Mohananan P. & Anr. v. Food Inspector, Kozhikode District and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 CRL.REV.PET NO. 66 OF 2011** **AGAINST THE JUDGMENT DATED 29/10/2010 IN CRA 71/2008 OF IIIRD** **ADDITIONAL SESSIONS COURT KOZHIKODE** **JUDGMENT DATED 16.1.2010 INCC 238/2005 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS, KOYILANDY,** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** - 1 MOHANAN.P. & ANOTHER, AGED 55, PONGILODY HOUSE, THALAKKULATHUR POST,, KOZHIKODE DISTRICT. - 2 LOKESHAN SO.CHATHUKUTTY KURUP, AGED 51, XIII/574, AKSHAYA BAKERY,, PARAMBATH, THALAKKULATHUR, KOZHIKODE DISTRICT(DIED) - *3 VASANTHA K., AGED 49, W/O LATE LOKESHAN, PULIYATHADATH(H) THALAKULATHUR PO, KOZHIKODE DISTRICT 673317 - *4 VIPIN LOKESH, AGED 25, S/O LATE LOKESHAN, PULIYATHADATH(H) THALAKULATHUR PO, KOZHIKODE DIST- 673317 - *5 VIPINA LOKESH, AGED 22, D/O LATE LOKESHAN, PULIYATHADATH(H) THALAKULATHUR PO, KOZHIKODE DIST- 673317 *ADDITIONAL PETITIONERS 3 TO 5 ARE IMPLEADED AS PER ORDER DATED 10.8.2020 IN CRL.M.A 1823/16 BY ADVS. SRI.K.K.JAYARAJ NAMBIAR - SMT.RAMYA PRASAD ## **RESPONDENTS/RESPONDENTS-COMPLAINANT & STATE:** - 1 FOOD INSPECTOR, KOZHIKODE DISTRICT. - 2 STATE OF KERALA REPRESENTED HIGH COURT OF KERALA,,ERNAKULAM. SRI SANAL P RAJ,PP THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.66/2011 ## -:2:- ## O R D E R Dated this the 25th day of November, 2021 This revision petition is directed against the judgment dated 29/10/2010 in Crl.Appeal No.71/2008 on the file of the III[rd] Additional Sessions Court, Kozhikode (for short, the appellate court) confirming the judgment dated 16/1/2010 in CC No.238/2005 on the file of the Judicial First Class Magistrate Court, Koyilandy (for short, the trial court). 2. The revision petitioners are the accused Nos.1 and 2. They faced trial for the offence punishable under Section 16(1-A) (i) read with Sections 2(ia)(j) and 7(i)(v) of the Prevention of Food Adulteration Act (for short, the PFA Act) and Rule 29 of Prevention of Food Adulteration Rules (for short, the PFA Rules) and the second accused also faced trial under Section 16(1)(a)(ii) of the PFA Act read with Rule 50 of the PFA Rules. 3. The case of the prosecution in short is that on 23/9/2004 at about 11.00 a.m, PW1, the Food Inspector of Kozhikode Circle inspected Akshaya Bakery at Parambath, Crl.R.P.No.66/2011 -:3:- Thalakkulathur, functioning in Door No.TP XIII/574 belonging to the second accused and purchased 600 grams of banana chips from the first accused who was found conducting sale there. He prepared samples in accordance with law and sent the same for examination by public analyst. The report of the public analyst indicated that the sample did not confirm with the standard prescribed and it contained synthetic food colour “ _tartrazine_ ” and, hence, adulterated. The PFA licence of the shop stood in the name of the second accused. On receipt of the report of the public analyst that the sample was adulterated, prosecution was launched against the first and second accused. 4. The accused Nos.1 and 2 appeared at the court below. The particulars of the offences were read over and explained to the accused. They pleaded not guilty. After hearing both sides, charge was framed by the trial court against the accused. The charge was read over and explained to them who pleaded not guilty. On the side of the prosecution, PW1 to PW4 were examined and Exts.P1 to P20 were marked. After trial, the trial court found both the accused guilty under Sections 16(1-A)(i) read with 2(ia)(j) and 7(i)(v) of the PFA Act and Rule 29 of the Crl.R.P.No.66/2011 -:4:- PFA Rules. The accused No.2 was further found guilty for violation of Rule 50 of the PFA Rules and they were convicted for the said offence. The accused Nos. 1 and 2 were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each for the offence under Sections 16(1-A)(i) read with 2(ia)(j) and 7(i)(v) of the PFA Act and Rule 29 of the PFA Rules. The accused No.2 was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/- for the offence punishable under Rule 50 of the PFA Rules with Section 16(1)(a)(ii) of the PFA Act. In appeal, the appellate court confirmed the conviction and the substantive sentence was modified from rigorous imprisonment to simple imprisonment. In all other respects, the judgment of the trial court was confirmed. Aggrieved by the conviction and sentence of both the courts below, the accused 1 and 2 preferred this revision petition. 5. During the pendency of this revision, the second accused died. His legal heirs were impleaded as revision petitioners 3 to 5. 