K.A. Muhammed v. Joseph Shaji George and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938 Crl.Rev.Pet.No. 706 of 2013 () ------------------------------Crl.A 148/2003 of ADDL.SESSIONS COURT (ADHOC-1), ALAPPUZHA CC 367/1998 of J.M.F.C.-II, CHERTHALA ## REV. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------- K.A. MUHAMMED, KATTUNGAL HOUSE, CHANDIROOR P.O. BY ADVS.SRI.T.A.SHAJI (SR.) SRI.M.A.ASIF ## RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------------------------------------ ## 1. JOSEPH SHAJI GEORGE FOOD INSPECTOR, CHERTHALA CIRCLE, PIN-688524. ## 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.706 of 2013 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of March 2016 ## O R D E R The first accused in C.C. No.367 of 1998 on the files of the Court of the Judicial Magistrate of First Class - II, Cherthala filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 2(ia)(a), 7(i) and 16(1) (a)(i) of the Prevention of Food Adulteration Act, 1954 read with Rule 29 of the Prevention of Food Adulteration Rules, 1955 and Section 16(i)(a)(i) read with Rule 50(1) of the Prevention of Food Adulteration Rules, 1955. 2. Heard. Crl.R.P.706/2013 **==> picture [26 x 12] intentionally omitted <==** 3. The prosecution allegation can be briefly stated thus:- On 21.10.1997, PW1, the Food Inspector, purchased 600 gram of banana chips from the shop of the first accused. The accused Nos.2 and 3 were the manufacturers. 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 contained synthetic food colour tartrazine and therefore, the same was adulterated under the Prevention of Food Adulteration Rules, 1955. It was further alleged that the revision petitioner did not have the required licence under the P.F.A. Rules. 4. Before the trial Court, PW1 to PW6 were Crl.R.P.706/2013 : 3 : examined and Exts.P1 to P20 were marked for the prosecution. DW1 was examined and Exts.D1 to D5 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 analysis was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the PFA Act, Ext. P13 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 Crl.R.P.706/2013 : 4 : 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). 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 Crl.R.P.706/2013 : 5 : 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 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, the conviction under Section 16(1)(a)(i) read with Sections 2(ia)(a) and 7(i) of the Prevention of Food Adulteration Act, 1954 and Rule 29 of the Prevention of Food Adulteration Rules, 1955, cannot be sustained in this case 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 and consequently, the Crl.R.P.706/2013 : 6 : conviction and sentence passed by the courts below under Section 16(1)(a)(i) read with Sections 2(ia)(a) and 7(i) of the Prevention of Food Adulteration Act, 1954 and Rule 29 of the Prevention of Food Adulteration Rules, 1955 stand set aside and the revision petitioner is acquitted for the said offence. 7. The evidence on record would show that the revision petitioner did not have any valid licence on the date of purchase of the food item by the Food Inspector. The incident was on 21.10.1997. The revision petitioner was aged 29 years during the relevant period. Presently, the revision petitioner is aged 48 years. There is no previous conviction against the revision petitioner. There is also no allegation that the revision petitioner committed Crl.R.P.706/2013 **==> picture [26 x 12] intentionally omitted <==** any other offence of similar nature subsequent to the incident in this case. Considering the facts and circumstances of the case, I am of the view that the revision petitioner can be sentenced as provided under the 2[nd] proviso to Section 16(1) of the Prevention of Food Adulteration Act, 1954, to secure the ends of justice. Accordingly, the sentence awarded by the courts below stands modified and reduced to imprisonment till the rising of the court and a fine of Rs.500/- (Rupees five hundred only) and in default to simple imprisonment for five days under Section 16(1)(a)(i) of the PFA Act read with Rule 50(1) of the PFA Rules, to meet the ends of justice. In the result, this Revision Petition stands allowed in part as above. Crl.R.P.706/2013 : 8 : The revision petitioner shall surrender before the trial court on 20.5.2016 to suffer the sentence. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/29.3.2016_ _// True Copy //_ _PA to Judge_