K. H. Buhari and P. Kochu Hassan v. The Food Inspector, Kilimanoor Circle, Attingal and K. Sekharan, Food Inspector, Kilimanoor Circle, Attingal

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938 Crl.Rev.Pet.No. 1416 of 2011 ( ) --------------------------------- Crl.A 169/2007 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM CC 596/2002 of J.M.F.C.-I,ATTINGAL ## REVISION PETITIONERS/APPELLANTS: --------------------------------------------------- 1. K.H. BUHARI, NOUSHAD MANZIL (A1) ALINTEMOODU, ALTHARAMOODU, NAGAROOR, ATTINGAL. 2. P. KOCHU HASSAN, NOUSHAD MANZIL (A2) ALINTEMOODU, ALTHARAMOODU, NAGAROOR, ATTINGAL. BY ADV. SRI.SHAJIN S.HAMEED RESPONDENTS/RESPONDENT: -------------------------------------- ## 1. THE FOOD INSPECTOR, KILIMANOOR CIRCLE, ATTINGAL,, REPRESENTED BY THE STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K. SEKHARAN, FOOD INSPECTOR, KILIMANOOR CIRCLE, ATTINGAL - 695 033. BY PUBLIC PROSECUTOR, SMT.JASMINE V.H THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P.No.1416 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of September 2016 ## O R D E R The accused in C.C. No.596 of 2002 on the files of the Court of the Judicial Magistrate of First Class -1, Attingal filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 16 (1A)(i) read with Sections 2(ia)(a)(j) and 7(i)(iii) of Prevention of Food Adulteration Act, 1954 (for short 'the P.F.A. Act'). 2. Heard. 3. The prosecution allegation can be briefly stated thus:- Crl.R.P.1416/2011 : 2 : On 17.4.2002 at about 1.15 p.m., PW1, the Food Inspector, purchased 500 grams of banana chips from the first accused. The second accused was the licensee of the shop. 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 contained synthetic food colour tartrazine and hence, the sample was adulterated. 4. Before the trial Court, PW1 to PW4 were examined and Exts.P1 to P24 were marked for the prosecution. No evidence was adduced on the side of the revision petitioners. 5. The learned counsel for the revision petitioners has argued that since no laboratory for the analysis of the food Crl.R.P.1416/2011 : 3 : 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. P13 report of the Public Analyst 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. 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 Crl.R.P.1416/2011 : 4 : [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 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 Crl.R.P.1416/2011 : 5 : 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. P13 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). Therefore, the conviction and sentence passed by the courts below under Section 16 (1A)(i) read with Sections 2(ia)(a)(j) and 7(i) of the P.F.A. Act, cannot be sustained and consequently, I set aside the same. 8. The courts below also convicted the second revision petitioner under Section 7(iii) read with Section 16 (1) of the PFA Act holding that the second revision petitioner had no licence under the PFA Rules during the Crl.R.P.1416/2011 : 6 : relevant period to sell the food item. There is no material before the Court to indicate that the second revision petitioner had the requisite licence during the relevant period to sell the food item. From the materials on record, I am satisfied that the courts below correctly convicted the second revision petitioner under Section 7(iii) read with Section 16 (1) of the PFA Act. 9. As regards the sentence, the learned counsel for the second revision petitioner pleaded for leniency. No previus conviction was proved against the second revision petitioner. The second revision petitioner is presently aged 77 years, submitted by the learned counsel for the revision petitioner. Considering the facts and circumstances of the case, including the age of the second revision petitioner, I am of the view that the sentence awarded by the courts Crl.R.P.1416/2011 : 7 : below against the second revision petitioner can be modified and reduced to imprisonment till the rising of the court and a fine of Rs. 500/- and in default to simple imprisonment for five days under Section 7 (iii) read with Section 16 (1) of the PFA Act, invoking the second proviso to Section 16(1) of the PFA Act, to meet the ends of justice. Accordingly, I order so. In the result, this Revision Petition stands allowed in part as above. The second revision petitioner shall surrender before the trial Court on 1-11-2016 to suffer the sentence. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/20.9.2016/_ _// True Copy //_ _PA to Judge_