V.U. Alexander v. Food Inspector, Changanacherry Circle, Changanacherry; State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam; Sri Sanal P Raj, Public Prosecutor

``` CRL.RP NO.3298/2005 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, ``` ## **`1943`** ``` CRL.REV.PET NO. 3298 OF 2005 ``` ``` AGAINST THE JUDGMENT IN CRL.A 118/2005 OF ADDITIONAL SESSIONS COURT (ADHOC I), KOTTAYAM ``` ``` AGAINST THE JUDGMENT IN CC 425/2000 OF JUDICIAL MAGISTRATE OF ``` ``` FIRST CLASS ,CHANGANACHERRY ``` ## **`REVISION PETITIONER/APPELLANT:`** ``` V.U.ALEXANDER S/O.UTHUPPAN JOSEPH, VANIYAMPARAMPIL, VAKATHANAM, NJALIYAKUZHY, VAKATHANAM. ``` ``` BY ADV SRI.M.P.MADHAVANKUTTY ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1THE FOOD INSPECTOR CHANGANACHERRY CIRCLE,, CHANGANACHERRY. ``` ``` 2STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI SANAL P RAJ,PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.RP NO.3298/2005 ``` ``` 2 ``` ## O R D E R This revision is directed against the judgment dated 10.10.2005 in Crl.A No.118/2005 on the file of the Additional Sessions Court (Adhoc I), Kottayam (for short ‘the appellate court’), confirming the judgment dated 20.1.2005 in C.C.No.425/2000 on the file of the Judicial First Class Magistrate Court, Changanacherry (for short ‘the trial court’). 2. The revision petitioner is the accused. He faced trial for the offence punishable under Section 7(1) r/w Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short ‘PFA Act’). 3. The prosecution case in short is that on 26.2.2000 at 4 pm., the complainant inspected a bakery conducted by the accused at Njaliyamkuzhy in Vaakathanam Panchayath and purchased three packets of banana chips of 200 grams each. He prepared the sample in accordance with law and sent the same for examination ``` CRL.RP NO.3298/2005 ``` ``` 3 ``` by public analyst. The report of the public analyst indicated that the sample did not confirm with the standard prescribed and it contained tartrazine and hence adulterated. On receipt of the report of the public analyst that the sample was adulterated, the prosecution was launched against the accused. 4. The accused appeared at the court below. The particulars of the offence were read over and explained to him. He pleaded not guilty. After hearing both sides charge under Section 7(1) r/w Section 16(1)(a)(i) of the PFA Act was framed against the accused. The charge was read over and explained to the accused who pleaded not guilty. 5. On the side of the prosecution, PW1 to PW3 were examined and Exts.P1 to P18 were marked. After trial, the trial court found the accused guilty under Section 16(1)(a)(i) of the PFA Act and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment ``` CRL.RP NO.3298/2005 ``` ``` 4 ``` for a period of one month. In appeal, the appellate court confirmed the conviction and sentence. Aggrieved by the conviction and sentence of both the courts below, the accused preferred this revision petition. 6. I have heard Sri.M.P.Madhavankutty, the learned counsel for the revision petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor. 7. Assailing the impugned judgment, the learned counsel for the revision petitioners 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.P12 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 decision 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 ``` CRL.RP NO.3298/2005 ``` ``` 5 ``` 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.P12 report submitted by the public analyst, following whatever method they choose cannot be relied on to sustain the conviction against the accused under Section 16(1)(a)(i) of the PFA Act, added the learned counsel. 8. In Pepsico (supra), the Apex Court has held that it is mandatory for the Central Government to prescribe laboratories under Section 23(1-A)(ee) for testing of food samples/adulterants, and to prescribe methods of analysis under Section 23(1-A)(hh). The learned Single Judge of this Court in Gopalakrishnan (supra) following Pepsico (supra) held that since laboratories are not defined for analysis by the public ``` CRL.RP NO.3298/2005 ``` ``` 6 ``` 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 a definite method of as analysis contemplated under Section 23(1-A)(hh) of the PFA Act. Again the Division Bench of this Court in Rasheed N.K. (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, ``` CRL.RP NO.3298/2005 ``` ``` 7 ``` 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. 9. Coming to the facts of the present case, Ext.P12 would show that the public analyst has found synthetic food colour tartrazine is present in the sample. The chemical analysis report is silent as to the method adopted for analysis. For the reasons stated above, I hold that the dictum laid down by the Apex court in Pepsico' s case (supra), followed by the learned single Judge of this court in Gopalakrishnan (supra) and the Division Bench of this ``` CRL.RP NO.3298/2005 ``` ``` 8 ``` Court in Rasheed (supra)are squarely applicable to the facts of the case inasmuch as the laboratories are not defined for the analysis by the public analyst and the methods of analysis were not thus defined. Thus, the argument of the learned counsel for the revision petitioners that Ext.P12 cannot be relied on is only to be accepted. Hence, the impugned judgments convicting and sentencing the accused under Section 7(1) r/w Section 16(1)(a)(i) of the PFA Act based on Ext.P12 cannot be sustained. The accused are entitled for acquittal. In the light of the above findings, the conviction and sentence passed by the courts below cannot be sustained. Accordingly, the conviction and sentence are set aside. The accused is found not guilty of the charges levelled against him and he is set at liberty. His bail bond is cancelled. The Revision Petition is allowed as above. Sd/- ## DR. KAUSER EDAPPAGATH ab JUDGE