High Court of KeralaSingle JudgeRevision petition allowed; conviction set aside...

K. Afsal Koya Thangal v. Food Inspector, Kannur Circle, Kannur and State

Case / Petition Number:Crl.Rev.Pet.No.989 of 2003

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • B. Sudheendra Kumar
Judgment Date
2016-01-11
Court Decision / Holding
The revision petition is allowed. The conviction and sentence under Section 16(1)(a)(i) read with Sections 7(i) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 and Rule 5 Appendix A.05.08.01 of the Prevention of Food Adulteration Rules, 1955 are set aside. The revision petitioner is acquitted. The bail bond of the revision petitioner stands cancelled and he is set at liberty.
Final Disposition
Revision petition allowed; conviction set aside; accused acquitted; bail cancelled; petitioner to be set at liberty (acquitted).

Parties to the Case

Appellants / Petitioners

  • K. Afsal Koya Thangal

Respondents

  • Food Inspector, Kannur Circle, Kannur
  • State represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri V. Rajagopal
  • • Sri K. N. Chathukutty

Counsels for Respondents

  • • Public Prosecutor, Shri R. Githesh

Case Synopsis & Summary

This is a criminal revision petition by the second accused challenging a concurrent conviction and sentence under the Prevention of Food Adulteration Act, 1954, for adulteration of coriander powder. On 5 February 1990, a Food Inspector purchased three packets of coriander powder from the accused's shop. After sampling, one sample was sent to the Public Analyst, which concluded the sample did not conform to the standard. A second sample was sent to the Central Food Laboratory, which also reported adulteration and record moisture and ash content. The trial Court and subsequent courts convicted the accused under Section 16(1)(a)(i) read with Sections 7(i) and 2(ia)(m) of the PFA Act and Rule 5, Appendix A.05.08.01. The defense argued that there was no notified laboratory and no validated method of analysis under Section 23(1-A)(ee) and (hh) of the Act, rendering Ext. P23 unreliable; he relied on Pepsico India Holdings (P) Ltd. v. Food Inspector. The Kerala High Court noted the lack of a defined laboratory and validated method, and, following Pepsico (and Gopalakrishnan v. Food Inspector), held that the Public Analyst's report is inadmissible as evidence. Consequently, the conviction cannot stand, and the Revision Petition is allowed; the accused is acquitted, bail is cancelled, and he is set at liberty.

Provisions of Law Cited

16(1)(a)(i) read with Section 7(i) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954Rule 5 Appendix A.05.08.01 of Prevention of Food Adulteration Rules, 1955Section 23(1-A)(ee) and (hh) of the PFA Act, 1954Prevention of Food Adulteration Act, 1954

Submissions & Arguments

Contentions of Appellants / Petitioners

The learned counsel for the revision petitioner 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. P23 cannot be acted upon to hold that the food item purchased by the Food Inspector was adulterated. He relied on the Apex Court’s decision in Pepsico India Holdings (P) Ltd. v. Food Inspector (2011) 1 SCC 176, which held that where laboratories are not notified and tests by such laboratories are not admissible, no prosecution can be based on such report, entitling the accused to acquittal. The respondent-revision court’s reasoning followed this principle, citing Gopalakrishnan v. Food Inspector (2013) (3) KLT 455 to the effect that Public Analyst’s report may be inadmissible where not properly grounded in notified laboratories and validated methods.

Contentions of Respondents

The respondents contended that the evidence of analysis—Exts. P13 and P23—along with the sampling procedure and statutory requirements under the PFA Act should be read together; the reports were admissible and supported conviction; the law requires rigorous analysis, which the prosecution complied with under the applicable rules and the chain of evidence; the law on admissibility of expert reports should not bar the prosecution where the laboratory standards and methods were not properly challenged at trial.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Pepsico India Holdings (P) Ltd. v. Food Inspector(2011) 1 SCC 176PositiveSupreme Court held that if laboratories are not notified and tests conducted by such laboratories are not admissible, no prosecution can be based on such report, entitling the accused to acquittal; the present court applies this principle to acquit.
Gopalakrishnan v. Food Inspector2013 (3) KLT 455PositiveKerala High Court relied on Pepsico’s principle and held Public Analyst’s report not admissible; affirmed acquittal, with Division Bench later affirming.

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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 MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937 Crl.Rev.Pet.No. 989 of 2003 ( ) -------------------------------CRA 143/1996 of SESSIONS COURT (ADHOC), THALASSERY STC 485/1990 of J.M.F.C.-I, KANNUR ## REVISION PETITIONER/APPELLANT/2ND ACCUSED: -------------------------------------------------------------------- K.AFSAL KOYA THANGAL S/O.KUNHI KOYA THANGAL AGED 33 YEARS, KANNUR BY ADVS.SRI.V.RAJAGOPAL SRI.K.N.CHATHUKUTTY RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------- 1. FOOD INSPECTOR, KANNUR CIRCLE, KANNUR 2. STATE REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1&R2 BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.989 of 2003 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of January 2016 ## O R D E R The second accused in S.T. No.485 of 1990 on the files of the Court of the Judicial Magistrate of First Class-1, Kannur, filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 16(1)(a)(i) read with Section 7(i) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 and Rule 5, Appendix A.05.08.01 of Prevention of Food Adulteration Rules, 1955. 2. Heard. Crl.R.P.989/2003 : 2 : 3. The prosecution allegation can be briefly stated thus:- On 5.2.1990, PW2, the Food Inspector, purchased 3 packets, each packet weighing 100 gram of corriander powder from the shop of the first accused. The second accused was the person who supplied the same to the first accused. After sampling as per rules, one of the samples 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 corriander powder under the Prevention of Food Adulteration Rules, 1956 and therefore, the same was adulterated. Thereafter, on the request of the accused, second sample was sent to Crl.R.P.989/2003 : 3 : the Central Food Laboratory for analysis. Ext.P23 report of the Central Food Laboratory would show that the sample did not conform to the standard prescribed for corriander powder and therefore, it was adulterated. It was stated that the sample contained 5.6% moisture, 9.9% total ash and 2.1% ash insoluble in dilute HCL. 4. Before the trial Court, PW1 to PW6 were examined and Exts. P1 to P30 were marked for the prosecution. DW1 was examined and Exts.D1 and D2 were marked for the revision petitioner. 5. The learned counsel for the revision petitioner has submitted that since no laboratory for the analysis of the food item was defined and no validated method of Crl.R.P.989/2003 : 4 : analysis was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the PFA Act, Ext. P23 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. 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.P23 certificate of analysis cannot be acted upon to hold that the food item purchased Crl.R.P.989/2003 : 5 : 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 this Court in Gopalakrishnan v. Food Inspector [2013 (3) KLT 455], the court relied on the decision of the Supreme Court in Pepsico (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 Crl.R.P.989/2003 : 6 : 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 (supra), the conviction 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, this Revision Petition stands allowed setting aside the conviction and sentence passed by the courts below under Section 16(1)(a)(i) read with Sections 7(i) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 and Rule 5 Appendix A.05.08.01 of Prevention Crl.R.P.989/2003 : 7 : of Food Adulteration Rules and the revision petitioner is acquitted for the said offence. The bail bond of the revision petitioner stands cancelled and he is set at liberty. Sd/- **B.SUDHEENDRA KUMAR,** **JUDGE** _dl/.19.1..2016_ _// True Copy // PA to Judge_