6. I have heard Sri.K.K.Jayaraj Nambiar, the learned Crl.R.P.No.66/2011 -:5:- counsel for the revision petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor. 7. Assailing the impugned judgment, the learned counsel for the revision petitioners mainly argued that in the absence of any prescribed or validated method of analysis under Section 23(1A)(ee) and (hh) of the PFA Act, Ext.P10 report of the public analyst could not be relied on and the conviction based on the said report is unsustainable. The learned counsel relied on the decision of the Apex Court in _**Pepsico India Holdings (P) Ltd. v. Food Inspector**_ [(2011) 1 SCC 176], the judgment of the learned Single Judge of this Court in _**Gopalakrishnan v. Food Inspector**_ (2013 (3) KLT 455) and the judgment of the Division Bench of this court in _**Rasheed N.K. v. Food Inspector, Thalasserry and Another**_ (2016 (2) KHC 679). According to the learned counsel, no rules have been framed at the relevant time under Section 23(1A)(ee) and (hh) of the Act by the Central Government defining the methods of analysis for conducting the test and also defining the laboratory where the sample of article of food or adulterants could be analysed by the public analyst under the Act. Ext.P10 report submitted by the public analyst, Crl.R.P.No.66/2011 -:6:- following whatever method they choose cannot be relied on to sustain the conviction against the accused under Section 16(1-A) (i) read with Sections 2 (ia)(j) and 7(i)(v)) of the PFA Act, added the learned counsel. 8. In _**Pepsico**_ (supra), the Apex Court has held that it is mandatory for the Central Government to prescribe laboratories under Section 23(1-A)(ee) for testing of food samples/adulterants, and to prescribe methods of analysis under Section 23(1-A)(hh). The learned Single Judge of this Court in _**Gopalakrishnan**_ (supra) following _**Pepsico**_ (supra) held that since laboratories are not defined for analysis by the public analyst and the methods of analysis were not then defined, the report of the public analyst cannot be relied on to sustain the conviction. An argument was raised before the Court that the dictum laid down in _**Pepsico's case**_ (supra) was confined to the question regarding the detection of the percentage of carbofuran in the sample of pepsi involved in the said offence. Negativing the said contention, it was held that the dictum laid down in the said case is applicable to all the cases where food articles were analysed by the public analyst in the absence of defined Crl.R.P.No.66/2011 -:7:- laboratories where samples of food adulterants could be analysed by the public analyst as contemplated under Section 23(1A)(ee) and in the absence of a definite method of analysis as contemplated under Section 23(1-A)(hh) of the PFA Act. Again the Division Bench of this Court in _**Rasheed N.K.**_ (supra), answering a reference held that wherever the analysis has to be conducted from a laboratory to find whether the particular sample of item of the particular food article is adulterated, to form the basis for initiation of the prosecution under the PFA Act, the report of the analyst in relation to that sample must be one conducted in a laboratory defined under Section 23(1A)(ee) and since no such laboratory was defined till the repealing of the PFA Act, wherever an analysis from a laboratory was inevitable for making a report regarding the item concerned as adulterated, there cannot be any successful prosecution in the absence of such a report. It was further held that if the analysis was conducted by the public analyst under the PFA Act in a laboratory not defined in terms of Section 23(1A)(ee), in the light of _**Pepsico's case**_ (supra), no prosecution will lie based on a report made after such an analysis. Crl.R.P.No.66/2011 -:8:- 9. Coming to the facts of the present case, Ext.P10 would show that the method of analysis as per which the public analyst has found synthetic food colour “ _tartrazine_ ” is present in the sample is ISI method. The sampling was done on 23/9/2004 and the analysis was done on 15/10/2004. There is no case for the prosecution that the ISI method is a method defined as per the provisions of the Act as on the date of sample or on the date of analysis. For the reasons stated above, I hold that the dictum laid down by the Apex court in _**Pepsico's case**_ (supra), followed by the learned single Judge of this court in _**Gopalakrishnan**_ (supra) and the Division Bench of this Court in _**Rasheed**_ (supra) are squarely applicable to the facts of the case inasmuch as the laboratories are not defined for the analysis by the public analyst and the methods of analysis were not thus defined. Thus, the argument of the learned counsel for the revision petitioners that Ext.P10 cannot be relied on is only to be accepted. Hence, the impugned judgments convicting and sentencing the accused under Section 16(1-A)(i) read with Sections 2(ia)(j) and 7 (i)(v) of the PFA Act and Rule 29 of the PFA Rules based on Ext.P10 cannot be sustained. The accused are entitled for acquittal. Crl.R.P.No.66/2011 -:9:- The first accused is acquitted of all the offences charged against him. The second accused is acquitted of the offences charged against him under Section 6(1-A)(i) read with Sections 2(ia)(j) and 7 (i)(v) of the PFA Act and Rule 29 of the PFA Rules. However, the conviction against the accused No.2 for violation of Rule 50 of the PFA rules read with Section 16(1)(a) (ii) will stand. As stated already, the 2[nd] accused is no more. The substantive sentence imposed on accused No.2 under Rule 50 of the PFA Rules with Section 16(1)(a)(ii) of the PFA Act stood abated u/s 294(1) of IPC on the death of the 2[nd] accused. It is submitted by the learned counsel for the revision petitioners that the fine imposed under Section 6(1-A)(i) read with Sections 2(ia)(j) and 7 (i)(v) of PFA Act and Rule 29 of PFA Rules has already been paid. The revision petition is allowed as above. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **kp True copy** P.A. To Judge