High Court of KeralaSingle Judge2020-10-13Criminal revision petition allowed.

K.M. Vinod v. Food Inspector, Thodupuzha Circle, and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.179 of 2005(B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Anil Kumar
Judgment Date: 2020-10-13
Court Decision / Holding: The criminal revision petition is allowed. The conviction and sentence imposed by the trial court and modified by the appellate court stand set aside. The revision petitioner/3rd accused is found not guilty of the offences and acquitted. Bail bonds, if any, are cancelled; the petitioner is to be set at liberty. If any fine had been deposited, it shall be released to the petitioner. Pending applications, if any, are disposed of.
Final Disposition: Criminal revision petition allowed.

Parties to the Case

Appellants / Petitioners

K.M. Vinod, S/o. Madhavan, Kochalikottu House, Methal P.O., Perumbavoor, Ernakulam

Respondents

Food Inspector, Thodupuzha Circle
State of Kerala, rep. by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Santosh Subramanian
• Sri. Sherry J. Thomas
• Sri. S. Sreekumar (North Paravur)
• Sri. E.A. Thankappan

Counsels for Respondents

• Sri. M.S. Breez

Case Synopsis & Summary

This is a Kerala High Court criminal revision petition by K.M. Vinod (3rd accused) challenging the conviction of the 3rd accused under the Prevention of Food Adulteration Act, 1954 and the corresponding misbranding charges. The case stems from a complaint by the Food Inspector alleging adulteration and misbranding of three bottles of pooja ghee purchased from a bakery located within Vazhathopu Grama Panchayat. Initial testing by the Public Analyst (Form-III) indicated adulteration; the 3rd accused exercised his right to a second analysis by the Central Food Laboratory, which also found adulteration and misbranding. The trial court convicted the 3rd accused along with others on various sections of the PFA Act (2(ia)(m), 7(i), 16(1)(a)(i), and 2(ix)(k)); others were acquitted. On appeal, the appellate court partly acquitted the 3rd accused of some offences but convicted him under others (2(ix)(k), 7(ii), 16(1)). The High Court, citing Pepsico India Holdings Pvt. Ltd. v. Food Inspector, held that Form-III evidence must comply with Sections 23(1A)(ee)/(hh) and that cognizance based on faulty reports is illegitimate. Consequently, the conviction and sentence were set aside, the 3rd accused was acquitted, bail bonds cancelled, fines, if any, to be released, and pending applications disposed of. The revision petition is allowed.

Provisions of Law Cited

Section 2(ia)(m) of the Prevention of Food Adulteration Act, 1954Section 7(i) of the Prevention of Food Adulteration Act, 1954Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954Section 2(ix)(k) of the Prevention of Food Adulteration Act, 1954Section 7(ii) of the Prevention of Food Adulteration Act, 1954Section 16(1) of the Prevention of Food Adulteration Act, 1954Section 23(1A)(ee) of the Prevention of Food Adulteration Act, 1954Section 23(1A)(hh) of the Prevention of Food Adulteration Act, 1954

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the prosecution relied on Form-III and Central Lab reports to sustain conviction; the trial court correctly recorded guilt against the 3rd accused, and the appellate court’s partial acquittal was erroneous. He argues that the evidence chain, including the Public Analyst’s report and the CFL confirmation, sufficiently established adulteration and misbranding under the PFA Act, and that cognizance based on those reports was valid. The defense asserts proper application of Section 23(1A) requirements and that the appellate court’s conclusions should be upheld, leading to the conviction and sentence being sustained.

