K. Ramachandran Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934** **Crl.Rev.Pet.No. 1242 of 2004 ( ) -------------------------------CRA.55/1998 of I ADDL.SESSIONS JUDGE, TRIVANDRUM CC.420/1994 of J.M.F.C.-I,ATTINGAL --------------------** **REVISION PETITIONER(S)/APPELLANT/1ST ACCUSED :-** **--------------------------------------------------** **K.RAMACHANDRAN NAIR, CHANDRA BHAVAN, VALIA ELA, KOONTHALLOOR, CHIRAYINKEEZHU THIRUVANANTHAPURAM.** **BY ADVS.SRI.SASTHAMANGALAM G.GOPALAKRISHNAN NAIR SRI.R.BINDU (SASTHAMANGALAM)** **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE :-** **-------------------------------------------------** **1. K.SEKHARAN, FOOD INSPECTOR, KIZHUVILAM PANCHAYAT, ATTINGAL CIRCLE, ATTINGAL, THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **PUBLIC PROSECUTOR SMT.JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J.** **-------------------------------Crl.R.P. No.1242 of 2004 -----------------------------------Dated this the 19[th] day of October 2012** ## **O R D E R** Petitioner was the first accused in C.C.No.420/1994 of J.F.C.M.-I, Attingal. Four accused persons faced trial before that court. The petitioner was found guilty of the offences punishable under Secs.2(ia)(a)(c)(m) and 7(1)(iii) r/w Sec.16(1)(a)(i) of Prevention of Food Adulteration Act and he was sentenced to undergo S.I. for one year and to pay Rs.1,000/- as fine and in default to undergo S.I. for three months. Other accused were acquitted by the learned Magistrate. The acquittal of other accused was not challenged by the respondent. The petitioner challenged the conviction and sentence before the appellate court. After re-appreciating the evidence, the appeal was dismissed confirming the conviction and sentence passed against the petitioner. Crl.R.P. No.1242 of 2004 -: 2 :- 2. PW1, the Food Inspector purchased 450 grams of cumin seed from the petitioner on 18.9.1992 from his shop bearing No.KP-II/561 of Kizhuvilam Panchayath. The procedural formalities regarding the sampling, packing and labelling as provided under the PFA Act and Rules were complied with. Form-III report was received as per which the cumin seed did not conform to the standard prescribed and it was certified to be adulterated. The petitioner did not opt to send the 2[nd] sample to be analysed by the Central Food Laboratory. 3. Before the trial court, PW1 to PW5 were examined and Exts.P1 to P18 were marked. Two witnesses were examined as DW1 and DW2. Exts.D1 to D4 were marked. The learned Magistrate after analysing the evidence found the petitioner guilty and thus he was convicted and sentenced as above. The appeal filed by him met with the same fate. 4. Learned counsel for the petitioner submits that Crl.R.P. No.1242 of 2004 -: 3 :- the courts below were not justified in acting upon the evidence given by DW2 and Ext.D1 (the cash bill) obtained by him from the shop of A2. The evidence given by DW1 is nothing but a bundle of falsehood and so, that should have been totally brushed aside as unworthy of credence. 5. The specific case put forward by the petitioner is that he had purchased 2 kilograms of cumin seed from the shop of the 2[nd] accused on 18.9.1992 at about 10.30 a.m. and Ext.D1 is the cash bill issued from that shop. DW1 was the Accountant of that shop, who was examined to state that Ext.D1 cash bill was not the one issued from his shop. But the learned counsel for the petitioner has specifically pointed out the answers given by DW1 to show that he was giving evidence only to help accused Nos.2 to 4. A2 is the firm of which A3 and A4 are stated to be the partners. It was specifically admitted by DW1 that Ext.D1 contains the warranty having been printed on it. It was also admitted that Ext.D1 contains the warranty as was usually seen in Crl.R.P. No.1242 of 2004 -: 4 :- such bills issued from that shop. It was further admitted that Ext.D1 shows the sales tax number and phone number of that shop which would clinch the issue that Ext.D1 was the bill issued from the shop of A2. There is no dispute regarding the fact that Ext.D1 shows an entry regarding sale of 2 kilograms of cumin seed from that shop. When suggestion was put to DW1 he denied that Ext.D1 was issued from that shop only because Ext.D1 was not in his (DW1) handwriting. The cumulative effect of these answers would probabilise the case of the petitioner that Ext.D1 was obtained by the petitioner when he purchased 2 kilograms of cumin seed on 18.9.1992 at about 10.30 a.m. from A2. Petitioner as DW2 has testified before court that Ext.D1 was obtained when he purchased the cumin seed from the shop of the 2[nd] accused. It was also stated by him that cumin seed so purchased by him, as usual was kept in the tin (closed container). This, according to the learned counsel for the petitioner, would satisfy condition (b) to Sec.19(2) of Crl.R.P. No.1242 of 2004 -: 5 :- the Act. The evidence given by DW2 that he stored the food article (cumin seed) properly as stated above and that he sold it in the same state as he purchased should have been accepted by the learned Magistrate in view of the fact that there was no specific challenge regarding the evidence so given by DW2 and on that ground itself, the petitioner should have been acquitted by the courts below, the learned counsel for the petitioner submits. 6. Learned counsel for the petitioner would also draw the attention of the court to the statement recorded under Sec.313 Cr.P.C. to fortify his submission that ignoring the decisions on the point, the learned Magistrate has put the entire chief examination given by one witness as one question. Though, it was condemned several times still it is seen that the question was prepared in such a way that the entire chief examination of PW1 be treated as one question. The purpose of questioning the accused under Sec.313 Cr.P.C. is to enable the accused to explain the Crl.R.P. No.1242 of 2004 -: 6 :- circumstances appearing in the evidence against him. Learned counsel has relied upon the decision in **Bhagat Singh** v. **State of Madhya Pradesh** [AIR 1953 SC 468] which was followed by the Supreme Court in **Shaikh Maqsood** v. **State of Maharashtra** [2009 (6) SCC 583] to fortify his submission that by putting such an omnibus statement as one question, the accused was seriously prejudiced. It was held by the Supreme Court : “The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting S.313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.” There can be no doubt that the questions prepared and put Crl.R.P. No.1242 of 2004 -: 7 :- to the accused were not in compliance of the mandatory requirement under Sec.313(1)(b) of Cr.P.C. as has been laid down by the Apex Court in the various decisions. That also is another ground to set aside the conviction, it is argued. If illegality in the recording of 313 statement alone was the reason then perhaps it can be contended that the matter can be remanded to the court for questioning the accused again. But, so far as the case on hand is concerned, the evidence given by DW2 and Ext.D1 would certainly show that the cumin seed which was purchased by the Food Inspector as sample was part of the cumin seed purchased by the accused from the shop of 2[nd] accused which was covered by Ext.D1 bill. The contention that the price shown in Ext.D1 does not reconcile with the price shown in Ext.P3 cannot be a reason to hold that Ext.D1 was subsequently concocted or manipulated by the petitioner to suit his case, for according to the learned counsel, no manufacturer or wholesaler will issue a receipt of their establishment only to Crl.R.P. No.1242 of 2004 **==> picture [30 x 10] intentionally omitted <==** invite a prosecution against themselves. Considering all the aspects, I find that the conviction and sentence passed against the petitioner cannot be sustained. In the result, this Crl.R.P. is allowed. The conviction and sentence passed against the petitioner are set aside. The accused is acquitted and he is set at liberty. The bail bond executed by him stand cancelled. The fine amount if any remitted shall be refunded to the petitioner. **N.K.BALAKRISHNAN, JUDGE.** Jvt