P.M. Scaria v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929** **Crl.Rev.Pet.No. 745 of 2000(P)** **------------------------------** **CRL.A.No.192/95 OF THE V ADDL. SESSIONS COURT, ERNAKULAM C.C.313/90 OF THE JUDL. FIRST CLASS MAGISTRATE COURT, KOLENCHERRY** **----------------------** ## **REVN. PETITIONER:** **-----------------------** **P.M. SCARIA., THEKKEKUZHIYIL OIL INDUSTRIES, RAMAMANGALAM. P.O.** **BY ADV. SRI.T.D.ROBIN** **RESPONDENT:** **----------------** **STATE OF KERALA, REPRESENTED BY THE FOOD INSPECTOR, EDAPPALLY CIRCLE.** **BY PUBLIC PROSECUTOR SRI.C.M.NAZAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## A.K.BASHEER,J ========================= Crl.R.P.No.745 of 2000 ========================== Dated this the 13[th] day of March, 2008 ## ORDER The trial court found the petitioner guilty under Section 2(i a) (a) (m) read with Section 16 (1) (a) (i) (ii) of Prevention of Food Adulteration Act, 1954 and he was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for 45 days. The above order passed by the trial court was confirmed by the sessions Court in appeal. 2. Petitioner challenges the above concurrent order of conviction and sentence in this revision petition. 3. The prosecution case in brief was that on June 22, 1990 PW2, the Food Inspector had purchased two packets of 'Queens Brand' coriander powder from the provision store of accused No.1 after completing all the statutory formalities. The sample of food article which was sent for analysis to the Regional Analytical Laboratory was found adulterated. In the course of the process of purchase and sampling of the food article, the Food Inspector was informed that the coriander powder was Crl.R.P.745/2000 2 manufactured by the petitioner. The Food Inspector after verification of the relevant bills was satisfied that the bill produced by accused No.1 could be treated as warranty as provided under Rule 12 A of the Prevention of Food Adulteration Rules (for short the 'Rules'). Accordingly petitioner was also implicated and arraigned as accused No.2 in the case. 4. PWs.1 and 2 were examined and Exts.P1 to P18 and MO1 series were marked on the side of the prosecution. DWs.1 to 3 were examined and Exts.D1 to D3 were marked on the side of the defence. 5. The learned Magistrate after a careful evaluation of the oral and documentary evidence on record found accused No.1 not guilty and he was acquitted. Petitioner as manufacturer, was found guilty and accordingly convicted and sentenced. The above order of conviction and sentence was confirmed in appeal. Hence this revision petition. 6. Learned counsel for the petitioner contends that the courts below had committed serious illegality and irregularity in finding the petitioner guilty, particularly since the prosecution had totally failed to establish that he was the manufacturer of Crl.R.P.745/2000 3 the food article in question. It is further contended by the learned counsel that the order of conviction and sentence is totally vitiated and irregular in as much as the petitioner had not been given an opportunity to explain the case against him with reference to certain documents which were produced by the coaccused at the defence stage. The contention of the learned counsel is that the trial court had failed to question the petitioner under Section 313 of the Code of Criminal Procedure with specific reference to the so called incriminating materials which were pressed into service by the co-accused at the defence stage. 7. In the nature of the contentions raised by the learned counsel at the Bar, I do not deem it necessary to refer to the entire prosecution case, especially as to procedural formalities followed by the Food Inspector in the matter of purchase, sampling and other related matters. Suffice it to say that the Food Inspector had admittedly complied with all the statutory formalities. 8. It had also come out in evidence that copy of the notice was sent to the petitioner and thus he had got an Crl.R.P.745/2000 4 opportunity to avail of the statutory benefit available to him under Section 13(2) of the Act. It is also not disputed that petitioner had not disowned Ext.P14 purchase bill produced by accused No.1 before the Food Inspector at the time of purchase of the food article. Thus, it had prima facie come out in evidence that accused No.1 was entitled to get the benefit of Section 19(2) read with Rule 12 A of the Act and Rules. 9. After closure of the prosecution evidence accused No.1 had examined the Executive Officer of the Local Panchayat as DW1. This witness produced Ext.D1 Receipt Book pertaining to remittance of licence fee by traders, manufacturers etc. Ext.D1(a) receipt dated April 30, 1990 showed that a sum of Rs.36.75 had been remitted at the Panchayat in the name of the petitioner towards D&O licence for paddy husking and running a flour mill and oil mill for the year 1990-91. This witness had also produced Ext.D2 which was stated to be a copy of the complaint allegedly filed by the petitioner before the Minister for Health in the Government of Kerala against PW2, Food Inspector. According to accused No.1, this document clearly showed that petitioner had been running Thekkekuziyil oil industries at Crl.R.P.745/2000 5 Ramamangalam since the said complaint was written in the letterhead bearing the name of the above concern. In this context it may be remembered that MO1 series polythene packets which contained coriander powder also bore the name of Thekkekuzhiyil Spices. 