Sri Syed Ahammed vs State Of Karnataka By Food ...
2022 Latest Caselaw 12890 Kant

                                                          ®
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF NOVEMBER, 2022

                             BEFORE

 THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.1094 OF 2018

BETWEEN:

Sri. Syed Ahammed
S/o. B. Syed Yusuff
Aged about 58 years,
M/s. Select Coffee Works,
Azad Road, Sakaleshpura
Hassan District - 573134.

                                                     ..Petitioner
(By Sri. J.S. Somashekar, Advocate)

AND:

State of Karnataka
by Food Inspector,
O/o. Local (Health) Authority,
Taluk Health Office,
Sakaleshpura,
Hassan District - 573134.

SPP High Court Building
High Court of Karnataka,
Bengaluru. 560 001.
                                                    .. Respondent
(By Sri. V.S. Vinayaka, High Court Govt. Pleader)
                                  ****
                                                    Crl.R.P.No.1094/2018
                                  2


      This Criminal Revision Petition is filed under Section 397 read
with 401 of the Code of Criminal Procedure, 1973, with the
following prayer:

          " (a) Call for records in C.C.No.1022/2008 on the file of
   Civil Judge and JMFC Sakaleshapura and set aside the order of
   conviction and Sentence dated 20.06.2016 passed by the Civil
   Judge and JMFC Sakaleshapura in C.C.No.1022/2008.

         (b)   Set aside the judgment and order of conviction
   confirmed by the learned 5th Additional District and Sessions
   Judge, Hassan, passed in Criminal Appeal No.138/2016 dated
   14.03.2018.

         (c)      Pass and such other/orders that deemed fit in the
   circumstances of case in the interest of justice and equity."


      This Criminal Revision Petition having been heard through
physical hearing/video conferencing hearing and reserved on
04-11-2022, coming on for pronouncement of Orders this day, the
Court made the following:

                            ORDER

The present petitioner was accused in Criminal Case

No.1022/2008, in the Court of the Civil Judge and J.M.F.C., at

Sakaleshpura, (hereinafter for brevity referred to as "the Trial

Court"), who, by the judgment of conviction and order on

sentence dated 20-06-2016 of the Trial Court, was convicted

for the offence punishable under Section 7(i), 7(ii) read with

Section 16 of the Prevention of Food Adulteration Act, 1954 Crl.R.P.No.1094/2018

(hereinafter for brevity referred to as "the Act") and was

sentenced accordingly.

Aggrieved by the same, the accused preferred an appeal

in Criminal Appeal No.138/2016, in the Court of the 5th

Additional District and Sessions Judge at Hassan (hereinafter

for brevity referred to as the "the Sessions Judge's Court"),

which, after hearing both side, dismissed the appeal, by

confirming the judgment of conviction and order on sentence

passed by the Trial Court. It is challenging the judgments

passed by both the Trial Court as well the Sessions Judge's

Court, the accused/petitioner herein has preferred the present

revision petition.

2. The summary of the case of the complainant as

mentioned in his complaint filed under Section 200 of the Code

of Criminal Procedure, 1973 (hereinafter for brevity referred to

as "Cr.P.C.") was that, on the date 20-06-2008, the

complainant, as a Food Inspector, while on his duty at Azad Crl.R.P.No.1094/2018

Road, Sakaleshpura, at about 5:00 p.m., visited a Shop by

name M/s. Select Coffee Works and inspected the coffee seeds

and its powder which were meant for public sale and noticed

that the accused had stored and was selling misbranded and

adulterated coffee powder in his Shop. The complainant, who

was accompanied with his staff, purchased 600 grams of

coffee powder and subjected them for scientific analysis and

through the report from the Analyst, confirmed that the coffee

power was adulterated and misbranded as it was found that

the caffeine content in it was 0.4% and aqueous extract was

55.0% and that it was also misbranded by virtue of non-

printing of batch number and 'best before' on it. Hence, the

complainant alleged that the accused has committed the

offences punishable under Sections 7(i) and 7(ii) and 16(a)(i)

of the Act.

3. The accused appeared in the Trial Court and

contested the matter through his counsel. The accused Crl.R.P.No.1094/2018

pleaded not guilty and claimed to be tried. As such, in order

to prove the alleged guilt against the accused, the prosecution

got examined four (04) witnesses from PW-1 to PW-4, got

marked documents from Exs.P-1 to P-16 and produced two

Material Objects (coffee powder packets) as MO-1 and MO-2.

However, neither any witness was examined nor any

documents were got marked on behalf of the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

5. The Trial Court and the learned Sessions Judge's

Court's records were called for and the same are placed before

this Court.

6. Learned counsel for the accused/revision petitioner

and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

7. Heard the learned counsels from both side. Perused

the materials placed before this Court including the impugned Crl.R.P.No.1094/2018

judgments passed by both the Courts and also the Trial Court

and learned Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision

petition is:

Whether the impugned judgments of conviction and order on sentence passed by the Trial Court and confirmed by the Sessions Judge's Court holding the accused (petitioner herein) guilty for the alleged offences punishable under Sections 7(i), 7(ii) read with Section 16(a)(i) of the Prevention of Food Adulteration Act, 1954, warrants any interference at the hands of this Court?

