D. Mohanachandran v. State of Kerala (Crl.R.P. No. 2242 of 2008, High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 CRL.REV.PET NO. 2242 OF 2008** **AGAINST THE ORDER/JUDGMENTCRA 72/2004 OF ADDITIONAL DISTRICT COURT (ADHOC) III, TRIVANDRUM CC 24/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **-I,NEDUMANGAD** ## **REVISION PETITIONER/APPELLANT/1ST ACCUSED:** D.MOHANACHANDRAN P.A.K.STORE, PARANDODE, SREE BHAVAN,, KEEZHPALOOR, VINOBHANIKETHAN P.O. BY ADV SRI.T.A.UNNIKRISHNAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SRI G SUDHEER-PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. R P. No. 2242 of 2008 ..2.. ## **O R D E R** This revision petition is directed against the judgment dated 24/03/2008 in Crl.Appeal No.72/2004 on the file of the Additional Sessions Court (Fast Track III), Thiruvananthapuram (for short, “the appellate court”) confirming the judgment dated 21/01/2004 in CC No.24/1996 on the file of the Judicial First Class Magistrate Court-I, Nedumangad (for short, “the trial court”). 2. The revision petitioner is the 1[st] accused. He faced trial along with the 2[nd] accused for the offences punishable under Section 16(1-A)(i) read with Sections 2(ia)(f) and Section 7(i) (iii) of the Prevention of Food Adulteration Act, 1954 (for short, “the PFA Act”) and Rule 50(i) & Rule 10 of Prevention of Food Adulteration Rules, 1955 (for short, “the PFA Rules”). 3. The case of the prosecution in short is that on 20/11/1995 at about 1.00 p.m, the Food Inspector of Tholikkode Crl. R P. No. 2242 of 2008 **==> picture [19 x 9] intentionally omitted <==** Panchayath, Nedumangad inspected the shop No. T.P. 8/669 of Parandode junction in Tholikode Panchayat allegedly belongs to the 2[nd] accused and purchased 750 grams of Vadaparipppu kept in the sack from the 1[st] accused who was found conducting sale there. He prepared samples in accordance with law and sent the same for examination by public analyst. The report of the public analyst indicated that the sample did not confirm with the standard prescribed for food grains under the PFA Rules and it contains weavilled grains and uric acid content to the extent of not less than 120.00 m.l. per kilogram and, hence, unfit for human consumption. On receipt of the report of the public analyst that the sample was adulterated, prosecution was launched against the 1[st] and 2[nd] accused. 4. The accused appeared at the trial court. The particulars of the offences were read over and explained to the accused. They pleaded not guilty. After hearing both sides, charge was framed by the trial court against the accused. The Crl. R P. No. 2242 of 2008 **==> picture [19 x 9] intentionally omitted <==** charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW5 were examined and Exts.P1 to P21 were marked. On the side of the defence Ext. D1 was marked. After trial, the trial court found the 1[st] accused guilty under Section 16(1-A) read with Section 2(ia)(f) read with Section 7(i) of the PFA Act and APP-A.18.06 of PFA Rules and he was convicted and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.2,000/-, in default to suffer simple imprisonment for one month. The accused No.2 was found not guilty of the offences alleged against him and he was acquitted. The appellate court dismissed the appeal. Aggrieved by the conviction and sentence of both the courts below, the 1[st] accused preferred this revision petition. 5. I have heard Sri. T A Unnikrishnan, the learned counsel for the revision petitioner and Sri. G Sudheer, the learned Public Prosecutor. 6. Assailing the impugned judgment, the learned Crl. R P. No. 2242 of 2008 **==> picture [19 x 9] intentionally omitted <==** counsel for the revision petitioners mainly argued that in the absence of any prescribed or validated method of analysis under Section 23(1A)(ee) and (hh) of the PFA Act, Ext.P10 report of the public analyst could not be relied on and the conviction based on the said report is unsustainable. The learned counsel relied on the decision of the Apex Court in _**Pepsico India Holdings (P) Ltd. v. Food Inspector**_ [(2011) 1 SCC 176], the judgment of the learned Single Judge of this Court in _**Gopalakrishnan v. Food Inspector**_ (2013 (3) KLT 455) and the