T.K. Joseph v. K.G. Dasamma and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 15[TH] DAY OF JUNE 2022/ 25TH JYAISHTA, 1944 CRL.REV.PET NO. 1180 OF 2005** **CRA 35/2004 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM CC 371/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **COURT,VAIKOM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** T.K.JOSEPH S/O.T.V.KURIYAKOSE KANDATHIL PUTHENPURA, AMBIKA MARKET P.O., VAIKOM. BY ADVS. P.FAZIL JAYASREE MANOJ SAJU THALIATH JITHIN PAUL VARGHESE ANN MARY FRANCIS M.REVIKRISHNAN ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** 1 K.G.DASAMMA, FOOD INSPECTOR, ETTUMANOOR CIRCLE. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI SANAL P RAJ- Public Prosecutor THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.R.P.No.1180 of 2005 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** This Criminal Revision Petition is directed against the judgment dated 22.2.2005 in Crl.Appeal No.35/2004 on the file of the Court of Sessions, Kottayam (for short 'the appellate court') confirming the judgment dated 31.12.2003 in C.C.No.371/1999 on the file of the Judicial First Class Magistrate Court, Vaikom (for short 'the trial court'). 2. The revision petitioner is the accused. He faced trial for the offences punishable under Sections 2(1-a)(a)(m) r/w S.7(i)(iii) and S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the PFA Act') and Rules 23, 24, 29 and 50(1) of the Prevention of Food Adulteration Rules, 1955 (for short 'the PFA Rules'). 3. The case of the prosecution in short is that, on 16.12.1988 at 1 pm., PW1, the Food Inspector of Ettumanoor Circle inspected Modern Bakery functioning in Door No.VP V/132 of Ambika Market, Ettumanoor Panchayat, belonging to the revision petitioner and purchased 600 gms. of banana chips from the revision petitioner who was found conducting Crl.R.P.No.1180 of 2005 ..3.. sale there. He prepared samples in accordance with law and sent the same for examination by public analyst. The report of the public analyst indicated that the sample did not conform to the standard prescribed and it contained synthetic food colour “tartrazine” and hence adulterated. It was further found that the revision petitioner did not have PFA licence during the said period. Accordingly, prosecution was launched against the revision petitioner. 4. The revision petitioner appeared at the trial court. The particulars of the offences were read over and explained to him. He pleaded not guilty. After hearing both sides, charge was framed by the trial court against the revision petitioner. The charge was read over and explained to him who pleaded not guilty. 5. On the side of the prosecution, PWs.1 to 7 were examined and Exts.P1 to P20 were marked. Ext.D1 was marked on the side of the defence. 6. After trial, the trial court found the revision petitioner guilty under Sections 2(1-a)(a)(m) read with Section 7(i)(iii) and Section 16(1)(a)(i) of the PFA Act and Rules 23, 24, Crl.R.P.No.1180 of 2005 **==> picture [22 x 8] intentionally omitted <==** 29 and 50(1) of the PFA Rules. He was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a period of one month more under Section 16(1)(a)(i) of the PFA Act and to undergo simple imprisonment for a period of one month and to pay a fine of Rs.500/-, in default of payment of fine to undergo simple imprisonment for a period of ten days more under Rule 50(1) of the PFA Rules. The appellate court, in appeal, confirmed the judgment of conviction and sentence passed by the trial court. Aggrieved by the conviction and sentence passed by both the courts below, the revision petitioner preferred this Criminal Revision Petition. 7. I have heard Sri.Revikrishnan, the learned counsel for the revision petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor for the 2[nd] respondent. 8. Assailing the impugned judgment, the learned counsel for the revision petitioner mainly argued that in the absence of any prescribed or validated method of analysis under Section 23(1A)(ee) and (hh) of the PFA Act, Ext.P13 Crl.R.P.No.1180 of 2005 **==> picture [22 x 8] intentionally omitted <==** report of the public analyst could not be relied on and the conviction based on the said report is unsustainable. The learned counsel relied on the decisions of the Apex Court in _**Pepsico India Holdings (P) Ltd. v. Food Inspector**_ [(2011) 1 SCC 176], the judgment of the learned Single Judge of this Court in _**Gopalakrishnan v. Food Inspector**_ (2013 (3) KLT 455) and the judgment of the Division Bench of this Court in _**Rasheed N.K. v. Food Inspector, Thalasserry and**_ _**Another**_ (2016 (2) KHC 679). According to the learned counsel, no rules have been framed at the relevant time under Section 23(1A)(ee) and (hh) of the Act by the Central Government defining the methods of analysis for conducting the test and also defining the laboratory where the sample of article of food or adulterants could be analysed by the public analyst under the Act. Ext.P13 report submitted by the public analyst, following whatever method they choose cannot be relied on to sustain the conviction against the accused under Sections 16(1)(a)(i), 2(1-a)(a)(m) r/w Section 7(i)(iii) of the PFA Act, added the learned counsel. Crl.R.P.No.1180 of 2005 ..6.. 