Contentions of Respondents

The respondents contend that the evidence, including Form-III and the CFL report, supports conviction for adulteration and misbranding. They argue that the misbranding charge (2(ix)(k), 7(ii), 16(1)) was properly added and proven, and that the appellate court’s partial acquittal of certain offences does not negate the overall guilt. They rely on established precedents and the correctness of laboratory analyses under the PFA Act to argue that the conviction should be sustained, subject to any procedural irregularities identified by applicable case law.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pepsico India Holdings Pvt. Ltd. v. Food Inspector and another	2010 (4) KHC 767	Positive	Cited authority used to support the proposition that Form-III evidence must comply with Section 23(1A)(ee)/(hh); reliance on an improper public analyst report renders cognizance based on it illegitimate, leading to an illegal conviction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942** **Crl.Rev.Pet.No.179 OF 2005(B)** **AGAINST THE JUDGMENT IN CRA 118/2003 DATED 09-11-2004 OF ADDITIONAL SESSIONS COURT, THODUPUZHA** **ST 498/2000 DATED 07-04-2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI** ## **REVISION PETITIONER/APPELLANT/3rd ACCUSED:** **K.M.VINOD, S/O.MADHAVAN, KOORALIKOTTA HOUSE, METHAL.P.O., PERUMBAVOOR, ERNAKULAM.** **BY ADVS. SRI.SANTHOSH SUBRAMANIAN SRI.SHERRY J. THOMAS SRI.S.SREEKUMAR(NORTH PARAVUR) SRI.E.A.THANKAPPAN** ## **RESPONDENTS/COMPLAINANT/STATE:** **1 FOOD INSPECTOR, THODUPUZHA CIRCLE, THODUPUZHA. 2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.179 of 2005 ..2.. ## **ORDER** Dated this the 13[th] day of October, 2020 This criminal revision petition is directed against the judgment dated 09.11.2004 in Crl.A.No.118/2003 on the file of the Additional Sessions Court, Thodupuzha. The revision petitioner was the 3[rd] accused in S.T.No.498/2000 on the file of the Judicial First Class Magistrate Court, Idukki and the appellant in Crl.A.No.118/2003. 2. The original complaint was filed by the Food Inspector, Thodupuzha Circle against A1 to A4 alleging commission of offences punishable under Sections 2(ia) (m), 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the PFA Act') and the Rules framed thereunder. 3. The case of the complainant is that on 23.11.1999, he had purchased three bottles of pooja ghee from the bakery of the 1[st] accused situated at Vazhathopu Crl.R.P.No.179 of 2005 ..3.. Grama Panchayat which is within his jurisdiction in accordance with law. After complying with requisite formalities, three bottles of pooja ghee were sealed in the presence of the 1[st] accused. Thereafter, the 1[st] accused produced the purchase bill to prove that he had purchased the said food item from the 2[nd] accused. A part of the sample was sent to the Public Analyst for analysis. On 17.1.2000, the Public Analyst forwarded Form-III report through the Local Health Authority stating that the sample of ghee sent for analysis was adulterated. The 3[rd] accused is the nominee of the manufacturer. 4. During the proceedings, the 3[rd] accused exercised his right to get the second sample analysed through the Central Food Laboratory. On analysis the Central Food Laboratory sent a report stating that the sample of ghee sent for analysis was adulterated as well as misbranded. Crl.R.P.No.179 of 2005 **==> picture [22 x 8] intentionally omitted <==** 5. On the appearance of the accused 1 to 4 before the court, the 2[nd] accused filed an application to implead the 5[th] accused on the allegation that he had purchased the said ghee from the 5[th] accused. The said application was allowed and the 5[th] accused was impleaded. 6. In the meanwhile, the complainant filed an application to amend the charge and incorporate Section 2 (ix)(k). In view of the CFL report the said application was allowed and an offence of selling misbranded food article was also added to the charge. 7. During the trial, PWs.1 to 3 were examined and marked Exts.P1 to P26 on the side of the complainant. DWs.1 and 2 were examined and marked Exts.D1 to D3 on the side of the accused. 8. By its judgment dated 07.04.2003 the learned Magistrate found the accused 1, 2 and 5 not guilty of the offences punishable under Section 2(ia)(m), 7(ii), 16(1) Crl.R.P.No.179 of 2005 **==> picture [22 x 8] intentionally omitted <==** (a)(i), 2(ix)(k) of the PFA Act and accordingly they were acquitted. Since the 4[th] accused was the manufacturer, the trial court maintained conviction against the nominee who is the 3[rd] accused. The 3[rd] accused was convicted and sentenced for the offences punishable under Section 2(ia) (m), 7(i) and 16(1)(a)(i) and 2(ix)(k) of the PFA Act. The 3[rd] accused was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- for the commission of offences punishable under Section 16(1)(a)(i) of the PFA Act in default to undergo simple imprisonment for two months more. Further the 3[rd] accused was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.500/- for the commission of the offence under Section 16(1) of the PFA Act and in default to undergo simple imprisonment for one more month. Crl.R.P.No.179 of 2005 ..6.. 9. In appeal, the appellate court by its judgment dated 09.11.2004 allowed the appeal in part and found the 3[rd] accused not guilty for the offence punishable under Section 2(ia)(m), 7(i) and 16(1)(a)(i) of the PFA Act and accordingly he was acquitted thereunder. However, he was found guilty for the offence punishable under Section 2(ix) (k), 7(ii) and 16(1) of the PFA Act and he was convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for one more month. 10. Heard both sides. 11. The prosecution was initiated based on Form-III report received from the Public Analyst. Form-II report also confirmed the finding contained in the Form-III report. However, it is stated that the food item purchased was misbranded as well. In **Pepsico India Holdings** Crl.R.P.No.179 of 2005 ..7.. ## **Pvt.Ltd. v. Food Inspector and another (2010 (4)** **KHC 767)** , the Apex Court held that the laboratories where sample of articles of food for adulteration may be analysed by the Public Analyst in accordance with Section 23(1A) (ee) and 23(1A)(hh) of the PFA Act, 1954. FormIII report in this case was not obtained in accordance with Section 23(1A)(ee) and 23(1A)(hh) of the PFA Act. Hence the lodging of the complaint before the trial court itself was based on an erroneous report of the public analyst and the trial court went wrong in taking cognizance of the offences against the accused. Hence the conviction and sentence imposed against the revision petitioner/3[rd] accused is manifestly illegal and is liable to be set aside. 12. The conviction and sentence imposed by the trial court and modified by the appellate court stand set aside. The revision petitioner/3[rd] accused is found not guilty of the offences ennumerated hereinabove and Crl.R.P.No.179 of 2005 **==> picture [22 x 8] intentionally omitted <==** accordingly he is acquitted. Cancelling his bail bond, this Court directs that he be set at liberty. If any fine amount is deposited during the pendency of the proceedings the same shall be released to the revision petitioner in accordance with law. Pending applications, if any, stand disposed of. In the result, the criminal revision petition is allowed. Sd/- **N.ANIL KUMAR, JUDGE** skj