judgment of the Division Bench of this court in _**Rasheed N.K. v. Food Inspector, Thalasserry and Another**_ (2016 (2) KHC 679). According to the learned counsel, no rules have been framed at the relevant time under Section 23(1A)(ee) and (hh) of the Act by the Central Government defining the methods of analysis for conducting the test and also defining the laboratory where the sample of article of food or adulterants could be analysed by the public analyst under the Act. Ext.P10 report submitted by the Crl. R P. No. 2242 of 2008 **==> picture [19 x 9] intentionally omitted <==** public analyst, following whatever method they choose cannot be relied on to sustain the conviction against the accused under Section 16(1-A)(i) read with Sections 2 (ia)(f) and 7(i) of the PFA Act, added the learned counsel. 7. In _**Pepsico**_ (supra), the Apex Court has held that it is mandatory for the Central Government to prescribe laboratories under Section 23(1-A)(ee) for testing of food samples/adulterants, and to prescribe methods of analysis under Section 23(1-A)(hh). The learned Single Judge of this Court in _**Gopalakrishnan**_ (supra) following _**Pepsico**_ (supra) held that since laboratories are not defined for analysis by the public analyst and the methods of analysis were not then defined, the report of the public analyst cannot be relied on to sustain the conviction. An argument was raised before the Court that the dictum laid down in _**Pepsico's case**_ (supra) was confined to the question regarding the detection of the percentage of carbofuran in the sample of pepsi involved in the said offence. Negativing Crl. R P. No. 2242 of 2008 ..7.. the said contention, it was held that the dictum laid down in the said case is applicable to all the cases where food articles were analysed by the public analyst in the absence of defined laboratories where samples of food adulterants could be analysed by the public analyst as contemplated under Section 23(1A)(ee) and in the absence of a definite method of analysis as contemplated under Section 23(1-A)(hh) of the PFA Act. Again the Division Bench of this Court in _**Rasheed N.K.**_ (supra), answering a reference held that, wherever the 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 the prosecution under the PFA Act, the report of the analyst in relation to that sample must be one conducted in a laboratory defined under Section 23(1A)(ee) and since no such laboratory was defined till the repealing of the PFA Act, wherever an analysis from a laboratory was inevitable for making a report regarding the item concerned as adulterated, Crl. R P. No. 2242 of 2008 **==> picture [19 x 9] intentionally omitted <==** there cannot be any successful prosecution in the absence of such a report. It was further held that if the analysis was conducted by the public analyst under the PFA Act in a laboratory not defined in terms of Section 23(1A)(ee), in the light of _**Pepsico's case**_ (supra), no prosecution will lie based on a report made after such an analysis. 8. Coming to the facts of the present case, in Ext.P10, the method of analysis as per which the public analyst has found sample adulterated has not been stated. Hence, I am of the view the dictum laid down by the Apex court in _**Pepsico's case**_ (supra), followed by the learned single Judge of this court in _**Gopalakrishnan**_ (supra) and the Division Bench of this Court in _**Rasheed**_ (supra) are squarely applicable to the facts of the case inasmuch as the laboratories are not defined for the analysis by the public analyst and the methods of analysis were not thus defined. Thus, the argument of the learned counsel for the revision petitioner that Ext.P10 cannot be relied on is only to be Crl. R P. No. 2242 of 2008 **==> picture [19 x 9] intentionally omitted <==** accepted. Hence, the impugned judgments convicting and sentencing the accused under Section 16(1-A)(i) read with Section 2(ia)(f) and Section 7(i) of the PFA Act and AppA.18.06 of the PFA Rules cannot be sustained and accordingly it is hereby set aside. The appellant/1[st] accused is acquitted of all the offences charged against him. The Crl.R.P. is allowed as above. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** RMV