High Court of KeralaSingle Judge2016-08-26Partly allowed; adulteration conviction set asi...

Jose V.O., S/o Vadakkethala Ouseph v. Food Inspector, Chalakudy Circle, Chalakudy and State of Kerala through Public Prosecutor

Case / Petition Number:Crl.Rev.Pet.No.463 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2016-08-26
Court Decision / Holding: The revision petition stands allowed in part. Ext. P18 (Central Food Laboratory report) cannot be acted upon to hold adulteration given the lack of a notified laboratory and a validated method of analysis per Section 23(1-A)(ee) and (hh). The court held that the main conviction under Sections 2(ia)(m) and 7(i)(iii) read with Section 16(1) of the PF A Act cannot be sustained. However, the courts below were right to convict for the licence offence under Rule 50(1) of the PF A Rules, as there was no material showing a valid licence during the period in question. The petitioner is sentenced to imprisonment till the rising of the court and a fine of Rs 500 with default imprisonment for five days; surrender date fixed as 1.12.2016.
Final Disposition: Partly allowed; adulteration conviction set aside due to lack of admissible laboratory evidence; licence-offence conviction sustained; sentence modified; surrender date fixed.

Parties to the Case

Appellants / Petitioners

Jose V.O., s/o Vadakkethala Ouseph

Respondents

The Food Inspector, Chalakudy Circle, Chalakudy
State of Kerala through Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri T. N. Manoj

Counsels for Respondents

• Public Prosecutor, Shri A. M. Thombra

Case Synopsis & Summary

The revision petitioner, Jose V.O., challenged a concurrent conviction and sentence recorded by the courts below under Sections 2(ia)(m) and 7(i)(iii) read with Section 16(1) of the Prevention of Food Adulteration Act, 1954, and Rule 50(1) of the PF A Rules, relating to adulteration of vinegar and licence violations. The facts show that on 19 February 1999, the Food Inspector purchased three bottles of vinegar from the petitioner. Prosecution relied on lab reports: Ext. P13 from Public Analyst and Ext. P18 from Central Food Laboratory, indicating non-conformity with PF A standards and hence adulteration; the petitioner contested the admissibility of Ext. P18, arguing that the laboratory was not notified and there was no validated method of analysis as required by Section 23(1-A)(ee) and (hh) of the PF Act. The petitioner invoked the Supreme Court’s decision in PepsiCo India Holdings (P) Ltd. v. Food Inspector to contend that such reports cannot support a prosecution. The Kerala High Court reviews Rasheed v. Food Inspector and Gopalakrishnan v. Food Inspector and concludes that, given the lack of a notified laboratory and validated method, Ext. P18 cannot sustain adulteration conviction. While the licence violation under Rule 50(1) PF A Rules may not be set aside, the main adulteration conviction is set aside. The revision petition is allowed in part. The court imposes imprisonment till rising of the court and a fine of Rs 500, with default simple imprisonment for five days, and fixes a surrender date of 1.12.2016 for compliance.

Provisions of Law Cited

Section 2(ia)(m) read with Section 7(i)(iii) and Section 16(1) of the Prevention of Food Adulteration Act, 1954Rule 50(1) of the Prevention of Food Adulteration Rules, 1955Section 23(1-A)(ee) and (hh) of the PF A ActSecond proviso to Section 16(1) of the PF Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner’s counsel contended that Ext. P18 (Central Food Laboratory report) was inadmissible since the laboratory was not notified and no validated method of analysis existed under Section 23(1-A)(ee) and (hh) of the PFA Act; reliance on PepsiCo India Holdings (supra) should lead to acquittal for lack of admissible evidence. The argument drew on case law clarifying the necessity of notified laboratories and validated analytical methods for prosecution to be valid, and urged that the conviction for adulteration could not stand absent proper scientific proof.

Contentions of Respondents

The respondents/State contended that the lab reports formed the basis of the conviction and that adherence to PF A Rules and statutory requirements was satisfied; they argued that the accused’s licence status under PF A Rules was also at issue and supported the conviction for licence violation.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Pepsico India Holdings (P) Ltd. v. Food Inspector	(2011) 1 SCC 176	Positive	Apex Court held that laboratories not notified and tests not conducted with validated methods cannot form the basis of a prosecution; this authority is applied to exclude Ext. P18 evidence.
Gopalakrishnan v. Food Inspector	2013 (3) KLT 455	Positive	Cited to illustrate the principle that Public Analyst's report not admissible and can lead to acquittal; relied upon to support the same reasoning regarding admissibility of lab reports.
Rasheed v. Food Inspector	2016 (2) KLT 390	Positive	Division Bench held that prosecution requires a notified laboratory and a validated method; used to reinforce the inadmissibility of non-notified lab analysis in this case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Jose V.O., S/o Vadakkethala Ouseph v. Food Inspector, Chalakudy Circle, Chalakudy and State of Kerala through Public Prosecutor and instantly map out authorities that support, challenge, or govern your position.

