Crl.Rev.Pet.No.983 of 2001 (Victor v. Food Inspector, Angamaly Circle, Angamaly and State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942** ## **Crl.Rev.Pet.No.983 OF 2001** **CRA 39/1996 OF ADDITIONAL SESSIONS COURT, NORTH PARAVUR** **CC 84/1992 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALUVA** ## **REVISION PETITIONER/S:** **C.A.VICTOR, S/O ANTONY, CHIRAKKAMANAVALAN HOUSE, AIROOR, KUNNUKARA, ALWAYE** **BY ADVS. SRI.T.M.ABDUL LATHEEF SRI.SANTHOSH SUBRAMANIAN SRI.SHEJI P.ABRAHAM SRI.SHERRY J. THOMAS** ## **RESPONDENT/S:** - **1 FOOD INSPECTOR, ANGAMALY CIRCLE, ANGAMALY** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SMT.M.N.MAYA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-08-2020, THE COURT ON 08-09-2020 PASSED THE FOLLOWING:** Crl.R.P. No.983/2001 ..2.. ## **ORDER** Dated this the 8[th] day of September, 2020 The revision petitioner is the accused in CC No.84/1992 on the file of the Judicial First Class Magistrate Court-I, Aluva. The 1[st] respondent filed a complaint before the learned magistrate alleging offences punishable under Sections 2(ia)(a)(b)(c)(j) (l), 7(i) and (v) r/w Section 16(1-A)(i) and Section 7(iii) and (v) r/w Section 16(1)(a) (ii) of the Prevention of Food Adulteration Act (hereinafter referred to as “PFA Act”) and Rules 32 and 50 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as “PFA Rules”). 2. By judgment dated 09.08.1996, the learned magistrate convicted and sentenced the accused Crl.R.P. No.983/2001 **==> picture [31 x 8] intentionally omitted <==** as follows; “In the result, the accused is sentenced to undergo Simple Imprisonment for one year and to pay a fine of Rs.1000/- under sec.2(ia)(a)(j) (l) and Sec.7(i) and (v) r/w Sec.16(1-A)(i) of the P.F.A. Act and in default of payment of fine to undergo Simple Imprisonment for one month, to pay a fine of Rs.500/- under Sec.2(ix)(k) and Sec.(ii) read with Sec.16(1) (a)(i) of the P.F.A. Act and Rule 32 of the P.F.A. Rules and in default of payment of fine to undergo Simple Imprisonment for 15 days and to pay a fine of Rs.250/- under Sec.7(iii) and (v) read with Sec.16(1)(a)(ii) of the P.F.A. Act and Rule 50 of the P.F.A. Rules and in default of payment of fine to undergo Simple Imprisonment for 10 days.” 3. Challenging the conviction and sentence, the accused preferred Crl. Appeal No.279/1996 before the Sessions Court, Ernakulam. The same was made over to the Additional Sessions Judge, North Paravur, wherein the case was renumbered as Crl.Appeal No.39/1996. By the judgment dated 11.07.2001, the learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the learned magistrate. Feeling aggrieved, the accused is before this Court in revision. 4. The case of the complainant is that on Crl.R.P. No.983/2001 **==> picture [31 x 8] intentionally omitted <==** 22.11.1991 at 2 pm, he inspected the bakery of the accused functioning in Door No.VIII/458 in Parakkadavu Panchayath under the name and style, “Gulf Bakery”, and purchased 600 gm of “green peas fry” and sampled it in accordance with law. One part of the sample was sent to the Public Analyst. After analysis, the Public Analyst reported that the sample is adulterated. It is further alleged that the green peas fry packets do not contain the labels under the PFA Act and the accused has no valid licence for the sale of green peas fry. 5. Heard Sri.Santhosh Subramanian, the learned counsel for the revision petitioner, and Smt.M.N.Maya, the learned Public Prosecutor for the State. 6. Ext.P11 is the report of the Public Analyst. It is on the basis of Ext.P11 report, PW1 filed the complaint before the court. Ext.P11 Crl.R.P. No.983/2001 **==> picture [31 x 8] intentionally omitted <==** report dated 03.01.1992 by the Public Analyst would show that the sample of green peas fry contains 22.7% of insect damaged grains and is therefore, adulterated. 