10. It is contended by the learned counsel that the petitioner had nothing to do with Thekkekuzhiyil Oil Industries at the relevant point of time. Petitioner had contended before the courts below also that he had nothing to do with the establishment in the name of “Thekkekuzhiyil Spices” which had allegedly manufactured 'Queens Brand' coriander powder. But petitioner did not stop there. He summoned the Executive Officer of the Panchayat once again as his witness. This witness, who was again examined as DW3 deposed that the Panchayat had launched prosecution against the petitioner for his failure to remit the licence fee in respect of a rice mill, flour mill, oil mill etc. for the year 1990-91 and 1991-92. DW3 further stated that petitioner was issued a licence to run a rice mill for the year 1989-90; but he had not renewed the said licence thereafter. DW3 further stated that after 1989-90 petitioner was not granted Crl.R.P.745/2000 6 a licence to run any industry in the Panchayat, though in the year 1990-91 he had applied for licence which was declined. 11. Learned counsel concedes that the evidence of the Executive Officer of the Panchayat who was examined at the instance of accused No.1 as well as the petitioner as DW1 and DW3 respectively, had brought in some incriminating evidence against him which largely influenced the learned Magistrate to hold the petitioner guilty. But the learned Magistrate did not choose to question the petitioner after examination of the defence witnesses. Petitioner was not afforded any opportunity to explain his case with reference to Exts.D1 to D3 which were marked in the case through the defence witnesses. Learned counsel submits that the failure of the learned Magistrate to question the petitioner under Section 313 of the code after closure of defence evidence has caused grave prejudice to him. Learned counsel has invited my attention to a few decisions in this connection; one of which is reported in **Bibhuti Ranjan Nandy v. The State (1968 Cri.L.J 673) (Calcutta High Court).** In this decision a Division Bench of the Calcutta High Court held that questions to be put to an accused under Section Crl.R.P.745/2000 7 342 (prior to the amendment of the Code in 1973) would depend on the evidence that had been adduced in the case. Though every error or omission in observing the provisions of Section 342 would not necessarily vitiate a trial, in certain cases it may lead to gross miscarriage of justice. It is mandatory that the accused is given an opportunity to explain the circumstances obtaining against him in the evidence. 12. In **Nirmal Kumar Ghosh v. The King (A.I.R.(36) 1949 Calcutta 238)** it was held that the court must ensure that the accused had been given an opportunity to explain the circumstances which appeared against him in the course of the trial. 13. In **re S.Cariappa (A.I.R. (37) 1950 Madras 453)** it was reiterated that the object of examining the accused under Section 342 was to enable him to explain the circumstances appearing in the evidence against him. In the above case the question that arose for consideration was whether the accused had to be questioned again after examination of the court witnesses. The High Court took the view that in the facts and circumstances of that case no prejudice had been caused to the Crl.R.P.745/2000 8 ## accused due to his non-examination. 14. The short question that arises for consideration in this case is whether the petitioner had succeeded in establishing that prejudice had been caused to him because of the failure of the trial court to question him under Section 313 Cr.P.C after examination of the defence witnesses. It cannot be disputed that Exts.D1 and D2 were marked in the case at the behest of accused No.1, who had examined the two witnesses in an attempt to establish that petitioner had been running the manufacturing unit in question. Ext.D1(a) revealed that licence fee had been remitted in the name of the petitioner at the Panchayat for the purpose of running a flour and oil mill. In Ext.D1(a) receipt petitioner's name was clearly indicated followed by the name of the firm Thekkekuzhiyil Oil Industries. But the grievance of the petitioner is that he had not got an opportunity to explain the circumstances which appeared against him in the case pursuant to production of Ext.D1 (a). It is true that petitioner had examined DW3 (the same witness who had turned up before the court as witness of accused No.1). But still the fact remained that petitioner was not questioned with regard Crl.R.P.745/2000 9 to the documents marked at the behest of the co-accused. Those documents obviously had a bearing in the case. Having regard to the entire facts and circumstances, I am satisfied that prejudice had been caused to the petitioner because of the failure of the trial court to question him under Section 313 of the Code after examination of DW1. 15. The next question to be considered is whether the case has to be remitted to the court below to cure the defect or irregularity. It is pointed out by the learned counsel that the alleged offence was committed way back in the year 1990. He also invites my attention to the data given by the public analyst in his report. Undoubtedly the report indicates that only total ash was slightly higher than the prescribed standard (8.5% as against 7% prescribed in A.05.08.01). 16. Undoubtedly, it was the duty of the prosecution to establish that petitioner was the manufacturer. It is true that accused No.1 had arrogated to himself the responsibility to prove that the petitioner had obtained licence from the Panchayat to run a flour mill. But the said evidence did not conclusively establish that petitioner was in fact running the Crl.R.P.745/2000 10 concern during the relevant period. In the absence of any satisfactory conclusive evidence against the petitioner, I am satisfied that he is entitled to get the benefit of doubt. In my view no useful purpose will be served if the case is remitted back to the trial court. Therefore the order of conviction and sentence passed against the petitioner is set aside. The criminal revision petition is allowed. A.K.BASHEER,JUDGE dvs