N.S. Krishna Pillai v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937 Crl.Rev.Pet.No. 3112 of 2006 ( ) --------------------------------- Crl.A 97/2001 of ADDL.SESSIONS COURT (FAST TRACK-IV),THIRUVANANTHAPURAM CC 359/1995 of J.M.F.C.-II,NEDUMANGAD ## REVISION PETITIONER(S)/APPELLANT/ACCUSED.: -------------------------------------------------------------------- N.S.KRISHNA PILLAI, S/O.SUBRAMANIAN, VILAYIL VEEDU, IRAYANADA PANAVOOR P.O., NEDUMANGAD. BY ADVS.SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP RESPONDENT(S)/RESPONDENT/COMPLAINANT.: ------------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.3112 of 2006 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of February 2016 ## O R D E R The accused in C.C.No.359 of 1995 on the files of the Judicial Magistrate of First Class - II, Nedumangad was convicted by the trial court under Sections 16(1)(a)(i) read with Sections 2(ia)(a)(f) and 7(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the P.F.A.Act') and Sections 16(i)(a)(ii) and 7(iii) of P.F.A. Act and Rule 50(1) of the Prevention of Food Adulteration Rules, 1955 (for short 'the P.F.A. Rules') and Rule 10 of Kerala P.F.A. Rules and sentenced him to simple imprisonment for one year and fine of R.2,000/- under Section 16(i)(a)(i) read with Crl.R.P.3112 of 2006 **==> picture [29 x 13] intentionally omitted <==** Sections 2(ia)(a) and 7(i) of PFA Act. No separate sentence was awarded for for the offence under sections 16(i)(a)(ii) and 7(iii) of the PFA Act read with Rule 50(1) of PFA Rules and Rule 10 of the Kerala PFA Rules. 2. Heard. 3. The prosecution allegation can be briefly stated thus:- On 25.5.1995 at 11.30 a.m., PW1, the Food Inspector, purchased 750 gram of cow pea from the shop of the accused. After sampling as per rules, one of the samples was sent for analysis to the Public Analyst. The Public Analyst filed Ext. P9 report stating that the sample did not conform to the standards prescribed for the food grains under the P.F.A. Rules and therefore, the same was Crl.R.P.3112 of 2006 **==> picture [29 x 13] intentionally omitted <==** adulterated. 4. Before the trial Court, PW1 to PW6 were examined and Exts. P1 to P19 series were marked for the prosecution. No evidence was adduced on the side of 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. P9 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 Crl.R.P.3112 of 2006 : 4 : [(2011) 1 SCC 176] to buttress his argument. 6. In this case, admittedly, the laboratory for the 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. P9 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 Crl.R.P.3112 of 2006 : 5 : this Court in Gopalakrishnan v. Food Inspector [2013 (3) KLT 455], the court relied on the decision of the Supreme 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, in view of the decision in Pepsico India Holdings (supra), the conviction in this case cannot be sustained 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. Crl.R.P.3112 of 2006 : 6 : 7. In the said circumstances, the conviction and sentence passed by the courts below under Sections 16(1) (a)(i) read with 2(ia)(a)(f) and 7(i) of the PFA Act stand set aside. However, the courts below concurrently found that the revision petitioner sold the food articles without having a valid license under the P.F.A. Rules. There is no material before the court to show that the revision petitioner had any valid license under the provisions of P.F.A. Rules during the period in question. In the said circumstances, I find no reason to interfere with the verdict of guilty and conviction passed by the courts below under Sections 16(1)(a)(ii) and 7(iii) of the PFA Act read with Rules 50(1) of the PFA Rules and 10 of Kerala P.F.A. Rules. Crl.R.P.3112 of 2006 : 7 : 8. As regards the sentence, the learned counsel for the revision petitioner has pleaded for leniency. The revision petitioner was aged 38 years during the relevant time. Presently, the revision petitioner is aged 58 years. There is no previous conviction against the revision petitioner. Considering the facts and circumstances of the case, I am of the view that the revision petitioner shall be sentenced as provided under 2[nd] proviso to Section 16(1) of the P.F.A. Act. Accordingly, the revision petitioner is sentenced 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(1A)(ii) and 7(iii) of the PFA Act read with Rule 50(1) of PFA Rules and Rule 50(1) of Kerala PFA Rules, to Crl.R.P.3112 of 2006 : 8 : secure the ends of justice. Accordingly I order so. In the result, this revision petition stands allowed in part as above. The revision petitioner shall surrender before the trial court on 1.4.2016 to suffer the sentence. ## **Sd/-** **B.SUDHEENDRA KUMAR, JUDGE** _dl/9.2..2016 // True Copy // PA to Judge_