7. Subsequently, the second part of the sample was forwarded to the Central Food Laboratory. After analysis, the Central Food Laboratory forwarded Ext.P12 report stating that the sample contains total dye content more than 200 mg/kg and does not conform to Rule 30 of the PFA Rules, 1955. 8. It is settled principle of law that without getting a report of the Public Analyst, the Food Inspector cannot lodge a complaint alleging that there is misbranding. In **Johnson** v. **State of Kerala** [2009 (4) KLT 202], this Court held that when the sample was collected by the Food Inspector in exercise of the power under Section 10 of the PFA Act following the procedure provided under Section 11 of the PFA Crl.R.P. No.983/2001 **==> picture [31 x 8] intentionally omitted <==** Act, it is mandatory that one of the three samples should be sent to the Public Analyst for examination and the two remaining samples are to be forwarded to the Local Health Authority. Prosecution for the offence under the PFA Act, in such circumstance, could only be lodged after getting the report of the Public Analyst as provided under Section 13 of the PFA Act. 9. In **Pepsico India Holdings Pvt. Ltd.** v. **Food Inspector** [2010 (4) KHC 767] and **Rasheed NK** v. **Food Inspector, Thalassery and Another** (2016 (2) KHC 679], it was held that all the prosecutions under the PFA Act could be stifled by raising a contention that the “laboratory” or “the methods of analysis” was not defined, owing to the failure to define “laboratory” in terms of Section 23(1A)(ee) of the PFA Act, except in cases, where the article in food was lifted and sent for Crl.R.P. No.983/2001 **==> picture [31 x 8] intentionally omitted <==** analysis prior to the introduction of the provisions under Section 23(1A)(ee) of the PFA Act, i.e., with effect from 01.04.1976 and in cases such as the accused sold the food items without obtaining requisite licence or the duties of the Food Inspector was obstructed during inspection etc. It goes without saying that wherever an analysis by the Public Analyst from a laboratory is conducted, it must be one conducted from a laboratory defined under Section 23 (1A)(ee) of the PFA Act, 1956. Since no such laboratories were defined till the repealing of the PFA Act, the complaint filed by the Food Inspector relying on Ext.P11 report issued by an incompetent authority, which is not defined in terms of the PFA Act, is illegal. In the light of the decision in Pepsico's case ( _supra_ ), the learned magistrate could not have taken cognizance of the complaint based on Ext.P11 Crl.R.P. No.983/2001 **==> picture [31 x 8] intentionally omitted <==** report. Hence, Ext.P12 report is insignificant to decide the case. The complaint filed by the Food Inspector is against the scheme of the PFA Act and is, thus, illegal. However, the conviction and sentence imposed against the accused for the violation of PFA Rules are sustained, for which the trial court awarded a fine of Rs.250/- and in default of payment of fine to undergo simple imprisonment for 10 days under Section 7(iii) and (v) r/w Section 16(1)(a)(ii) under the PFA Act and Rule 50 of the PFA Rules. In the result, this Crl.R.P. stands allowed in part. The revision petitioner/the accused is found not guilty of the offences punishable under Sections 2(ia)(a)(j)(l) and 7(i) and (v) r/w Section 16(1-A)(i), Section 2(ix)(k) and Section (ii) r/w Section 16(1)(a)(i) of the PFA Act and Rule 32 of the PFA Rules and he is acquitted thereunder. However, the conviction Crl.R.P. No.983/2001 **==> picture [31 x 8] intentionally omitted <==** and sentence of fine imposed against the revision petitioner/accused for the offence punishable under Section 7(iii) and (v) r/w Section 16(1)(a)(ii) of the PFA Act r/w Rule 50 of the PFA Rules is sustained. ## **Sd/-** **N.ANIL KUMAR** **JUDGE** bka/-