T. D. Krishnakumar, P. X. Jaison & M/s J.D. Food Products v. Food Inspector, Angamally Circle; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 12[TH] DAY OF JULY 2023 / 21ST ASHADHA, 1945** **CRL.REV.PET NO. 15 OF 2016** **AGAINST THE ORDER IN CRL.APPEAL NO.24/2009 DATED 31.10.2015 OF THE COURT OF ADDITIONAL DISTRICT & SESSIONS JUDGE - II, NORTH PARAVUR AND IN S.T. NO.6435/2002 DATED 17.12.2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NORTH PARAVUR** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** - **1 T.D.KRISHNAKUMAR AGED 40 YEARS, S/O. DAMODARAN, THEVAPPILLY HOUSE, NEERIKODE P.O., ERNAKULAM DISTRICT, PIN -683511** - **2 P.X.JAISON** **AGED 42 YEARS, S/O. XAVIER, PANJIKKARAN HOUSE, KUZHOOR P.O., THRISSUR DISTRICT** - **3 MS. J.D.FOOD PRODUCTS KUNDOOR P.O., THRISSUR DISTRICT, PIN-680734** **BY ADVS. SRI.SANTHOSH SUBRAMANIAN SRI.SHERRY J. THOMAS SRI.S.SREEKUMARNORTH PARAVUR SRI.E.A.THANKAPPAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** - **1 FOOD INSPECTOR, ANGAMALLY CIRCLE ANGAMALLY P.O., ERNAKULAM DISTRICT, PIN-683572** - **2 STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** **SR PP - P G MANU** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON** **12.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P No. 15 of 2016 2 ## **“C.R.”** ## **ORDER** ## **Dated this the 12th day of July, 2023** This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.' for convenience) challenging concurrent verdicts of conviction and sentence imposed by the Judicial First Class Magistrate Court, North Paravur in S.T. No.6435/2002 dated 17.12.2008 and confirmed by the learned Sessions Judge in Crl.A. No.24/2009 dated 31.10.2015. 2. Heard the learned counsel for the revision petitioners as well as the learned Public Prosecutor appearing for the prosecution. Perused the relevant documents available in this matter. 3. Summary of the prosecution case is as under:The prosecution would allege that at about 11.30 a.m. on 16.07.2002 when the Food Inspector inspected the shop owned by the 1[st] accused where the 2[nd] accused was present as the nominee of the 3[rd] accused, adulterated turmeric Crl.R.P No. 15 of 2016 3 powder meant for sale was found, that too without licence to sell the same. Soon after recovery of the adulterated turmeric powder, prosecution launched alleging commission of offences punishable under Sections 2(ia)(a) & (m)7(i)(V), 16(1)a(i), 17(i)(a)(i) and (b) of the Prevention of Food Adulteration Act (hereinafter referred as 'PFA Act' for convenience) and Rule 5 appendix 'B' item A-05-20-01 and Rule 50 of Prevention of Food Adulteration Rules, 1954. 4. The trial court took cognizance of the above offences and secured the presence of the accused for trial. Thereafter, during trial, PWs 1 to 5 were examined and Exts.P1 to P25 were marked on the side of the complainant. When opportunity was given to the accused to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C., one witness got examined as DW1. 5. On consideration of the available materials, the trial court found the accused guilty for the offences punishable under Sections 16(1)a(i) and 16(1)(a)(ii)(g)(ii) of the PFA Act, 1954 and accordingly the accused were convicted and sentenced as under: Crl.R.P No. 15 of 2016 4 _“The 1[st] accused is sentenced to undergo simple imprisonment for six months and fine of Rs.1,000/- (Rupees Thousand), in default of which, simple imprisonment for three months u/s. 16(1) (a)(i) of the PFA Act. The 1[st] accused is further sentenced to undergo simple imprisonment for three months and fine of Rs.500/- (Rupees Five Hundred), in default of which, simple imprisonment for 1[1] /2 (one and half) months under proviso to Section 16(1)(a)(ii)(g)(ii) of the Act. The 2[nd] accused is sentenced to undergo simple imprisonment for six months and fine of Rs.1,000/-, in default of which simple imprisonment for three months u/s.16(1)(a)(i) r/w. 17(1) of the Act. Substantive sentence against A1 shall run concurrently.”_ 6. Though the accused/revision petitioners challenged the conviction and sentence imposed by the trial court before the Appellate Court, as per judgment dated 31.10.2015 in Crl.A. No.24/2009, the Appellate Court also confirmed the conviction and sentence. 