Suma Rajan Puthenvenglavil & Rajan P.N. Puthenvenglavil v. Food Inspector, Thodupuzha Circle, & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 14TH DAY OF MARCH 2016/24TH PHALGUNA, 1937 Crl.Rev.Pet.No. 1508 of 2013 () -------------------------------Crl.A 290/2008 of ADDITIONAL SESSIONS COURT(ADHOC-1), THODUPUZHA CC 114/2002 of C.J.M.,THODUPUZHA ## REVISION PETITIONER/APPELLANTS/ACCUSED: ----------------------------------------------------------------- 1. SMT. SUMA RAJAN PUTHENVENGLAVIL HOUSE, PUTHUPARIYARAM, KARIMKUNNAAM THODUPUZHA 2. RAJAN P.N PUTHENVENGLAVIL HOUSE, PUTHUPARIYARAM, KARIMKUNNAAM THODUPUZHA BY ADVS.SRI.SANTHOSH SUBRAMANIAN SRI.E.A.THANKAPPAN SRI.SHERRY J. THOMAS SRI.S.SREEKUMAR(NORTH PARAVUR) RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------------------------------------- 1. FOOD INSPECTOR, THODUPUZHA CIRCLE,THODUPUZHA P.O,PIN 685 584 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM KOCHI 682031 R1 & R2 BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.1508 of 2013 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of March 2016 ## O R D E R The accused Nos.1 and 2 in C.C.No.114 of 2002 on the files of the Chief Judicial Magistrate Court, Thodupuzha filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 16(1A)(i), 2(ia)(f)(h) (j) and 7(i) of the Prevention of Food Adulteration Act, 1954 and Rules 29 and 44A of the Prevention of Food Adulteration Rules, 1955 and Sections 16(i)(a)(ii) and 7(iii) of the Prevention of Food Adulteration Act, 1954 read with Rule 50(1) of the Prevention of Food Adulteration Rules, 1955. Crl.R.P.1508/2013 : 2 : 2. Heard. 3. The prosecution allegation can be briefly stated thus:- On 9.7.2002 at 12.30 p.m., PW1, the Food Inspector, purchased two packets, each packet contained 250 gram of dal, from the shop of the first accused. The second accused was the licensee of the said shop and the third accused was the whole sale dealer of the food item. After sampling as per rules, one of the samples was sent for analysis to the Public Analyst. The Public Analyst filed Ext. P13 report stating that the sample did not conform to the standard prescribed for the food item under the Prevention of Food Adulteration Rules, 1955 and therefore, the same was adulterated. Thereafter, on the Crl.R.P.1508/2013 : 3 : request of the accused, the second sample was sent to the Central Food Laboratory for analysis. Ext.P16 certificate of the Central Food Laboratory would also show that the sample did not conform to the standard prescribed for the food item and therefore, the same was adulterated. It was further alleged that the second accused sold the food item without having a valid licence under the PFA Rules. 4. Before the trial Court, PW1 to PW4 were examined and Exts. P1 to P24 series were marked for the prosecution. DW1 to DW4 were examined and Exts.D1 to D13 were marked for the revision petitioners. 5. The learned counsel for the revision petitioners has submitted that since no laboratory for the analysis of the food item was defined and no validated method of Crl.R.P.1508/2013 : 4 : analysis was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the PFA Act, Ext. P16 cannot be acted upon to hold that the food item purchased by the Food Inspector was adulterated. The learned counsel for the revision petitioners 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 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. P16 certificate of Central Food Laboratory cannot be acted upon to hold that the food item purchased in this case was adulterated in view of the Crl.R.P.1508/2013 : 5 : 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 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 Crl.R.P.1508/2013 **==> picture [29 x 13] intentionally omitted <==** learned Public Prosecutor. Even otherwise, the conviction under Sections 16(1A)(i), 2(ia)(f)(h)(j) and 7(i) of the Prevention of Food Adulteration Act and Rules 29 and 44A of the Prevention of Food Adulteration Rules, 1955, 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 said circumstances, the conviction and sentence passed by the courts below for the offence under Sections 16(1A)(i), 2(ia)(f)(h)(j) and 7(i) of the Prevention of Food Adulteration Act and Rules 29 and 44A of the Prevention of Food Adulteration Rules, 1955 stand set aside and the revision petitioners are acquitted for the said offence. Crl.R.P.1508/2013 : 7 : 7. The courts below concurrently found that the second revision petitioner sold the food item without having a valid licence under the P.F.A. Rules. No material is available before the court to show that the second revision petitioner had the valid licence to sell the food item during the relevant period. In the said circumstances, the concurrent finding by the courts below that the second revision petitioner sold the food item without having a valid licence under the P.F.A. Rules does not warrant any interference by this court. 8. As regards the sentence, the learned counsel for the second revision petitioner has pleaded for leniency. The revision petitioners are husband and wife. There is no Crl.R.P.1508/2013 : 8 : previous conviction against the revision petitioners. Considering the facts and circumstances of the case, I am of the view that the sentence can be awarded under the 2[nd] proviso to Section 16(1) of the P.F.A. Act and accordingly, the sentence against the second revision petitioner can be modified and reduced 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(1)(a)(ii) and 7(iii) of the P.F.A.Act read with Rule 50(1) of the P. F.A. Rules, to secure the ends of justice. In the result, this revision petition stands allowed in part as above. Crl.R.P.1508/2013 : 9 : The second revision petitioner shall surrender before the trial court on 18.5.2016 to suffer the sentence. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/.30.3..2016_ _// True Copy //_ _\_ _PA to Judge_