K. Kunhimuhammed v. State of Kerala and Food Inspector, Wadakkancherry

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937 Crl.Rev.Pet.No. 717 of 2007 ( ) -------------------------------CRL.A 301/2004 of III ADDITIONAL SESSIONST COURT (ADHOC) FAST TRACK NO.1, THRISSUR CC 356/2000 of J.M.F.C.-II,THRISSUR ## REVISION PETITIONER(S)/APPELLANT/ACCUSED:: -------------------------------------------------------------------- K. KUNHIMUHAMMED, AGED 48 YEARS, S/O. ABUBACKER MULLA, KUDALLUR HOUSE, P.O. PALLUR DESAMANGALAM, THALAPPILLY TALUK. BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S)/RESPONDENTS/COMPLAINANT-STATE:: ------------------------------------------------------------------------------- ## 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. FOOD INSPECTOR, WADAKKANCHERRY. BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.717 of 2007 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of January 2016 ## O R D E R The accused in C.C. No.356 of 2000 on the files of the Court of the Judicial Magistrate of First Class - II, Thrissur has filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 2(ia)(a), (c), (j), 7(i) and (ii) read with Section 16(1)(a) and 16(1A) of the Prevention of Food Adulteration Act, 1954. (for short “the PFA Act”). 2. Heard. 3. The prosecution allegation can be briefly stated Crl.R.P.717/2007 : 2 : thus:- On 8.3.1999 at about 11 a.m., the Food Inspector, Wadakanchery, purchased 600 grams of chilly powder from the shop of the accused. After sampling as per rules, 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 chilly powder under the Prevention of Food Adulteration Rules, 1955 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.P16 report of the Central Food Laboratory would also show that the sample did not conform to the standard prescribed for chilly powder and therefore, it was Crl.R.P.717/2007 : 3 : adulterated. 4. Before the trial Court, PW1 to PW3 were examined and Exts. P1 to P20 were marked for the prosecution. No evidence was adduced on the side of the revision petitioner. 5. Even though there was allegation of violation of Rules 32 and 33 of P.F.A. Rules, the trial court found that the charge in that regard could not be sustained. Ext.P16 report of the Central Food Laboratory would show that foreign starch namely wheat starch and artificial colouring materials like sunset yellow and carmoisine were present in the sample. In the said circumstances, it was mentioned in Ext.P16 report that the sample was misbranded as well as adulterated. There is no other material before the court Crl.R.P.717/2007 : 4 : to indicate that the sample was misbranded or adulterated. 6. 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 analysis 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 or misbranded. 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 Crl.R.P.717/2007 : 5 : 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. P16 report of analysis cannot be acted upon to hold that the food item purchased in this case was adulterated or misbranded 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 India Holdings (supra) and Crl.R.P.717/2007 : 6 : 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), 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, this Revision Petition stands allowed setting aside the conviction and sentence passed by the courts below under Section 2(ia)(a), (c), (j), 7(i) and (ii) Crl.R.P.717/2007 : 7 : read with Sections 16(1)(a) and 16(1A) of the PFA Act, 1954 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/..1.2016_ _// True Copy // PA to Judge_