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 FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938 Crl.Rev.Pet.No. 463 of 2009 ( ) -------------------------------Crl.A 540/2006 of ADDL. SESSIONS COURT(ADHOC 2), THRISSUR CC 781/2001 of J.M.F.C.,IRINJALAKUDA ## REVISION PETITIONER: -------------------------------- JOSE V.O,S/O.VADAKKETHALA OUSEPH, KODAKARA VILLAGE DESOM,MUKUNDAPURAM TALUK. BY ADV. SRI.T.N.MANOJ RESPONDENTS: --------------------- 1. THE FOOD INSPECTOR CHALAKUDY CIRCLE, CHALAKUDY. 2. STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI.ALEX M THOMBRA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.463 of 2009 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of August 2016 ## O R D E R The accused in C.C. No.781 of 2001 on the files of the court of the Judicial Magistrate of First Class, Irinjalakuda, filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 2 (ia)(m) and 7(i)(iii) read with Section 16(1) of Prevention of Food Adulteration Act, 1954 (for short 'the P.F.A. Act') read with Rule 50(1) of the Prevention of Food Adulteration Rules, 1955 (for short 'the P.F.A. Rules'). 2. Heard. Crl.R.P.463/2009 **==> picture [21 x 10] intentionally omitted <==** 3. The prosecution allegation can be briefly stated thus:- On 19.2.1999 at about 4 p.m., PW1, the Food Inspector, purchased 3 bottles of vinegar from the petitioner. After complying with the legal formalities, one sample was sent for analysis to the Public Analyst. The Public Analyst filed Ext. P13 report stating that the sample did not conform to the standard prescribed for vinegar under the P.F.A. Rules and hence, the sample was adulterated. Thereafter, on the request of the accused, the second sample was sent to the Central Food Laboratory for analysis. Ext.P18 certificate of the Central Food Laboratory would also show that the sample did not conform to the standard prescribed for vinegar under the Crl.R.P.463/2009 : 3 : P.F.A. Rules as the total ash, acetic acid content and total solids were less than the minimum prescribed limits and hence, the sample was adulterated. It is further alleged that the petitioner did not have a valid licence under the P.F.A Rules to sell the food item. 4. Before the trial Court, PW1 to PW5 were examined and Exts.P1 to P23 were marked for the prosecution. No evidence was adduced from the side of the revision petitioner. 5. The learned counsel for the revision petitioner has argued 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. P18 certificate of the Central Crl.R.P.463/2009 : 4 : Food Laboratory 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 [(2011) 1 SCC 176] to buttress his argument. 6 It was held by the Hon'ble 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. 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 Crl.R.P.463/2009 : 5 : found that the Public Analyst's report was not admissible in evidence and accordingly, the Court acquitted the accused. The Division Bench of this Court in Rasheed v. Food Inspector [2016 (2) KLT 390] considered the above question on a reference by a learned Single Judge. The Division Bench in Rasheed (supra) held that if an analysis is required to initiate prosecution, there should be notified laboratory and validated method of analysis as mandated under Section 23(1-A)(ee) and (hh) of the PFA Act for a successful prosecution as held by the Apex Court in Pepsico Holdings (supra). 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 Crl.R.P.463/2009 : 6 : mandated under Section 23 (1-A) (ee) and (hh) of the P.F.A. Act. Therefore, Ext. P18 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). Therefore, the conviction and sentence passed by the courts below under Sections 2 (ia)(m) and 7(i) read with Section 16(1) of the P.F.A. Act, cannot be sustained and consequently, I set aside the same. 8. The courts below concurrently found that the revision petitioner sold the food articles without having a valid licence under the P.F.A. Rules. There is no material before the court to show that the revision petitioner had any valid licence under the P.F.A. Rules during the period in Crl.R.P.463/2009 : 7 : question. In the said circumstances, the concurrent finding by the courts below that the revision petitioner committed the offence under Rule 50(1) of the P.F.A. Rules read with Sections 16(1) and 7(iii) of the P.F.A. Act, does not warrant any interference by this court. 9. As regards the sentence, the learned counsel for the revision petitioner has pleaded for leniency. There is no previous conviction against the revision petitioner. Considering the facts and circumstances of the case, including the period elapsed since the incident, I am of the view that the revision petitioner can be sentenced as provided under 2[nd] proviso to Section 16(1) of the P.F.A. Act. Accordingly, the revision petitioner is sentenced to imprisonment till the rising of the court and a fine of Crl.R.P.463/2009 : 8 : Rs.500/- (Rupees five hundred only) and in default to simple imprisonment for five days, to secure the ends of justice. Accordingly, I order so. In the result, this revision petition stands allowed in part as above. The revision petitioner shall surrender before the trial court on 1.12.2016 to suffer the sentence. **B.SUDHEENDRA KUMAR, JUDGE** _al/dl/_