John P. Stephen v. Food Inspector, Muvattupuzha Municipality & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937** **Crl.Rev.Pet.No. 435 of 2007 ( )** **--------------------------------** **Crl.A 195/2006 OF THE ADDITIONAL SESSIONS COURT/SPL. COURT (NDPS ACT CASES), THODUPUZHA** **IN CC 163/2004 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA** **REVISION PETITIONER(S)/APPELLANT/2ND ACCUSED:** **--------------------------------------------** **JOHN P. STEPHEN, S/O. OUSEPH STEPHEN, PULIMOOTTIL HOUSE, THODUPUZHA.** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **----------------------------------------------** **1. FOOD INSPECTOR, MUVATTUPUZHA MUNICIPALITY. (IN CHARGE OF THODUPUZHA MUNICIPALITY.)** **2. STATE OF KERALA, REPRESENTED BY** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-01-2016, ALONG WITH CRRP. 438/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SCL.** ## **B. SUDHEENDRA KUMAR, J.** ## **-------------------------------------** Crl.R.P. Nos. 435 & 438 of 2007 -------------------------------------- Dated this the 27[th] day of January, 2016 ## **ORDER** The accused persons in C.C.No.163 of 2004 on the files of the Court of the Chief Judicial Magistrate, Thodupuzha, have filed these revision petitions challenging the concurrent finding of conviction and sentence passed by the courts below under Sec. 16 (1-A) r/w Sec. 7(i) and 2 (ia) (j) of the Prevention of Food Adulteration Act, 1954 r/w Rules 29 and 32 of the Prevention of Food Adulteration Rules, 1955. 2. Heard. 3. The prosecution allegation can be briefly stated thus:- On 24.2.2000 at about 2.30 p.m., PW1, the Food Inspector purchased 600 gram of banana chips from the first accused. The second accused was the licencee of the said shop. After sampling as per rules, one sample was sent to the Public Analyst for analysis. The Public Analyst filed Ext.P13 report stating that the sample contained added synthetic colouring matter tartrazine and was therefore adulterated. Thereafter, on the request of the accused, the second sample Crl.R.P. 435 & 438 of 2007 2 was sent to the Central Food Laboratory for analysis. Ext.P16 certificate of the Central Food Laboratory would show that the sample of banana chips contained water soluble synthetic colour in violation of Rule 29 of P.F.A. Rules, 1955. It was further reported in Ext.P16 certificate that the sample did not contain proper label declaration as required under Rule 32 of the P.F.A. Rules, 1955 and hence the sample was adulterated as well as misbranded. 4. Before the trial court, PW1 and PW2 were examined and Exts.P1 to P23 were marked for the prosecution. DW1 and DW2 were examined on the side of the revision petitioner. 5. The learned advocates for the revision petitioners have argued that the materials on record would show that the sample forwarded to the Central Food Laboratory was only one of the three samples prepared by PW1 after the purchase of the food item from the shop of the second accused and hence, the finding by the Central Food Laboratory that the Crl.R.P. 435 & 438 of 2007 3 sample did not contain proper label declaration cannot be correct. Ext.P6 mahazar would show that the food inspector purchased 600 gram of banana chips and thereafter, he divided the same into three parts and each part was put in different packets and thereafter, the said packets were sealed. During the course of evidence, PW1 stated that since the food item purchased did not contain the label, PW1 opened the packets and put the food item in a clean paper and mixed. Thereafter, it was divided into three parts and each part was packed in separate polythene packets and one of the said packets was sent to the Central Food Laboratory for analysis. It is clear from the evidence of PW1 that the sample analysed in the Central Food Laboratory was the sample prepared by PW1 as stated above. Therefore, there cannot be any ambiguity to the fact that the sample received in the Central Food Laboratory was the sample packed by PW1 and not the packet of sample purchased by PW1 from the vendor. In the said circumstances, the finding by the Central Food Laboratory Crl.R.P. 435 & 438 of 2007 4 that the sample was misbranded cannot be accepted to hold that the revision petitioners violated the provisions under Rule 32 of the P.F.A. Rules. The evidence of PW1 that he opened the packets as the packets did not contain the label cannot be accepted in view of Ext.P6 mahazar. Had there been any such packet having no proper label, then that would have definitely found a place in Ext.P6 mahazer prepared by PW1 at the spot. In the said circumstances, that part of the evidence of PW1 cannot be accepted. That apart, PW1 did not have any such case even at the time of filing the complaint. PW1 raised the contention regarding violation of Rule 32 only after the receipt of Ext.P16 report from the Central Food Laboratory. In view of the above reasons, the conviction and sentence passed by the courts below for the violation of Rule 32 of the PFA Rules cannot be sustained. 6. The learned counsel for the revision petitioners has submitted that since no laboratory for the analysis of the food item was defined and no validated method of analysis Crl.R.P. 435 & 438 of 2007 5 was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the PFA Act, Ext.P16 cannot be acted upon to hold that the food item purchased by the Food Inspector was adulterated. The learned counsel for the revision petitioners relied on the decision of the Apex Court in Pepsico India Holdings (P) Ltd. v. Food Inspector [(2011) 1 SCC 176] to 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 specified as mandated under Section 23 (1-A) (ee) and (hh) of the P.F.A. Act. Therefore, Ext. P16 certificate 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 Crl.R.P. 435 & 438 of 2007 6 such report and the accused was entitled to get acquittal. In the 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 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 petitioners and the learned Public Prosecutor. Even otherwise, in view of the decision in _Pepsico India Holdings (supra)_ , the conviction in this case cannot be sustained 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. In the result, these revision petitions stand allowed setting aside the conviction and sentence passed by the courts below under Sec.16 (1-A) r/w Sec. 7(i) and 2 (ia) (j) of the Crl.R.P. 435 & 438 of 2007 7 Prevention of Food Adulteration Act, 1954 r/w Rules 29 and 32 of the Prevention of Food Adulteration Rules, 1955 and the revision petitioners are acquitted for the said offence. The bail bonds of the revision petitioners stand cancelled and they are set at liberty. Sd/- **B. SUDHEENDRA KUMAR JUDGE** Scl/28.01.2016 True Copy PA to Judge