K.K. Purushothaman v. Food Inspector, Perumbavoor Circle, Perumbavoor and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 20TH DAY OF JUNE 2017 / 30TH JYAISHTA, 1939** **Crl.Rev.Pet.No. 2257 of 2004** ## **AGAINST THE JUDGMENT DATED 24-04-2004 IN CRLA NO. 284/2002 OF THE VTH ADDITIONAL SESSIONS COURT, ERNAKULAM** **AGAINST THE JUDGMENT DATED 23.04.2002 IN ST 1056/1998 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, MOOVATTUPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED.** **K.K.PURUSHOTHAMAN, KALLIDUMBIL HOUSE, AIKKOTTUKAVALA, THRIKKARIYOOR,, ERNAKULAM DISTRICT.** **BY ADV.SRI.RAJESH VIJAYAN** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE.:** **1. FOOD INSPECTOR, PERUMBAVOOR CIRCLE, PERUMBAVOOR.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.PRIYA SHANAVAZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-06-2017,** **THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **SKV** **K.P. JYOTHINDRANATH, J. ============================** Crl. Revision Petition No.2257 of 2004 =============================== Dated this the 20[th] day of June, 2017 ## ORDER In this Criminal Revision Petition, the challenge is against the concurrent findings of guilt by the courts below. Revision petitioner is the accused in S.T.No.1056/1998 on the files of the Judicial First Class Magistrate's Court-I Muvattupuzha and appellant in Criminal Appeal No.284/2002 on the file of the IV[th] Additional Sessions Court, Ernakulam. 2. The accused was convicted for an offence under Sections 2(ix)(d) read with section 7(II) read with Section 16(I)(a)(I) and Rule 50 of the Prevention of Food Adulteration Rules read with Section 7(III) and 16(1)(a)(i) (ii) of the Prevention of Food Adulteration Act. The sentence is to Crl.Revision Petition No.2257 of 2004 2 undergo simple imprisonment for six months as well as to undergo simple imprisonment for one month for lack of license. ## 3. Heard 4. The prosecution case is that on 12.02.1998, introducing herself as Food Inspector and also after issuing Form VI notice, complainant purchased 750 gms of urad dal. It was packed and sealed in accordance with the provisions of the Act and Rules. On analysis, it was found that the article was adulterated/misbranded. It is also the case of the prosecution that at the time of purchasing the article, the vendor was found not having the required license from the local authority to vend the food articles as required under Section 7 (iii) of Prevention of Food Adulteration Act. A prosecution was initiated as the sample was found adulterated/misbranded on analysis. Revision Petitioner moved an application under Section 13(2) of the Act and Crl.Revision Petition No.2257 of 2004 3 Ext.P1, CFL report obtained. There also, it was stated that urad dal was adulterated/misbranded. It contained inorganic extraneous matter and the percentage was 1.7. It is also noted therein that the sample showed the presence of talc powder. 5. The point to be considered by this Court is that whether an interference is warranted under the revisional jurisdiction. It can be seen that CFL report as well as the public analyst report showed that the article was adulterated/misbranded. The public analyst report was marked as Ext.P8. On the basis of the said report, the complaint was filed by the Food Inspector. As per Ext.P8, talc was noted as 0.8% by weight, moisture was noted as 10.4% by weight and it was found out by heating the pulverized grains at 130[0] to 133[0] degree centigrade for two hours. This analysis can be conducted only in a sophisticated laboratory. It can be further seen that as per Ext.P11, moisture content Crl.Revision Petition No.2257 of 2004 4 was noted as 12.51% and inorganic extraneous matter was detected as 1.75%, organic extraneous matter was detected as 0.76% and damaged matter was detected as 1.64%. Further it was also noted therein that there was presence of talc powder. 