M. Ajithkumar vs The State By
2022 Latest Caselaw 9548 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 24TH DAY OF JUNE, 2022
                                                             R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

       CRIMINAL REVISION PETITION NO.1527/2016

BETWEEN:

M.AJITHKUMAR
AGED ABOUT 60 YEARS
S/O. LATE MURARAPPA
PROPRIETOR
SWASTHIK TRADING COMPANY
GENERAL MERCHANTS AND
OIL DISTRIBUTOR
B.M.BOAD, SHANTHEPETE
HASSAN-573201.                                ... PETITIONER

   (BY SRI A. RAVISHANKAR, ADVOCATE [THROUGH V.C.])

AND:

THE STATE BY
FOOD INSPECTOR, KOPPA
CHIKMAGALUR DISTRICT.                      ... RESPONDENT

               (BY SRI MAHESH SHETTY, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT DATED 24.4.2013 PASSED BY THE C.J. AND J.M.F.C.,
KOPPA IN C.C.NO.451/2008 AND SET ASIDE THE JUDGMENT
DATED 9.11.2016 PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE, CHIKKAMAGALURU IN CRL.A.NO.233/2013
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AND ACQUIT THE REVISION PETITIONER OF THE OFFENCES
ALLEGED AGAINST HIM.

    THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 16.06.2022 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:

                              ORDER

This criminal revision petition is filed under Section 397 of

the Code of Criminal Procedure, 1973 praying this Court to set

aside the judgment passed by the Civil Judge and JMFC, Koppa

dated 24.04.2013 in C.C.No.451/2008 and also set aside the

judgment dated 09.11.2016 passed in Crl.A.No.233/2013 by the

Principal District and Sessions Judge, Chikkamagaluru and acquit

the revision petitioner for the offences alleged against him and

grant such other relief as deems fit in the circumstances of the

case.

2. The factual matrix of the case of the prosecution is

that the Food Inspector, Koppa has visited the shop belonging to

the accused No.1-M. Umar on 16.02.2008 situate at Koppa and

inspected the food articles and examined 20 packs each

containing 200 miligrams of sungift refined cooking oil and found

that there is adulteration in the said oil and noticed that the said

oil was supplied by the revision petitioner and filed the complaint

against the accused persons stating that they have violated

Section 7(2) of the Prevision of Food Adulteration Act, 1954 ('the

Act' for short) and thereby committed the offence punishable

under Section 16(a)(i) of the said Act.

3. Based on the complaint, cognizance was taken

against this revision petitioner and accused No.1 and both of

them not pleaded guilty. Hence, the prosecution, in order to

prove their case, examined P.Ws.1 to 4 and relied upon the

documents Exs.P1 to P13(a) and two memo of objects were

marked as M.Os.1 and 2 containing sungift refined cooking oil.

4. The Trial Court, after considering both oral and

documentary evidence placed on record, convicted both the

accused and imposed sentence of fine of Rs.4,000/- each, failing

which they are liable to serve the sentence of simple

imprisonment for seven months. The accused No.1 paid the fine

amount and the prosecution also challenged the inadequate

sentence and filed appeal in Criminal Appeal No.233/2013 and

the First Appellate Court reversed the judgment of the Trial

Court and imposed sentence of six months vide judgment dated

09.11.2016. Hence, the revision petitioner-accused No.2 has

filed this revision petition.

5. Learned counsel appearing for the revision petitioner

would vehemently contend that, admittedly, the charge was

framed against the accused persons only to the effect that they

have dealt with adulterated oil and the samples were sent to the

laboratory for examination. The report do not indicate that the

oil is adulterated and the same is with regard to misbranding

which is also without jurisdiction and both the framing of charge

as also the report is bad in law.

