State of Kerala v Sai Ramana Rice Industries

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945** **CRL.REV.PET NO. 1629 OF 2014** **AGAINST THE ORDER/JUDGMENT CC 105/2007 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS ,MATTANNUR** ## **REVISION PETITIONER/S:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE FOOD INSPECTOR KUTHUPARAMBA CIRCLE, KEEZHUR CHAVASSREY PANCHAYATH. BY ADV GOVERNMENT PLEADER ## **RESPONDENT/S:** M/S.SAI RAMANA RICE INDUSTRIES SETTIPALAM, MIRIYALGUDA NALGONDA, ANDRA PRADESH. BY ADVS. SRI.S.ABHILASH SMT.BINDU GEORGE SRI.K.SIJU ## **OTHER PRESENT:** PP SMT NIMA JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.REV.PET NO. 1629 OF 2014 2 Dated this the 30[th] day of October, 2023 ## **O R D E R** The revision petition is filed questioning the legality, propriety and correctness of the judgment in C.C.No.105/2007 of the Court of the Judicial First Class Magistrate, Mattannur (Trial Court), finding the respondents not guilty and consequentially acquitting them under Section 248(1) of the Code of Criminal Procedure (in short, 'Code'). The 2[nd] revision petitioner was the complainant and the respondent was the 4[th] accused before the Trial Court. ## Prosecution case in brief: ## 2. The prosecution case is that, on 23.12.2002, the 2[nd] revision petitioner had inspected a grocery shop named PCM Stores in Keezhur Chavassery Grama Panchayath and had CRL.REV.PET NO. 1629 OF 2014 3 purchased 750 gms of rice from the 1[st] accused. He sent one of the samples for analysis to the Public Analyst, Kozhikode, who by Ext.P13 Form III report found that the sample was adulterated, as it was coated with inorganic iron pigment oxide. The 2[nd] accused was the licensee and the 3[rd] accused was the owner of the shop. Thus the accused 1 to 3 committed the above offence. 3. The accused 1 to 3 denied the substance of accusation read over to them. In the trial, the prosecution examined PWs 1 to 4 and marked Exts.P1 to P27 in evidence. In defence evidence, the accused examined DW1 and marked Exts.D1 to D3. 4. Thereafter, the 3[rd] accused filed an application under Section 20(A) of the Act to implead the distributor of the article as additional accused. The Trial Court allowed the application and impleaded the 4[th] accused. CRL.REV.PET NO. 1629 OF 2014 4 Thereafter, denovo trial was conducted and PW1 was recalled and examined against A4. In the meantime, the 2[nd] accused died and the case against him was dismissed as abated. 5. The Trial Court, after analysing the materials placed on record, by the impugned order acquitted the accused 1 and 3, dismissed the case as abated as against the 2[nd] accused and discharged the 4[th] accused in view of the law laid down by the Honourable Supreme Court in **Pepsico India Holdings Pvt. Ltd v. Food Inspector and Another** [2010 (4) KHC 767] . 6. It is aggrieved by the discharge of the 4[th] accused that the present revision petition is filed. 7. Heard; Smt.Nima Jacob, the learned Public Prosecutor appearing for the revision petitioners and Sri.S.Abhilash, the learned Counsel appearing for the respondent. CRL.REV.PET NO. 1629 OF 2014 5 8. The learned Public Prosecutor argued that the Trial Court has gone wrong in passing the impugned order because the law laid down in **Pepsico India Holdings Pvt. Ltd** (supra) only pertains to sweetened carbonated water and not to the facts of the case on hand. Therefore, the learned Magistrate has gone wrong in discharging the 4[th] accused. Hence, the revision petition may be allowed and the impugned order may be set aside. 9. The learned Counsel appearing for the respondent supported the judgment and contended that this Court in **Rasheed v. Food Inspector** [2016 (2) KLT 390] has categorically laid down the law that the law declared in **Pepsico India Holdings Pvt. Ltd** (supra) is applicable to all cases arising out of the Prevention of Food Adulteration Act, where the sample is not tested in a laboratory recognised by the Central Government. Hence, the revision petition is only to CRL.REV.PET NO. 1629 OF 2014 6 be dismissed. 10. The Hon’ble Supreme Court rendered the judgment in **Pepsico India Holdings Private Ltd.