10. The learned counsel for the revision petitioner in his

argument, canvassed mainly two points. The first point was Crl.R.P.No.1094/2018

that the coffee power was not adulterated, because, even the

Public Analyst report at Ex.P-9 does not say that the

commodity/article was injurious to the health, as such, it does

not attract Clause (l) or Clause (m) of Section 2(ia) of the Act.

His second point of argument was that there was no

misbranding of the commodity since the Shop of the accused

was a small Shop where he is only a retailer in coffee seeds

and coffee powder.

11. Per contra, learned High Court Government Pleader

for the respondent - State in his argument submitted that, it

is not necessary that, under Clause (l) of Section 2 (ia) of the

Act, a commodity should be necessarily injurious to health.

He further submitted that the non-mentioning of the batch

number and non-printing of 'best before' on the cover being

an admitted fact itself is mis branding.

12. The complainant - PW-1(CW-1) -

Sri. Balasubramanya P.N., who got himself examined as PW-1 Crl.R.P.No.1094/2018

in his evidence has stated that, on the date 20-06-2008, at

about 2:00 p.m. he had visited the Indian Coffee Works at

Azad Road at Sakaleshpura and at about 5:00 p.m., he had

visited another Shop by name Select Coffee Works and the

owner of the Shop by name Syed Ahammed was present. He

has also deposed that he had purchased about 600 grams of

coffee powder in 3 different packets of equal quantity (200

grams each) by paying a sum of `60/- and he had obtained a

receipt. Subsequently, he had issued notice under Form No.6

to the accused and had sent the said coffee powder for

scientific analysis. He had also drawn the mahazar at the

place of incident and has deposed that on the date

21-06-2008, he had dispatched the said recovered articles for

examination to the Public Analyst by affixing Form No.7,

memorandum along with sample seal and had kept the two

other packets with the competent authority. On the date

19-08-2008, he had received the report that the said coffee

powder was adulterated and misbranded and had requested Crl.R.P.No.1094/2018

the DHO of the concerned District to permit him to launch the

prosecution against the accused and subsequently the

permission was accorded to the complainant. He has

identified the signature on the mahazar and also he has

produced the relevant documents and the same were marked

as Exs.P-1 to P-15 and he had identified the accused also

before the Court.

Though the complainant (PW-1) was subjected to a

detailed cross-examination, however, except making denial

suggestions, nothing material could be elicited in his cross-

examination, so as to weaken the evidence of PW-1 given in

his examination-in-chief.

13. PW-2 (CW-5) - Dr. B.S. Nagarajurao is the District

Health Officer, who, in his evidence has stated that, he had

granted the permission to the complainant to launch the

prosecution against the accused as per Ex.P-11 and that the Crl.R.P.No.1094/2018

said permission was granted to him after verifying the various

documents.

14. PW-3 (CW-2) - Sri. Raveendra, who is a retired

Health Officer, in his evidence has stated that, PW-1 had

handed over him three packets consisting of coffee powder

suspected to be adulterated. He had given a specimen

number to the same and that PW-1 sent it for analysis to the

Health Analyst at Mysuru. He further stated that, on the date

28-08-2008, they received the report stating that the sample

coffee power that was sent for analysis was adulterated and

accordingly, the prosecution was launched against the

accused. This witness was not cross-examined from the

accused's side.

15. PW-4 (CW-6) - Sri.S.N. Nanjundaiah is the Public

Analyst, who, in his evidence has stated that, while working as

Food Analyst at the Regional Laboratory at Mysore on

the date 23-06-2008, he received the packet in this case and Crl.R.P.No.1094/2018

conducted analysis of the contents of the said packet. He

noticed that the content of caffeine in the commodity was

found to be less and also aqueous content was more than the

required level, as such, he arrived at a conclusion that the said

commodity was adulterated and issued a report as per Ex.P-9.

This witness also was not subjected to cross-examination from

the accused's side.

16. The evidence of PW-2 - the District Health Officer of

the Health and Family Welfare Department, Hassan, would go

to show that, based upon the request made by the

complainant as per Ex.P-10, it is only after going through the

necessary material placed before him, he accorded permission

as per Ex.P-11 for prosecuting the accused for the alleged

offences. Thus, the initiation of criminal action against the

accused was in accordance with law.

17. The mahazar at Ex.P-2 shows that, PW-1 joined by

his staff and in the presence of panchas has drawn the seizure Crl.R.P.No.1094/2018

panchanama. Due to the inability to secure the said pancha -

Sri. Khalandar, despite issuing a non-bailable warrant against

him, the said witness was not examined. However, the

evidence of PW-1 is trustworthy and believable and shows that

he visited the Shop of the accused on the date 20-06-2008

and purchased 600 grams of coffee power from him. He also

obtained a receipt in that regard as per Ex.P-4 from the Shop.