9. In _**Pepsico's case**_ (supra), the Apex Court has held that it is mandatory for the Central Government to prescribe laboratories under Section 23(1A)(ee) for testing of food samples/adulterants, and to prescribe methods of analysis under Section 23(1A)(hh). The learned Single Judge of this Court in _**Gopalakrishnan's case**_ (supra) following _**Pepsico's case**_ (supra) held that, since laboratories are not defined for analysis by the public analyst and the methods of analysis were not then defined, the report of the public analyst cannot be relied on to sustain the conviction. An argument was raised before the Court that the dictum laid down in _**Pepsico's case**_ (supra) was confined to the question regarding the detection of the percentage of carbofuran in the sample of pepsi involved in the said offence. Negativing the said contention, it was held that the dictum laid down in the said case is applicable to all the cases where food articles were analysed by the public analyst in the absence of defined laboratories where samples of food adulterants could be analysed by the public analyst as contemplated under Section 23(1A)(ee) and in the absence of Crl.R.P.No.1180 of 2005 **==> picture [22 x 8] intentionally omitted <==** a definite method of analysis as contemplated under Section 23(1A)(hh) of the PFA Act. Again the Division Bench of this Court in _**Rasheed N.K.'s case**_ (supra), answering a reference held that wherever the 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 the prosecution under the PFA Act, the report of the analyst in relation to that sample must be one conducted in a laboratory defined under Section 23(1A)(ee) and 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 the item concerned as adulterated, there cannot be any successful prosecution in the absence of such a report. It was further held that, if the analysis was conducted by the public analyst under the PFA Act in a laboratory not defined in terms of Section 23(1A)(ee), in the light of _**Pepsico's case**_ (supra), no prosecution will lie based on a report made after such an analysis. Crl.R.P.No.1180 of 2005 ..8.. 10. Coming to the facts of the present case, Ext.P13 would not show the method of analysis adopted. The sampling was done on 16.12.1998 and the date of Ext.P13 is 16.1.1999. Hence, the dictum laid down by the Apex court in _**Pepsico's case**_ (supra), followed by the learned Single Judge of this Court in _**Gopalakrishnan's case**_ (supra) and the Division Bench of this Court in _**Rasheed's case**_ (supra) are squarely applicable to the facts of the case inasmuch as the laboratories are not defined for analysis by the public analyst and the methods of analysis were not defined. Thus, the argument of the learned counsel for the revision petitioner that Ext.P13 cannot be relied on is only to be accepted. Hence, the impugned judgments convicting the accused under Sections 16(1)(a)(i) and 2(1-a)(a)(m) of the PFA Act and Rule 29 of the PFA Rules based on Ext.P13 cannot be sustained. 11. To prove that the revision petitioner was not having PFA licence to conduct the business during the relevant period, the prosecution mainly relied on Ext.P15 letter and the evidence of PW6. Crl.R.P.No.1180 of 2005 **==> picture [22 x 8] intentionally omitted <==** 12. As stated already, the detection was on 16.12.1998. The crucial question is whether the revision petitioner was having licence on that date. Ext.P15 is a letter issued by the Secretary of Vechoor Grama Panchayat addressed to the Food Inspector, PW1. In Ext.P15, it is stated that the revision petitioner was not having PFA licence on 16.12.1998 and the licence fee for the period 1998-99 was paid by the revision petitioner only on 23.3.1999. The learned counsel for the revision petitioner inviting my attention to the deposition of PW6 vehemently argued that his evidence would show that, as on 16.12.1998, the revision petitioner was having a valid licence. Ext.P15 was not issued by PW6. The author of Ext.P15 has not been examined. In cross-examination, PW6 admitted that he has perused the documents relating to the licence issued to the revision petitioner. He admitted that, as on 07.04.1999, the revision petitioner was having licence for the period 1998-99. He specifically admitted that the said period would cover from 1.4.1998 to 31.3.1999. He has also admitted that the revision petitioner paid renewal fee on Crl.R.P.No.1180 of 2005 **==> picture [28 x 8] intentionally omitted <==** 23.3.1999 and also had applied for renewal. Thus, it appears that, even though the revision petitioner applied for renewal of the licence belatedly, his licence was renewed with retrospective effect, i.e., with effect from 1.4.1998 to 31.3.1999. Hence, the finding of the courts below that the revision petitioner did not have valid licence on 16.12.1998 also cannot be sustained. Thus, the conviction under Section 7(i)(iii) of the PFA Act and Rules 23, 24 and 50(1) of the PFA Rules also is liable to be set aside. 13. In view of the above findings, the conviction and sentence passed by the courts below vide impugned judgments cannot be sustained. Accordingly, the judgments of conviction and sentence passed by the two courts below are set aside. The revision petitioner is acquitted of all the offences charged against him. The Criminal Revision Petition is allowed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** skj