** (supra) on 18.11.2010. Subsequent to the pronouncement of the judgment, there were several cases filed before this Court to quash the proceedings initiated under the Act. 11. There was cleavage of opinion and divergent views taken by three learned Single Judges of this Court in interpreting the ratio decidendi in **Pepsico India Holdings Private Ltd.** (supra). 12. Due to cleavage of opinion in interpreting the above judgment, a bunch of cases were referred to a Division Bench of this Court for an authoritative pronouncement. 13. Accordingly, in **Rasheed v. Food Inspector** (supra), a Division Bench of this Court, CRL.REV.PET NO. 1629 OF 2014 7 on a threadbare analysis of the law laid down in **Pepsico India Holdings Private Ltd.** (supra), has answered the reference in the following manner: “18. Bearing in mind the fact that the Hon'ble Apex Court in Pepsico's case (supra) held that the provisions under S.23(1A)(ee) and (hh) are not directory and that this Court has erred in holding that they are only enabling provisions we will proceed further to answer the referred questions. For answering the terms of reference a broad understanding of the said declaration is necessary. **When once the Hon'ble Apex Court held that the said provisions are not directory and the failure to adhere to the provisions cannot be said to be not fatal to the prosecution it has to be understood and applied in all cases where a public analyst was to carry out an analysis and to give a report to form the basis for launching the prosecution. Thus, evidently, for that purpose the report should be one made after conducting an analysis in a laboratory defined under S. 23(1A)(ee).** It is to be noted that after the decision in Pepsico's case (supra) by the Hon'ble Apex Court a notification was followed whereby Rule in relation to S.23(1A)(hh) was framed as R. 4(9) of the PFA Rules. **Thus, in the light of Pepsico's case (supra) in order to be reliable and to be taken the basis for the purpose of launching prosecution a report by a public analyst must be one made after conducting an analysis in a laboratory defined under S.23(1A)(ee) of the Act. In that context the indisputable common case is that till the repealing of 1954 Act no laboratory was defined in terms of the provision under S.23(1A)(ee). If that be so, there could not have been any question of conducting an analysis by a public analyst under the PFA Act in a laboratory defined under S. 23(1A)(ee) of the PFA Act** . In view of the above findings and conclusions we will answer the questions referred. First question referred is as follows: (1) Could all the prosecutions under the Act of 1954 be stifled by raising a contention that the laboratories or methods of analysis were not defined? In the light of what we have held herein before the said it can only CRL.REV.PET NO. 1629 OF 2014 8 be answered in the following manner: **Wherever an 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 prosecution under the PFA Act the report of the analyst in relation to that sample must be one conducted in a laboratory defined under S.23(1A) (ee). 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 item concerned as adulterated there cannot be any successful prosecution in the absence of such a report. In such circumstances the prosecution proceedings have to be terminated for the failure to define laboratories in terms of S. 23(1A)(ee) and the consequential failure to conduct an analysis of the particular sample by the public analyst from such a laboratory.** In other words taking note of the nature of the food article involved and the method to be employed to find out the adulteration if an analysis from a laboratory is not at all required in such circumstances the prosecution cannot be stifled on the ground that the laboratories in terms of provisions under S.23(1A)(ee) were not defined. It cannot be said that all the prosecutions under the 1954 Act should be stifled owing to the failure to define laboratories in terms of S.23(1A)(ee) as there may be cases registered against persons for contravention of the provisions under S.16(1)(c), S.16(1)(d) and S.14A (Prevention of Food Adulteration Act, 1954). So also a case where the Article in food was lifted and sent for analysis prior to the introduction of the provisions under S.23(1A)(ee) viz. 01/04/1976 cannot be stifled as anything previously done could not be invalidated owing to the failure to define laboratory in terms of S.23(1A)(ee) in view of the provisions under S.23(2). **In the context of the term of reference No. 1 it is to be noted that subsequent to Pepsico's case (supra) the method of analysis was, in fact, defined and it was brought into by incorporating R.9(4) in the PFA Rules with effect from 25/03/2008.