6. The complaint of adulteration/misbranding was taken on file on the basis of the findings in the public analyst report which was marked as Ext.P8. As per the dictum laid down in **Rasheed v. Food Inspector** reported in [2016 (2) KLT 390] it was categorically held by following the dictum laid by our Honourable Apex Court in **Pepsico India (Pvt.) Ltd. v. Food Inspector** reported in [2010 (4) KLT 706 (SC)] that, if the analysis was conducted by the public analyst shown under the Prevention of Food Adulteration Act in a laboratory, not defined in the terms of Section 23(IA)(ee), a report so obtained cannot be the basis of the prosecution. Similarly, regarding the procedure of analysis to be followed also is to Crl.Revision Petition No.2257 of 2004 5 be notified. In this case, the incident took place in the year 1998. Admittedly, during the said period, when the analysis report was obtained, there was neither defined laboratory as required nor the method of analysis defined as contemplated under Section 23(IA)(hh). Under such circumstances, a prosecution initiated as per the analysis report marked as Ext.P8 and continued as per the finding in Ext.P11, will not be good in law. Thus, the conviction under Section 2(ix)(d) read with Section 7(ii) and 16(i)(a)(i) of Prevention of Food Adulteration Act is hereby set aside. 7. The next point to be considered is regarding the conviction and sentence for vending article without license. It is the specific submission of the learned counsel for the appellant, that Section16(1)(a)(ii) will cover only food other than adulterated food, i.e. in a single prosecution, both the offence cannot be alleged as in this case. Under such circumstances, at the initial stage itself, the prosecution Crl.Revision Petition No.2257 of 2004 6 committed a mistake. It is submitted that the case of the prosecution is specific and the paragraph in the complaint relating to an offence for violation of Rule 50 of the Prevention of Food Adulteration Rules is stated that “¦ÏÄßÈÞW dÉÄß ¿ß ÆßÕØ¢ ¨ ØÎÏ¢ ¨ µ¿ÏßW Éß.®Ëí.® èÜØXØí µâ¿ÞæÄ ÎßØí dÌîÞXÁíÁí ¦Ï ©ùÆí ÆÞW ÕßWÉÈ È¿Jß 1954_æÜ Éß.®Ëí.® ¦µíxí dɵø¢ µáx¢ æºÏñßøßAáKá.“, this will not lie under the alleged Section. Section16(1)(a)(ii) is not contemplating any sale of adulterated food. So a conviction under the part II of Section16 will not lie. In support of the argument, the counsel highlighted the dictum laid down by this Court in _**Vijayan Nair v. Food Inspector**_ [2015 (4) KLT 156]. 8. In this regard, I perused the complaint. As per the complaint, it is stated that the sample was lifted from a grocery shop and at that point of time, the Food Inspector was not having a preconceived notion that sample obtained from Crl.Revision Petition No.2257 of 2004 7 an adulterated food article. Only after getting the analysis report, he found that it was adulterated/misbranded. As such, prosecution launched. But, for the reasons stated above, this Court already found that revision petitioner is not guilty for an offence for adulteration/misbranding. The relevant portion of the penal section is as follows:- **-** Section16. Penalties- (1 **)** subject to the provisions of sub-section (IA) if any person---- - _(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of food--_ - _(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provisions of this Act or any rule made thereunder or by an order of the Food (Health) Authority;_ - _(ii) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or_ Crl.Revision Petition No.2257 of 2004 8 9. Then surely, he will be liable for an offence for selling food article without license, i.e., he had committed an offence under Section 7(iii) of the PFA Act read with Rule 50 of the Prevention of the Prevention of Food Adulteration Act. Thus, it is also relevant to note at this juncture that, the burden to prove that at the relevant point of time, the revision petitioner was having license to sell food article is upon him. The evidence also shows that the Food Inspector visited to a small petty grocery shop. But, surely sale can be conducted only by obtaining license as contemplated under Rule 50 of the Prevention of Food Adulteration Rules, that is a license under Rule 10 of the Panchayat Raj Rules. Thus, conviction under Section 16(1)(a)(ii) is upheld. The only question is regarding sentence. It can be seen that under Section 16(I) (a)(ii), there is no minimum sentence. In this case, the lifting of article was as back as on 12.02.1998. Considering the passage of time and further considering that it is only a petty Crl.Revision Petition No.2257 of 2004 9 shop and also considering the fact that there is no conviction under Section 16(1)(a)(i), imprisonment for a long period is not warranted. Hence, the revision petitioner is sentenced to undergo imprisonment till rising of the court and shall also pay a fine of Rs.500/- with default simple imprisonment for seven days. SD/- **K.P. JYOTHINDRANATH, JUDGE** SKV