6. The counsel would also contend that the Trial Court

also have totally ignored the admission of the complainant in his

cross-examination that he had not sent the same for verification

of the brand and that there is no notice given to the accused

persons seeking for their explanation on the allegation of

branding. He also contend that no opportunity was given to

answer the claim/allegation and it was alleged for the first time,

when the samples were received with the opinion that the same

is misbranded. He would also contend that the trial Judge

grossly erred in not noticing the fact that there was no

misbranding and no offence was committed by the revision

petitioner and the trial Judge ought to have noticed that the

witnesses admittedly admit that the samples sent for analysis is

not adulterated. The oil that was manufactured and distributed

was soybean oil and the branding was also soybean oil.

Therefore, there could not have been any offence by the revision

petitioner as alleged. The allegation of the prosecution that the

images of sunflower is depicted on the packet though the oil sold

is soybean and that the commodity - soybean oil is written in

small fonts is not correct.

7. The counsel also would vehemently contend that the

Court below ought to have noticed that the prosecution ought to

have examined independent witnesses to establish that they

were misguided by the signs and small fonts of the packets and

that they purchased the soybean oil under the impression that

the same is sunflower oil and instead of acquitting, erroneously

convicted the revision petitioner. The counsel would further

contend that the First Appellate Court, grossly erred in not

appreciating the evidence on record and has not recognized the

right of appeal of the revision petitioner envisaged in law in

cases where the State comes in appeal with much delay and

both the Courts have committed an error in not considering the

defence of the revision petitioner.

8. The counsel would vehemently contend that the

prosecution has not produced the notification regarding the

appointment of the Food Inspector. In support of his contention,

he relied upon the judgment of the Madhya Pradesh High Court

in the case of SADHRAM VS. THE STATE OF M.P. in

CRIMINAL REVISION NO.391 OF 1990, wherein it is held

that failure on the part of the prosecution to bring the

notification of the complainant as Food Inspector goes to the

very root of the case. In absence of such notification on the

record it cannot be said that the complainant was legally and

validly appointed as a Food Inspector and therefore, they were

competent to launch the prosecution against the applicants.

9. The counsel also relied upon the judgment of the

Allahabad High Court in the case of LALLAN PRASAD VS.

STATE OF U.P. in CRIMINAL APPEAL NO.2901 OF 1977,

wherein it is held that duty of the prosecution to have led

evidence to show that Surendra Singh had been appointed as

Food Inspector for the town of Mahmoodabad and no evidence

was led on this point. Hence, he had no authority to act as Food

Inspector.

10. The counsel also relied upon the judgment of the

Madhya Pradesh High Court in the case of HARBHAJAN SINGH

VS. STATE OF M.P. AND ANOTHER in CRIMINAL REVISION

NO.177 OF 1980, wherein also, the Court has held that valid

appointment of a person as Food Inspector is a prerequisite to

set the ball rolling for purposes of purchasing the sample,

sending the same to the Public Analyst .

11. The counsel would vehemently contend that drawing

up of mahazar in the presence of independent witnesses is

mandatory and no independent witnesses have been examined

before the Court, except the official witnesses. In support of his

argument, he relied upon the judgment of the Patna High Court

in the case of LAKHAN LAL MODAK VS. THE STATE OF

BIHAR in CRIMINAL REVISION NO.281 OF 1996, wherein it

is held that, if the mandatory provision of Section 10(7) of the

Act is not complied with, the conviction and sentence is not in

accordance with law.

12. The counsel also relied upon the judgment of the

Allahabad High Court in the case of TURSHAN PAL SINGH VS.

STATE OF U.P. AND ANOTHER in CRIMINAL REVISION

NO.125 OF 1989, wherein it is held that non-compliance of the

direction contained on Section 10(7) of the Act and the omission

to produce each independent witness in Court, creates a grave

doubt regarding the truthfulness of the prosecution version.

13. The counsel also relied upon the judgment of the

Andhra Pradesh High Court in the case of THE FOOD

INSPECTOR, ZONE VISIANAGARAM, REP. BY ITS PUBLIC

PROSECUTOR, HIGH COURT OF A.P., HYDERABAD VS.

