High Court of KeralaSingle Judge2016-01-07Partly allowed; set aside conviction under 16(1...

A. P. Ibrahim v. Food Inspector, Mobile Vigilance Squad, Kozhikode & State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 438 of 2006

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2016-01-07
Court Decision / Holding: Revision petition stands allowed in part: setting aside the conviction and sentence under Section 16(1)(a)(i) read with Section 2(ia)(m); confirming the conviction and sentence under Sections 2(ia)(m) and 16(1)(a)(ii) read with Rule 50; petitioner to surrender before the court below on 1.3.2016 to suffer the sentence.
Final Disposition: Partly allowed; set aside conviction under 16(1)(a)(i) read with 2(ia)(m); uphold conviction under 2(ia)(m) and 16(1)(a)(ii); surrender on 01-03-2016.

Parties to the Case

Appellants / Petitioners

A. P. Ibrahim

Respondents

The Food Inspector, Mobile Vigilance Squad, Kozhikode
State of Kerala rep. by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. G. Rajendran
• Advocate for the applicant

Counsels for Respondents

• Public Prosecutor, Shri R. Githesh

Case Synopsis & Summary

This is a Kerala High Court criminal revision petition filed by the second accused (A. P. Ibrahim) challenging the concurrent conviction and sentence under the Prevention of Food Adulteration Act (PFA Act) and related Rules. The prosecution case, based on a 1.10.1996 seizure at a hotel operated by the second accused, involved the sale of 900 ml of curd which allegedly did not conform to standards and was adulterated due to added water and insufficient milk fat. A sample was sent for analysis (Ext. P8) to a Public Analyst, who concluded adulteration; the second accused allegedly operated without a valid PFA license. At trial, evidence from PW1–PW4 and Exts. P1–P26 was adduced. The defense argued that Ext. P8 is inadmissible because no notified laboratory and no validated testing method exist as required by Section 23(1-A)(ee) and (hh) of the PFA Act, relying on Pepsico India Holdings (P) Ltd. v. Food Inspector (2011) 1 SCC 176, and subsequently Gopalakrishnan v. Food Inspector (2013) 3 KLT 455. The High Court ultimately held that Ext. P8 cannot be relied upon to prove adulteration due to the Pepsico principle, but upheld the conviction under 2(ia)(m) and 16(1)(ii) for sale of adulterated article without license, while setting aside the related conviction under 16(1)(a)(i). The revision petition was partly allowed with direction to surrender on 1.3.2016 to suffer the sentence.

Provisions of Law Cited

Section 2(ia)(m) of Prevention of Food Adulteration Act, 1954Section 16(1)(a)(ii) of Prevention of Food Adulteration Act, 1954Section 16(1)(a)(i) read with Section 2(ia)(m) of Prevention of Food Adulteration Act, 1954Rule 50 of Prevention of Food Adulteration RulesSection 23(1-A)(ee) and (hh) of the Prevention of Food Adulteration Act, 1954

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the revision petitioner submitted that Ext. P8 cannot form the basis of a conviction because the laboratory analysis was not conducted in a notified laboratory and no validated method of analysis was prescribed as per Section 23(1-A)(ee) and (hh) of the PFA Act. Relying on Pepsico India Holdings (P) Ltd v. Food Inspector, 2011, the petitioner argued that such reports are inadmissible in evidence and cannot sustain a conviction; further, the absence of a valid PFA license at the time of sale also requires consideration, but the lack of proper testing undermines the basis of adulteration. The counsel urged the court to acquit on the basis of the illegitimacy of Ext. P8 and to reexamine the remaining evidence to determine if the conviction under Section 2(ia)(m) and 16(1)(ii) stands independently of Ext. P8.