His evidence also would go to show that, he bifurcated the

purchased 600 grams of coffee power into three packets of

equal quantity (200 grams each) and sent the same along

with proper seal affixed on it for the purpose of analysis.

18. The evidence of PW-3 further corroborates the

evidence of PW-1 that, PW-1 had handed over to him itself

three packets containing coffee power suspected to be

adulterated. After that, it was him who had given the

specimen number and sent it for its analysis to the Food

Analyst at Mysore.

Crl.R.P.No.1094/2018

19. The un-denied evidence of PW-3 and PW-4 would go

to show that the article/commodity was sent for its scientific

analysis to PW-4, who conducted analysis and upon the same

issued his report as per Ex.P-9. The said report which is at

Ex.P-9 shows that though the prescribed standard for the

presence of caffeine in the coffee powder was not less than

0.6%, however, the commodity (sample) tested was showing

only 0.4% of caffeine in it. Furthermore, the aqueous

extract, which according to prescribed standard, was to be not

more than 50% was found to be at 55%. The Analyst also

noticed that the label fastened to the article by the seller was

showing that it was manufactured by Select Coffee Works,

Azad Road, Sakaleshpura, but the batch number, 'best before'

and 'veg' or 'Non-veg' symbol were also not printed upon it.

Thus, PW-4, a Public Analyst cum Regional Assistant Chemical

Examiner, Mysore Division, Mysore, came to an opinion that,

the sample analysed by him was adulterated and misbranded.

Crl.R.P.No.1094/2018

The said report at Ex.P-9 and the evidence of PW-4 has

remained undisputed.

20. It is in the light of the above evidence, when the

argument of the learned counsel for the petitioner is analysed,

the learned counsel for the petitioner does not deny the

collection of the commodity by the complainant (PW-1) in the

form of purchase of 600 grams of coffee powder from the

coffee Shop of the accused and getting the same tested

through PW-4 - Public Analyst and receiving the report as per

Ex.P-9. However, his contention is that, since the Public

Analyst and Chemical Examiner (PW-4) has not opined that

the commodity/article was injurious to health, the commodity

tested cannot be called as adulterated. He drew the attention

of the Court to the definition of "adulterated" at Section 2(ia)

and Clause (l) of Section 2(ia) which reads as follows:

"2. Definitions.-In this Act unless the context otherwise requires, -

(i)...

Crl.R.P.No.1094/2018

(ia) "adulterated" - an article of food shall be deemed to be adulterated-

        xxx      xxx    xxx
        xxx      xxx    xxx

(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health."

No doubt the above definition not only mentions that

variation in the constituents than the prescribed standard itself

is not sufficient, but the said variation should render the

article of food injurious to health, however, Clause (m) of the

very same Section 2(ia) of the Act also is required to be read.

The said provision reads as follows:

2(ia)(m): "If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health;

Crl.R.P.No.1094/2018

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.

Explanation.- Where two or more articles of primary food are mixed together and the resultant article of food-

(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and

(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause."

The above section is squarely applicable to the case on

hand.

21. The learned counsel for the revision petitioner could

not able to convince the Court that the article in question

which was the coffee powder was a primary food as defined Crl.R.P.No.1094/2018

under Section 2(xiia) of the Act. Thus, the article/commodity

has proved to be adulterated.

22. Admittedly, the food article sold was not labelled in

accordance with the requirement of the Act and the Rules

made there under, by mentioning its batch number, 'best

before' and 'Veg' or 'Non-veg' symbol, which is clearly an

offence under Section 7(i) and 7(ii) punishable under Section

16(1)(a) of the Act.

23. It is analysing these facts and appreciating the

materials placed before them in their proper perspective, since

both the Trial Court and the Sessions Judge's Court have

properly held the accused as guilty of the alleged offences, I

do not find any reason to interfere in them.

24. It is the sentencing policy that the sentence ordered

must be proportionate to the gravity of the proven guilt of the

accused. It must not be either exorbitant or for namesake.

Crl.R.P.No.1094/2018

25. In the instant case, the present petitioner/accused

was sentenced to undergo simple imprisonment for a period of

six months and to pay a fine of `1,000/-, in default of

payment of fine, to undergo simple imprisonment for a period

of fifteen days. Since in the light of the facts and

circumstances of the case, the sentence ordered by the Trial

Court and confirmed by the Sessions Judge's Court being

proportionate to the gravity of the proven guilt against the

accused, I do not find any perversity, illegality or error in the

impugned judgments warranting any interference at the hands

of this Court.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands

dismissed.

[ii] The revision petitioner/accused -

Sri. Syed Ahammed, to surrender before the Court Crl.R.P.No.1094/2018

of the Civil Judge and J.M.F.C., at Sakleshpur,

within forty-five (45) days from today and to serve

the sentence.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records, immediately.

Sd/-

JUDGE

BMV*