** 19. The second question referred is as hereunder: (2) Is it proper to hold that since Central Government has not taken steps to effectuate S.23(1A)(ee) and (hh) of the Act of 1954, no prosecution will lie under the Act of 1954 even if it is established that the standards prescribed for various food items have been flouted? **In respect of items of food articles where, for holding that the standard prescribed for the same was flouted or it was not maintained if an analysis from a laboratory is** CRL.REV.PET NO. 1629 OF 2014 9 **inevitable in such cases also if the analysis was conducted by the public analyst under the PFA Act in a laboratory not defined in terms of S.23(1A)(ee), in the light of Pepsico's decision, no prosecution will lie based a report made after such an analysis.** The last question referred is follows: (3) Whether the ratio in Pepsico's case (supra) can be applied to all cases of alleged food adulteration under the Act of 1954 irrespective of the fact whether or not standards have been prescribed for food items? In cases where standard is prescribed or in respect of a food item to say that the said item of food is adulterated and to launch the prosecution, if an analysis from a laboratory by a public analyst is inevitable in such circumstances also the ratio in Pepsico's case (supra) will be applicable. In the light of the answers to the referred questions it has become absolutely unnecessary to go into the question referred herein before based on the decision in Narayana Reddiar's case which was declined to be referred. 20. Having answered the reference as above, we are of the view that the fate of the criminal revision petitions and the Crl MCs depend upon the question whether in respect the item of food involved in individual cases, the sample of which was collected, an analysis from a laboratory is required or not for holding the same as adulterated. **If the answer is in the affirmative necessarily in the absence of a report made after an analysis from a laboratory defined in terms of the provisions under S.23(1A)(ee) there can be no successful prosecution** . We will therefore, consider the individual cases in the aforesaid manner and in the light of the answers to the referred questions. Needless to say that if the answer to the aforesaid question in respect of a particular case is in the negative there can be no legal impediment in continuing with the prosecution. In view of the fact that till the repealing of the said Act no laboratories were defined in terms of S.23(1A)(ee) all those cases have to be decided based on a consideration as aforesaid.” (emphasis given by me) ## 14. The exposition of law in **Rasheed v.** **Food Inspector** (supra), following the CRL.REV.PET NO. 1629 OF 2014 10 declaration in **Pepsico India Holdings Private Ltd** (supra) leaves no room for any further interpretation on the question that, if an allegedly adulterated food sample is not analysed in a laboratory under Section 23(1-A)(ee) of the Act, the same is fatal to the prosecution and the prosecution has to necessarily fail. 15. In the case at hand, indisputably the prosecution was launched on the basis of Ext.P13 Form III report of the Public Analyst which found that the sample seized by the complainant was adulterated. Admittedly, the sample was not analysed in a laboratory notified by the Central Government under Section 23(1-A) (ee) of the Act. Thus, the ratio decidendi in **Pepsico India Holdings Private Ltd and Rasheed vs. Food Inspector** (supra) stands attracted. Hence, the finding of the learned Magistrate in the impugned CRL.REV.PET NO. 1629 OF 2014 11 order is in consonance with the law laid down by the Honourbale Supreme Court and this Court. I do not find any error, illegality or impropriety in the conclusion arrived at by the learned Magistrate in the impugned order. The revision petition is devoid of any merit and is resultantly dismissed. **Sd/-** **C.S.DIAS,JUDGE** rkc/30.10.23