7. Now the accused have preferred revision challenging the concurrent verdicts of conviction and sentence. Crl.R.P No. 15 of 2016 5 8. While impeaching the concurrent verdicts, the learned counsel for the revision petitioners argued two specific points. The first point argued is that, the conviction and sentence imposed by the trial court on the revision petitioners under Section 16(1)(a)(i) of the PFA Act will not stand in the eye of law since Ext.P20 report of the laboratory obtained to prove that the turmeric powder was adulterated is not a specified/notified laboratory as provided under Section 23(1A)(ee) of the PFA Act. 9. In support of his contentions, it is submitted by the learned counsel for the revision petitioners further that, in the decision reported in _**Pepsico India Holdings Private Limited v. Food Inspector and Another**_ [2011 (1) SCC 176] the Apex Court considered this question and in paragraph Nos. 41 to 44 summarized the law affirming the said view. For clarity, paragraph Nos. 41 to 44 are extracted hereunder: _“41. The High Court summarised its view into several grounds of challenge. Grounds 1 and 2 relate to the non-framing of Rules under Sections 23(1-A) (ee) and (hh) of the 1954 Act. Grounds 3, 4 and 5 deal with the challenge thrown on behalf of the_ Crl.R.P No. 15 of 2016 6 _appellants to the submissions that the report of the public analyst was not final and that the same could be challenged under Section 13(2) of the said Act. Ground 6 deals with the criminal liability of the Directors of the Company on account of the allegations against the Company._ _42. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Sections 23(1-A)(ee) and (hh) of the 1954 Act, the report of the public analyst, who had used the DGHS method, could not be relied upon, especially when even the laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified._ _43. The observation of the Division Bench of the High Court that if the submissions made on behalf of the appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pickand-choose method to suit the prosecution. However, in any event, the percentage of carbofuran detected in the sample of Pepsico which was sent for examination to the forensic laboratory is within the tolerance limits prescribed for sweetened carbonated water with effect from 17-6-2009._ Crl.R.P No. 15 of 2016 7 _44. The High Court also misconstrued the provisions of Sections 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing the Rules thereunder, by which specified tests to be held in designated laboratories could be spelt out. Consequently, the High Court also erred in holding that the non-formulation of rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution.”_ 10. The learned counsel for the revision petitioners also submitted that since conflicting judgments rendered by two learned Single Judges of this Court on this point, the matter was referred to the Division Bench of this Court and as per the decision reported in _**Rasheed N.K. v. Food Inspector, Thalassery and Another**_ [2016 (2) KHC 679 : 2016 (1) KLD 704 : 2016 (2) KLT 390] the Division Bench held as under: _“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_ Crl.R.P No. 15 of 2016 8 _before the said it can only 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_ Crl.R.P No. 15 of 2016 9 _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 inevitable in such cases also if the analysis was conducted by the public analyst under the PFA Act in a laboratory not defined in_ Crl.R.P No. 15 of 2016 10 _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_ Crl.R.P No. 15 of 2016 11 _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.”_ 11. It is submitted by the learned counsel for the revision petitioners further that, going by the ratio in the above decisions, after the introduction of Section 23(1A) (ee) with effect from 01.04.1976 till the repeal of the Act in 2011, no laboratory as defined under Section 23(1A)(ee) of the PFA Act was established and as such the entire prosecution based on the report from other laboratories found to be unsustainable except those which are specifically dealt in _**Rasheed N.K.**_ 's case (Supra). 12. The learned Public Prosecutor not seriously disputed the legal position based on the above reported Crl.R.P No. 15 of 2016 12 ## decisions. 13. In this connection it is necessary to extract Section 16 of the PFA Act, 1956 and the same is as under: _“16. Penalties. - [(1) Subject to the provisions of sub-section (1A), if any person-_ _(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of food-_ _(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority._ _(ii) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder;_ _(b) xx_ _(c) xx_ _(d) xx_ _(e) xx_ _(f) xx_ _(g) xx_ _Provided that -_ _(i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which_ Crl.R.P No. 15 of 2016 13 _is misbranded within the meaning of sub-clause (k) of clause (ix) of section 2; or_ _(ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24,_ _the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees:_ _Provided further that if the offence is under subclause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees."_ 14. Summarizing the legal positions it has to be held that the specified tests shall be done in designated laboratories in view of the mandate of Section 23(1-A)(ee) and (hh) of the PFA Act. To be more explicit, wherever an Crl.R.P No. 15 of 2016 14 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 Crl.R.P No. 15 of 2016 15 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. 15. The ratio of the decisions read along with the statutory provisions extracted herein above would go to show that the concurrent finding of conviction and sentence imposed by the trial court under Section 16(1)(a)(i) of the PFA Act, acting on Ext.P20 chemical analysis report (which is not obtained from a specified laboratory under Section 23(1A)(ee) of the PFA Act) are unsustainable in law. Therefore, concurrent findings of conviction and sentence Crl.R.P No. 15 of 2016 16 under Section 16(1)(a)(i) of the PFA Act will not stand and the same shall be set aside. 16. The second point argued by the learned counsel for the revision petitioners is that even though the finding of the trial court as well as the Appellate Court holding the view that the accused herein committed offence punishable under Section 16(1)(a)(ii)(g)(ii) of the PFA Act read with Rule 50 of the Prevention of Food Adulteration Rules, the offence of selling food articles without licence falls under the second proviso to Section 16(1)(a) and hence punishable with imprisonment for a term which may extend to three months and with fine which may extend to Five Hundred Rupees. 17. While appreciating the merit of this contention, on reading the Section 16 of the PFA Act, for the offences under Section 16(1)(a)(ii), with respect to the contravention of any rule made under clause (a) or (g) of Section 23(1-A), the court may for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term which may extend to three months and with fine, which may extend to five Crl.R.P No. 15 of 2016 17 hundred Rupees. But, if the offence under Section 16(1)(a) (ii) is not with respect to any rule made under clause (a) or (g) of Section 23(1-A), the court may impose a sentence of imprisonment which shall not be less than three months, but which may extend to two years and with fine which shall not be less than Five Hundred Rupees. Section 23 deals with the power of the Central Government to make Rules. Sub-section (1-A) of Section 23 specifies the matters which the rules thus framed may provide for. Sub clause(g) of Section 23(1-A) empowers the Government to frame rules defining the conditions of sale or conditions of licence of sale of any article of food. Accordingly, Rule 50 of the PFA Rule has been framed. As such, the offence of selling food articles without licence falls under the second proviso to Section 16(1) and is hence punishable with imprisonment for a term which may extend to three months and with fine which may extend to Five Hundred Rupees. 18. In this matter, the learned counsel for the revision petitioners sought leniency in the matter of sentence on the submission that the 1[st] accused/1[st] revision Crl.R.P No. 15 of 2016 18 petitioner is now aged and ailed. In consideration of the said plea, sentence imposed against the 1[st] accused/1[st] revision petitioner is liable to be modified as under: 19. In the result, this revision succeeds in part. The conviction and sentence imposed against the 1[st] and 2[nd] accused by the trial court and confirmed by the Sessions Court under Sections 16(1)(a)(i) of the PFA Act stand set aside. The accused/revision petitioners stand acquitted for the said offence and they are set at liberty forthwith. Their bail bonds, if any, shall stand canceled. 20. The sentence imposed against the 1[st] accused for the offence punishable under Section 16(1)(a)(ii)(g)(ii) of the PFA Act is modified and reduced for a day till raising of the court and to pay a fine of Rs.500/- (Rupees Five Hundred Only). In default of payment of fine, the 1[st] accused shall undergo default imprisonment for a period of ten days. 21. The 1[st] accused is directed to appear before the trial court to undergo the modified sentence on 26.07.2023 at 11.00 a.m., failing which the trial court is directed to execute the modified sentence, in accordance with law, Crl.R.P No. 15 of 2016 19 ## without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. **Sd/-** SK **A. BADHARUDEEN JUDGE**