Food Inspector Kozhicode Corporation v. Baiju C. and TK Bindu and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2016-02-03
Court Decision / Holding: In the said circumstances, this appeal stands dismissed.
Final Disposition: Appeal dismissed; acquittal of the accused upheld; no conviction recorded for adulteration under PFA Act.

Parties to the Case

Appellants / Petitioners

Food Inspector Kozhicode Corporation Kozhikode

Respondents

Baiju C., S/o. Ravindran Cherai House, Kolthara Po, Calicut
T.K. Bindu, W/o. Aji Prasad Thayyll House, Malapparamba Po, Kozhikode
State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. D. Babu, Senior Counsel, Kozhikode Corporation

Counsels for Respondents

• Sri R. Githesh, Public Prosecutor
• Sri V. V. Surendran (Advocate for Baiju C. & TK Bindu)
• Sri P. A. Harish (Advocate for Baiju C. & TK Bindu)

Case Synopsis & Summary

The appellant-food inspector (Food Inspector, Kozhikode Corporation) challenges the acquittal of Baiju C. and TK Bindu and the State in C.C. No.168/1997 before the Chief Judicial Magistrate, Kozhikode, for alleged adulteration of banana chips under the Prevention of Food Adulteration Act, 1954. The prosecution relied on two laboratory analyses: Ext. P10 from the Public Analyst, which found non-conformity with standard norms, and Ext. P12 from the Central Food Laboratory, which detected tartarazine (a water-soluble coal tar colour) and declared adulteration. The trial court acquitted on the ground of non-compliance with Rule 14 of the PF A Rules, noting lack of evidence that sampling devices and containers were dry and clean, and doubting the safe, dry handling of the sample. The High Court, while acknowledging the absence of explicit proof of dry, clean sampling implements, affirmed that the crucial obstacle to conviction lay in the absence of a notified laboratory and a validated method of analysis as required by Section 23(1-A)(ee) and (hh) of the PF A Act. Relying on Supreme Court precedent (Pepsico India Holdings) and a Kerala decision (Gopalakrishnan), the court held that reports from such non-notified laboratories cannot sustain a conviction. Consequently, there is no basis to convict, and the appeal was dismissed. The final order: the appeal stands dismissed.

Provisions of Law Cited

Prevention of Food Adulteration Act, 1954 – Section 16(1A) read with Section 2(ia)(j) and 7(i)Prevention of Food Adulteration Rules, 1955 – Rules 23 and 29Section 23(1-A)(ee) and (hh) of the PF A ActRule 14 of the PF A Rules

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that Ext.P12 from the Central Food Laboratory demonstrates adulteration (presence of tartarazine) and should form the basis for conviction; reliance was placed on the laboratory reports to prove adulteration, notwithstanding issues raised about Rule 14 sampling and the absence of a notified laboratory.

Contentions of Respondents

The accused contended that no laboratory for analysis was defined and no validated method was prescribed under Section 23(1-A)(ee) and (hh); therefore Ext.P12 is inadmissible as evidence and no conviction could be based on such reports. They also argued noncompliance with sampling protocol (dry, clean containers) undermined PW1's testimony and the trial court’s acquittal was correct.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Pepsico India Holdings (P) Ltd. v. Food Inspector	(2011) 1 SCC 176	Positive	Supreme Court held that where laboratories are not notified and the tests are not admissible in evidence, no prosecution can be based on such reports, guiding the present Court to acquit on this ground.
Gopalakrishnan v. Food Inspector	(2013) 3 KLT 455	Positive	Kerala High Court relied on Pepsico in Gopalakrishnan to hold that the Public Analyst’s report is not admissible when the laboratory is not notified, supporting acquittal.