POOSALLA JAGANNADHA RAO in CRIMINAL APPEAL

NO.1592 OF 1990, wherein it is held that duty is cast on the

Food Inspector to examine independent witnesses as per Section

10(7) of the Prevention of Food Adulteration Act.

14. The counsel also, in his argument vehemently

contend that written sanction is mandatory to prosecute the

accused. In support of his contention, he relied upon the

judgment of the Himachal Pradesh High Court in the case of

STATE OF H.P. VS. KISHORI LAL in CRIMINAL APPEAL

NO.558 OF 1996, wherein it is held that the prosecution is

vitiated, if the written consent to prosecute had been signed by

the competent authority is a matter of routine and without due

application of mind.

15. The counsel also relied upon the judgment of the

Andhra Pradesh High Court in the case of ADDA

KASIVISWESWARA RAO VS. STATE OF A.P. in CRIMINAL

REVISION CASE NO.604 OF 1989, wherein it is held that the

sanctioning authority must first state what is adulterated as per

the report of the Public Analyst and what material it has perused

and then what are the reasons for granting the sanction in the

light of the public interest.

16. The counsel also would vehemently contend that

non-furnishing of report of Public Analyst defeats the right of the

defence. In support of his argument, he relied upon the

judgment of the Apex Court in the case of NARAYANA PRASAD

SAHU VS. STATE OF MADHYA PRADESH reported in 2021

SCC ONLINE SC 1016, wherein it is held that serving a copy of

the Public Analyst report on the accused under Sub-section (2)

of Section 13 of the Act is mandatory.

17. The counsel also in his argument vehemently

contend that misbranding of label does not require opinion of the

Public Analyst. The counsel, in support of his argument, relied

upon the judgment of the Madras High Court in the case of

P. ROBERT IMMANUEL AND ANOTHER VS. THE STATE

REPRESENTED BY THE FOOD INSPECTOR reported in 2009

(2) FAC 199, wherein it is held that the Food Inspector, who

had the occasion to see the beverage bottles did not mention

anything about the misbranding and it does not require the

opinion of the Public Analyst and held that proceedings initiated

is nothing but abuse of process of law.

18. The counsel also relied upon the judgment of the

Jharkhand High Court in the case of MD. SHREE OM

INDUSTRIES VS. STATE OF JHARKHAND AND ANOTHER in

CR.M.P.NO.2009 OF 2011, wherein it is held that, it is not the

case that clause which was required to be there under Rule 32

was never there over the packets rather it was there in small

letters and therefore, there is sufficient compliance of Rule 32.

19. The counsel would vehemently contend that there is

non-compliance of Sections 10(7), 11 and 13 of the Act by the

prosecution which are mandatory in nature and goes to the root

of the matter. The counsel also vehemently contend that the

First Appellate Court has not reassessed the evidence and has

only considered whether the Trial Court has committed an error

in imposing inadequate sentence. The First Appellate Court

being the final Court of finding was required to assess the

evidence and the same has not been done and instead,

enhanced the sentence of simple imprisonment for a period of

six months and therefore, it requires interference of this Court.

20. Per contra, learned High Court Government Pleader

for the respondent-State would vehemently contend that the

Trial Court, while considering the material on record, framed

appropriate points for consideration invoking Section 7(2) of the

Act and sentence passed is also for misbranding and not

adulteration. He would also vehemently contend that, inside the

packet, soybean oil was found but, branding outside the packet

is sunflower oil. Hence, the Trial Court comes to the conclusion

that the same is misbranded. He would further contend that the

principles laid down in the judgments referred by the learned

counsel for the revision petitioner is not applicable to the facts of

the case on hand and for the first time, the revision petitioner

has urged the ground with regard to non-production of

notification regarding appointment of Food Inspector is

concerned and no such cross-examination was done during the

course of cross-examination of prosecution witnesses, who have

been examined as P.Ws.1 to 4. He also further contends that

notice was given to the revision petitioner and he had admitted

in his reply but, the accused No.1 is no more and no sanction is

required to initiate the proceedings. The charges leveled against

the revision petitioner is also that he had misbranded and no

charge is framed in respect of adulteration and both the Courts

have taken note of the material on record and point framed is

also in respect of misbranding and not in respect of adulteration.