Contentions of Respondents

The respondents contended that Ext. P8, despite the lack of a defined laboratory notification, still points to adulteration of the sampled curd, and that the accused operated without a valid license under PFA Rules. They argued the lower courts correctly convicted under Sections 2(ia)(m) and 16(1)(ii), as the sale of adulterated curd without license constitutes an offence, and that Ext. P8 corroborates the adulteration claim. They maintained that even if Ext. P8 is not fully admissible, the overall evidence shows sale of adulterated article and license violation, which justifies the conviction and sentence under the applicable provisions.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Pepsico India Holdings (P) Ltd v. Food Inspector	2011 (1) SCC 176	Positive	Apex Court held that where laboratories are not notified and no validated analysis method is prescribed, such reports are not admissible; the judgment aligns with this principle to exonerate Ext. P8-based conviction.
Gopalakrishnan v. Food Inspector	2013 (3) KLT 455	Positive	This Court’s earlier decision relied on Pepsico to hold that Public Analyst's report was not admissible; Division Bench affirmed, reinforcing the same principle referenced by the current judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937 Crl.Rev.Pet.No. 438 of 2006 ( ) -------------------------------- CRL.A 518/2001 of ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOZHIKODE ST 254/1997 of J.M.F.C.-I,THAMARASSERY REVISION PETITIONER(S): -------------------------------------- A.P. IBRAHIM, S/O. ABOOBACKER, `FATHIMAS', KURICHIYIL P.O., THALASSERY KANNUR DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/COMPLAINANT & STATE:: ---------------------------------------------------------------------- 1. THE FOOD INSPECTOR, MOBILE VIGILANCE SQUAD, KOZHIKODE. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## Crl.R.P. No.438 of 2006 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of January 2016 ## O R D E R The second accused in S.T. No.254 of 1997 on the files of the Court of the Judicial Magistrate of First Class-1, Thamarassery has filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 2(ia)(m) and 16(1)(a) (ii) of the Prevention of Food Adulteration Act read with Rule 50 of the Prevention of Food Adulteration Rules and Section 16(1)(a)(i) read with Section 2(ia)(m) of Prevention of Food Adulteration Act. 2. Heard. Crl.R.P.438/2006 : 2 : 3. The prosecution allegation can be briefly stated thus:- On 1.10.1996 at 11.30 a.m., the Food Inspector, Kozhikode, purchased 900 m.l. of curd from the hotel belonging to the second accused. First accused was in charge of the said hotel. After sampling as per rules, one of the samples was sent for analysis to the Public Analyst. The Public Analyst filed Ext. P8 report stating that the sample did not conform to the standards of curd made out of mixed milk. It was further reported that the sample contained not less than 20% of added water and it was also deficient in milk fat content to an extent of not less than 4% and therefore the same as adulterated. It was further alleged that the second accused, who was Crl.R.P.438/2006 : 3 : conducting the hotel, was not having the PFA license. 4. Before the trial Court, PW1 to PW4 were examined and Exts.P1 to P26 were marked for the prosecution. No evidence was adduced on the side of the revision petitioner. 5. The learned counsel for the revision petitioner has submitted that since no laboratory for the analysis of the food item was defined and no validated method of analysis was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the PFA Act, Ext. P8 cannot be acted upon to hold that the food item purchased by the Food Inspector was adulterated. The learned counsel for the revision petitioner relied on the decision of the Apex Court in Pepsico India Holdings (P) Ltd. v. Food Inspector ## Crl.R.P.438/2006 : 4 : [(2011) 1 SCC 176] to buttress his argument. 6. In this case, admittedly, the laboratory for the analysis of food item was not defined and no validated method of analysis of the food item was specified as mandated under Section 23 (1-A) (ee) and (hh) of the P.F.A. Act. Therefore, Ext. P8 report of analysis cannot be acted upon to hold that the food item purchased in this case was adulterated in view of the decision of the Apex court in Pepsico India Holdings (supra). It was held by the Supreme Court in _Pepsico India Holdings (supra)_ that since the Laboratories were not notified and the tests conducted by such laboratories were not admissible in evidence, no prosecution could be based on such report and the accused was entitled to get acquittal. In the Crl.R.P.438/2006 : 5 : decision of this Court in Gopalakrishnan v. Food Inspector [2013 (3) KLT 455], the court relied on the decision of the Supreme Court in Pepsico (supra) and found that the Public Analyst's report was not admissible in evidence and accordingly, the Court acquitted the accused. The matter was referred to a Division Bench and the Division Bench also affirmed the said decision, submitted by the learned counsel for the petitioner and the learned Public Prosecutor. Even otherwise, in view of the decision in Pepsico (supra), the conviction in this case cannot be sustained under Section 16(1)(a)(i) read with Section 2(ia) (m) of the Prevention of Food Adulteration Act as no laboratory was notified and no validated method of analysis was specified as mandated under Section 23 (1-A) Crl.R.P.438/2006 : 6 : (ee) and (hh) of the Prevention of Food Adulteration Act, 1954. However, the evidence on record would clearly show that the revision petitioner sold the food article without having a valid licence under the Rules. Therefore, the courts below concurrently found that the revision petitioner committed the offence under Sections 2(ia)(m) and 16(1)(a)(ii) of the Prevention of Food Adulteration Act read with Rule 50 of the Prevention of Food Adulteration Rules. Having gone through the relevant inputs, I find no reason to interfere with the conviction passed by the courts below under Sections 2(ia)(m) and 16(1)(a)(ii) of the Prevention of Food Adulteration Act read with Rule 50 of the Prevention of Food Adulteration Rules. The sentence awarded by the courts below for the said offence also does Crl.R.P.438/2006 : 7 : not warrant any interference by this Court. In the result, this revision petition stands allowed in part, setting aside the conviction and sentence passed by the courts below under Section 16(1)(a)(i) read with Section 2(ia)(m) of the Prevention of Food Adulteration Act and confirming the conviction and sentence passed by the courts below under Sections 2(ia)(m) and 16(1)(a)(ii) of the Prevention of Food Adulteration Act read with Rule 50 of the Prevention of Food Adulteration Rules . The revision petitioner shall surrender before the court below on 1.3.2016 to suffer the sentence. ## **Sd/-** ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/..11.1..2016 // True Copy //_ _PA to Judge_