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 WEDNESDAY, THE 3RD DAY OF FEBRUARY 2016/14TH MAGHA, 1937 CRL.A.No. 406 of 2009 (A) -------------------------- CC 168/1997 of C.J.M.,KOZHIKODE ## APPELLANT/COMPLAINANT ------------------------------------- FOOD INSPECTOR KOZHIKODE CORPORATION KOZHIKODE BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION ## RESPONDENT/ACCUSED & STATE: ---------------------------------------------- 1. BAIJU C., S/O.RAVINDRAN CHERAI HOUSE, KOLTHARA PO CALICUT. 2. T.K.BINDU, W/O.AJI PRASAD THAYYIL HOUSE, MALAPARMBA PO KOZHIKODE 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R3 BY PUBLIC PROSECUTOR, SHRI.R.GITHESH R1 & 2 BY ADV. SRI.V.V.SURENDRAN R1 & 2 BY ADV. SRI.P.A.HARISH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.406 of 2009 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of February 2016 ## JUDGMENT The appellant is the complainant in C.C. No.168 of 1997 on the files of the Chief Judicial Magistrate Court, Kozhikode. The appellant filed a complaint against the accused alleging the offence under Sections 16(1A) read with Section 2(ia)(j) and 7(i) of the Prevention of Food Adulteration Act, 1954 and Rules 23 and 29 of the Prevention of Food Adulteration Rules, 1955. 2. Heard. 3. The prosecution allegation is that on 24.4.1997 at about 3.30 p.m., PW1, the Food Inspector purchased 250 Crl.A.406/2009 : 2 : gram of banana chips from the shop of the first accused. The second accused was the licensee of the said shop. After sampling as per rules, one sample was sent for analysis to the Public Analyst. The Public Analyst filed Ext.P10 report stating that the sample did not conform to the standard prescribed for the food item and therefore, the same was adulterated. On the request of the revision petitioner, another sample was sent for examination to the Central Food Laboratory. Ext.P12 report of the Central Food Laboratory would show that the sample showed the presence of water soluble coaltar colour identified as tartarzine and therefore, it was adulterated. 4 **.** Before the trial court, PW1 to PW4 were examined and Exts.P1 to P17 were marked for the prosecution. No Crl.A.406/2009 **==> picture [30 x 12] intentionally omitted <==** evidence was adduced from the side of the revision petitioner. 5. After evaluating the evidence, the court below acquitted the accused on the reason that there was noncompliance of the provisions of Rule 14 of the P.F.A. Rules. The court below found that there was no evidence apart from the oral evidence of PW1 to show that dry and clean implement for stirring was used in this case. The court below found that the devices used were not proved to be clean and dry. Even though PW1 stated that the intermediary paper and the devices were clean and dry, the said aspect was conspicuously absent in Ext.P5 Mahazar prepared by PW1. In the said circumstances, the court below disbelieved the evidence of PW1 that there was Crl.A.406/2009 : 4 : compliance of provisions of Rule 14 of the P.F.A. Rules. Rule 14 of the P.F.A. Rules provides that the sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. Having gone through the relevant inputs, I do not find any reason to deviate from the finding by the court below that the evidence of PW1 could not be acted upon to hold that the container and devises used in this case for sampling and packing were dry and clean as provided under Rule 14 of P.F.A. Rules. In the said circumstances, the judgment of acquittal passed by the court below does not warrant any interference by this Crl.A.406/2009 : 5 : Court. It is also to be noted that the appellant relied on Ext.P12 Report of Central Food Laboratory to prove that the food item in this case was adulterated. It is true that Ext.P12 certificate shows that the sample showed the presence of tartarzine and was therefore adulterated. 6. The learned counsel for the accused 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. P12 cannot be acted upon to hold that the food item purchased by the Food Inspector was adulterated. The learned counsel for the accused relied on the decision of the Apex Court in Pepsico India Holdings (P) Ltd. v. Food Inspector [(2011) 1 SCC 176] to Crl.A.406/2009 : 6 : buttress his argument. 7. 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 prescribed as mandated under Section 23 (1-A) (ee) and (hh) of the P.F.A. Act. Therefore, Ext. P12 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 decision of Crl.A.406/2009 : 7 : this Court in Gopalakrishnan v. Food Inspector [2013 (3) KLT 455], the court relied on the decision of the Supreme Court in Pepsico India Holdings (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 India Holdings (supra), no conviction is possible in this case as no laboratory was notified and no validated method of analysis was specified as mandated under Section 23 (1-A) (ee) and (hh) of the Prevention of Food Adulteration Act, 1954. Crl.A.406/2009 : 8 : 8. In the said circumstances, even on assuming that the reason stated by the court below to acquit the accused is not correct, there is further hurdle in convicting the accused as there was no laboratory or validated method for analysis as provided under Section 23 (1-A)(ee) and (hh) of the PFA Act. For the said reason, I find no reason to interfere with the judgment of the trial court acquitting the accused. In the result, this appeal stands dismissed. ## **Sd/-** ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/..4.2.2016_ _// True Copy //_ _PA to Judge_