R. Kuttan Pillai and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937 Crl.Rev.Pet.No. 663 of 2003 ( ) -------------------------------AGAINST THE JUDGMENT IN CRA 91/1994 of ADDL.SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA DATED 10-01-2003 AGAINST THE ``JUDGMENT IN CC 425/1991 of J.M.F.C., ADOOR, DATED 29-10-1994 REVISION PETITIONER(S)/ACCUSED 1 TO 6, 8 AND 9: ---------------------------------------------1. R.KUTTAN PILLAI, KALLOORVILA PUTHEN VEEDU, CHOORAKKODU P.O., ADOOR. 2. N.P.RAJAN, NELLIMOOTTIL THAZHATHUMON, MANAKKALA P.O., ADOOR. 3. R.RAMACHANDRAN PILLAI, LEELA SADANAM, CHATHANNOOPUZHA, CHOORAKODU P.O., ADOOR. 4. MATHEW VEERAPPALLY, VEERAPPIL VEEDU, PANNIVIZHA, ADOOR. 5. M.PONNACHAN, BLAHAYIL VEEDU, KOKANALLOOR, MANAKKALA P.O., ADOOR. 6. G.KUTTAN PILLAI, PALAVILAYIL, MOONNALAM, ADOOR P.O. 7. K.DIVAKARAN, SREE BHAVAN, PANIVIZHA, ADOOR P.O. 8. THE ADOOR MILK SUPPLIES CO-OPERATIVE SOCIETY LTD., REG.NO.3962, REPRESENTED BY SECRETARY R.KUTTAN PILLAI, KALLOOR VILA, PUTHEN VEEDU CHOORAKKODU P.O., ADOOR. BY ADV. SRI.SEBASTIAN PHILIP RESPONDENT(S)/COMPLAINANT: -----------------------THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. R. GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## B. SUDHEENDRA KUMAR, J. ..................................................... Crl.R.P. No. 663 of 2003 ..................................................... Dated this the 11[th] day of January, 2016 ## ORDER The accused Nos. 1 to 6, 8 and 9 on the files of the Court of the Judicial Magistrate of First Class, Adoor, have filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 2(ia) (m), 7(i) and 16 (ia)(i) of the Prevention of Food Adulteration Act, 1954 and Rule 5 Appendix B. A.11.01.01 and A.11.01.11 of the PFA Rules, 1955. 2. Heard. 3. The prosecution allegation can be briefly stated thus:- Crl.R.P. No. 663 of 2003 2 :- On 19-4-1991 at about 3.15 p.m., PW1 the Food Inspector purchased one litre of cow milk from the first accused. The 9th accused was the Society and the other accused persons were the members of the Board of Directors of the Society. After complying with the legal formalities, samples were taken. Thereafter, one of the samples was sent for analysis to the Public Analyst. The Public Analyst filed report stating that the sample did not conform to the standard prescribed for cow milk under the Prevention of Food Adulteration Rules, 1956 and therefore, the same was adulterated. Thereafter, on the request of the accused, the nd 2 sample was sent to the Central Food Laboratory for analysis. Ext.P13 certificate of the Central Food Laboratory would show that the sample did not conform to the standard prescribed for cow milk as per PFA Rules. 4. Before the trial Court, PW1 to PW3 were examined and Exts. P1 to P15 were marked for the Crl.R.P. No. 663 of 2003 3 :- prosecution. DW1 to DW3 were examined and Exts. D1 and D1 (a) were marked on the side of the revision petitioners. 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. P13 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 [(2011) 1 SCC 176] to buttress his argument. 6. In this case, Admittedly, the laboratory for the Crl.R.P. No. 663 of 2003 4 :- 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. P13 certificate 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 this Court in Gopalakrishnan v. Food Inspector [2013 (3) KLT 455], the court relied on the decision of the Supreme Court in Pepsico (supra) and Crl.R.P. No. 663 of 2003 5 :- 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 (supra), the conviction 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. In the result, this Revision Petition stands allowed setting aside the conviction and sentence passed by the courts below under Sections 2(ia) (m), 7(i) and 16 (ia)(i) of the Prevention of Food Adulteration Act, 1954, and Crl.R.P. No. 663 of 2003 6 :- Rule 5 Appendix B. A.11.01.01 and A.11.01.11 of the PFA Rules, 1955, and the revision petitioners are acquitted for the said offence. The bail bond of the revision petitioners stands cancelled and they are set at liberty. **Sd/- B. SUDHEENDRA KUMAR, JUDGE.** ani/13/6/16 _/true copy/_ _P.S. to Judge_ Crl.R.P. No. 663 of 2003 7 :- B. SUDHEENDRA KUMAR, J. ..................................................... Crl.R.P. No. 663 of 2003 ..................................................... Dated this the 11[th] day of January, 2016 ORDER