Hence, the very contention of the learned counsel for the

revision petitioner cannot be accepted.

21. In reply to the arguments of the learned High Court

Government Pleader for the respondent-State, learned counsel

for the revision petitioner would vehemently contend that

soybean oil itself is sold and the same is also printed on the

cover. He would also contend that the Food Officer cannot give

any authorization and the complaint is also filed by local

authority and he cannot delegate the power to file any complaint

and no notification or gazette notification is placed before the

Trial Court. The counsel would vehemently contend that no

independent witnesses are examined and the judgments referred

(supra) are aptly applicable to the case on hand, when no

independent witnesses are examined. The counsel would further

contend that no notice was given regarding misbranding and the

same is admitted by P.W.1 in the cross-examination and the

charge is framed for violation of Section 7(1) of the Act but, the

conviction is in respect of 7(2) of the Act and though the

prosecution contend that it is a case of misbranding, no material

is placed before the Court with regard to the same. Hence, it

requires interference of this Court.

22. Having heard the respective counsel and also on

perusal of the material on record, the points that would arise for

consideration of this Court are:

(i) Whether the revision petitioner has made out a ground to exercise the revisional jurisdiction to set aside the orders passed by the Trial Court as well as the First Appellate Court?

(ii) What order?

Point No.(i)

23. Having heard the respective counsel and also on

perusal of the material available before the Court, the Trial Court

imposed fine of Rs.4,000/- each and accordingly, accused No.1

deposited the fine amount and whether the accused No.2, the

revision petitioner herein has deposited the amount or not is not

forthcoming. Admittedly, this petitioner has also not challenged

the same in any appeal before the Appellate Court i.e., the

sentence of fine imposed by the Trial Court. However, the State

has filed an appeal before the First Appellate Court on the

ground of inadequate sentence. Hence, the Appellate Court

modified the sentence of simple imprisonment for a period of six

months, instead of fine of Rs.4,000/-.

24. The first and the foremost contention of the learned

counsel for the revision petitioner before this Court is that there

was no adulteration and it was only a misbranding. The counsel

also relied upon the document Ex.P10 i.e., the report received

from the Divisional Public Analyst cum Regional Assistant

Chemical Examiner, Mysuru Division, N.P.C. Hospital Compound,

Nazarbad, Mysuru, wherein it is opined that the sample sent for

analyst is not adulterated but, it is misbranded wide label-3(e)

and the said report is given on 6th day of March, 2008. On

perusal of the records of the Trial Court, it is seen that the

charge was framed on 18th August, 2011 subsequent to receipt

of the report. On perusal of the charges, it is seen that the trial

Judge has framed the charge for the offence under Section 7 of

the Act, particularly, Section 7(1) in respect of adulteration of

food and Section 7(2) is in respect of misbranding food. The

charge has been framed for the offence under Section 7(1) i.e.,

adulteration of food and that is not the case of the prosecution

and the case of the prosecution is misbranding.

