 be stifled by raising a contention that the laboratories or methods of analysis were not defined? In the light of what we have held herein before the said it can only be answered in the following manner: **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 S.23(1A)(ee). Since no such** 8 Crl.R.P No.163 of 2012 **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 S. 23(1A)(ee) and the consequential failure to conduct an analysis of the particular sample by the public analyst from such a laboratory.** In other words taking note of the nature of the food article involved and the method to be employed to find out the adulteration if an analysis from a laboratory is not at all required in such circumstances the prosecution cannot be stifled on the ground that the laboratories in terms of provisions under S.23(1A)(ee) were not defined. It cannot be said that all the prosecutions under the 1954 Act should be stifled owing to the failure to define laboratories in terms of S.23(1A)(ee) as there may be cases registered against persons for contravention of the provisions under S.16(1)(c), S.16(1)(d) and S.14A (Prevention of Food Adulteration Act, 1954). So also a case where the Article in food was lifted and sent for analysis prior to the introduction of the provisions under S.23(1A)(ee) viz. 01/04/1976 cannot be stifled as anything previously done could not be invalidated owing to the failure to define laboratory in terms of S.23(1A)(ee) in view of the provisions under S.23(2). **In the context of the term of reference No. 1 it is to be noted that subsequent to Pepsico's case (supra) the method of analysis was, in fact, defined and it was brought into by incorporating R.9(4) in the PFA Rules with effect from 25/03/2008.** 19. The second question referred is as hereunder: (2) Is it proper to hold that since Central Government has not taken steps to effectuate S.23(1A)(ee) and (hh) of the Act of 1954, no prosecution will lie under the Act of 1954 even if it is established 9 Crl.R.P No.163 of 2012 that the standards prescribed for various food items have been flouted? **In respect of items of food articles where, for holding that the standard prescribed for the same was flouted or it was not maintained if an analysis from a laboratory is inevitable in such cases also if the analysis was conducted by the public analyst under the PFA Act in a laboratory not defined in terms of S.23(1A)(ee), in the light of Pepsico's decision, no prosecution will lie based a report made after such an analysis.** The last question referred is follows: (3) Whether the ratio in Pepsico's case (supra) can be applied to all cases of alleged food adulteration under the Act of 1954 irrespective of the fact whether or not standards have been prescribed for food items? In cases where standard is prescribed or in respect of a food item to say that the said item of food is adulterated and to launch the prosecution, if an analysis from a laboratory by a public analyst is inevitable in such circumstances also the ratio in Pepsico's case (supra) will be applicable. In the light of the answers to the referred questions it has become absolutely unnecessary to go into the question referred herein before based on the decision in Narayana Reddiar's case which was declined to be referred. 20. Having answered the reference as above, we are of the view that the fate of the criminal revision petitions and the Crl MCs depend upon the question whether in respect the item of food involved in individual cases, the sample of which was collected, an analysis from a laboratory is required or not for holding the same as adulterated. **If the answer is in the affirmative necessarily in the absence of a report made after an analysis from a laboratory defined in terms of the provisions under S.23(1A)(ee) there can be no successful prosecution** . We will therefore, consider the individual cases in the aforesaid manner and in the light of the answers to the referred questions. Needless to say that if the answer to the aforesaid 10 Crl.R.P No.163 of 2012 question in respect of a particular case is in the negative there can be no legal impediment in continuing with the prosecution. In view of the fact that till the repealing of the said Act no laboratories were defined in terms of S.23(1A)(ee) all those cases have to be decided based on a consideration as aforesaid.” (emphasis given by me) 14. The exposition of law in _**Rasheed v. Food Inspector**_ (supra), following the declaration in _**Pepsico India Holdings Private Ltd**_ (supra) leaves no room for any further interpretation on the question that, if an allegedly adulterated food sample is not analysed in a laboratory under Section 23(1-A)(ee) of the Act, the same is fatal to the prosecution and the prosecution has to necessarily fail. 15. In the instant case, the prosecution was launched on the allegation that the tea leaf seized from the accused by the first respondent/complainant was found to be adulterated on the basis of the Public Analyst’s report. Admittedly, the sample was not tested in a laboratory 11 Crl.R.P No.163 of 2012 notified by the Central Government under Section 23(1-A) (ee) of the Act. Thus, the ratio decidendi in **Pepsico India** **Holdings Private Ltd and Rasheed vs. Food Inspector** (supra) stands squarely attracted to the case at hand. Therefore, the revision petition is only to be allowed and the impugned order is to be set aside. 16. In the result, - (i) The revision petition is allowed; - (ii) The impugned order is set aside; - (iii) The revision petitioners are discharged as prayed for in the discharge petition. SD/- ## **C.S.DIAS,JUDGE** Sks/1.11.23