25. On perusal of the complaint which is dated 8th July

2008 particularly, page No.2 in the bottom, it is stated that the

information given in the packet is erroneous and also referred

that the report of the analyst is misbranded and categorically

mentioned in page No.3 that there is violation of Section 7(2) of

the Act, punishable under Section 16(a)(i) of the Act. However,

the allegation against this petitioner is that he has not issued

cash bill in terms of Section 14 of the Act and he had distributed

the oil packet, wherein also specifically mentioned that the

petitioner has violated Section 7(2) of the Act, punishable under

Section 16(a)(i) of the Act. But, the trial Judge has framed the

charge for the offence under Section 7(1) of the Act and not for

the offence under Section 7(2) of the Act. It is also important to

note that the complaint dated 8th day of July, 2008 is subsequent

to the receipt of the report from the analyst which is marked as

Ex.P10 which is dated 6th day of March, 2008. Hence, it is clear

that the report is received on 6th day of March, 2008 and

complaint is filed in the month of July i.e., 8th day of July, 2008

and inspite of it, though allegation is in respect of Section 7(2) of

the Act, the Trial Court framed the charge for the offence under

Section 7(1) of the Act. Hence, very framing of the charge itself

is erroneous.

26. It has to be noted that the trial Judge, even while

passing the judgment invoked Section 7(2) of the Act punishable

under Section 16(a)(i) of the Act and not altered the Section

from 7(1) to 7(2) of the Act. It is also rightly pointed by the

learned counsel for the revision petitioner that no notice was

given to invoke Section 7(2) of the Act and though the same is

noticed by the Trial Court, the charge has been framed for

violation of Section 7(1) of the Act and punishment was provided

for the violation of Section 7(2) of the Act. Hence, there is a

glaring error on the part of the Trial Court since charge has been

framed for Section 7(1) of the Act and conviction and sentence is

passed for the violation of Section 7(2) of the Act. The Appellate

Court also failed to take note of this aspect into consideration

and concentrated mainly on the minimum sentence. Hence, the

very judgment of the Trial Court as well as the First Appellate

Court requires to be set aside on the ground that the charge has

been framed for violation of Section 7(1) of the Act and

conviction and sentence has been passed for violation of Section

7(2) of the Act.

27. The other contentions of the learned counsel for the

revision petitioner are that, no authorization to file any complaint

and the delegatee also cannot delegate the powers. He also

would contend that, no notification was produced regarding

appointment of Food Inspector and the independent witnesses

have not been examined. It is also his contention that non-

furnishing of report of Public Analyst and misbranding of label

does not require any opinion from the Public Analyst. When

charge has not been properly framed and conviction and

sentence is passed for in respect of violation under Section 7(2)

of the Act, it is appropriate to set aside the judgments of both

the Trial Court as well as the First Appellate Court by keeping

open the other contentions of the learned counsel for the

revision petitioner and remand the matter to the Trial Court for

framing appropriate charges and consider the matter afresh. If

need arises, the Trial Court shall also permit the prosecution as

well as the revision petitioner to adduce evidence before the

Trial Court since, proper charge has to be framed and an

opportunity has to be given to the revision petitioner to meet the

case of the prosecution and unless the charge is specific,

meeting the case of the prosecution by the defence is also very

difficult. Hence, the judgment and sentence passed by the Trial

Court as well as the First Appellate Court is not legally

sustainable in the eye of law and it requires fresh consideration.

Accordingly, I answer point No.(i) as 'affirmative'.

Point No.(ii)

28. In view of the discussions made above, I pass the

following:

ORDER

(i) The criminal revision petition is allowed.

      (ii)    The judgment passed by the Civil Judge and
              JMFC,     Koppa      dated     24.04.2013    in
              C.C.No.451/2008 and the judgment passed

by the Principal District and Sessions Judge, Chikkamagaluru dated 09.11.2016 in Crl.A.No.233/2013 are set aside. The matter is remanded to the Trial Court to consider the matter afresh in accordance with law within a period of six months, since the matter is of the year 2008.

(iii) The revision petitioner and the prosecution are directed to appear before the Trial Court on 25th July, 2022 without expecting any notice.

(iv) The respective parties are directed to assist the Trial Court in disposal of the case within the stipulated time.

     (v)    The Registry is directed to transmit the
            records forthwith to the concerned Court.




                                                  Sd/-
                                                 JUDGE




ST