Karnataka High Court
Sri Rasheed Pasha vs The Food Inspector on 17 July, 2023
Bench: S Rachaiah
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CRL.RP No. 544 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 544 OF 2014
BETWEEN:
1. SRI. RASHEED PASHA
AGED ABOUT 50 YEARS
S/O GULAM AHMED
M/S. GROCERY STORES
OPP. PLD BANK, B.M.ROAD
ALUR, HASSAN DISTRICT - 580 001.
2. M/S. G.R.G. DAIRY PRODUCT
PRIVATE LIMITED
121-H, BOMMASANDRA
INDUSTRIAL AREA
HOSUR ROAD
BANGALORE - 560 099.
REPRESENTED BY:
S.H.SOMASHEKARAPPA
...PETITIONERS
(BY SRI. ASHOK G.V ADVOCATE FOR
VENKATESH MURTHY G.K)
AND:
THE FOOD INSPECTOR
TALUK HEALTH CENTRE
ALUR, HASSAN DISTRICT - 580 001.
...RESPONDENT
(BY SRI. RAHUL RAI.K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO ALLOW THIS REVISION PETITION AND SET ASIDE THE
JUDGMENT DATED 04-09-2013 IN C.C.NO.403/2008 PASSED
BY THE LEARNED CIVIL JUDGE & JMFC, ALUR AND JUDGMENT
DATED 24-06-2014 IN CRIMINAL APPEAL NO.171/2013
PASSED BY THE LEARNED PRINCIPAL DISTRICT & SESSIONS
JUDGE, HASSAN AND ETC.,
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CRL.RP No. 544 of 2014
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 05.06.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
1. This Criminal Revision Petition is filed by the
petitioners, being aggrieved by the judgment of conviction and
order of sentence dated 04.09.2013 in C.C.No.403/2008 on
the file of the Court of the Civil Judge and J.M.F.C., Alur and its
confirmation judgment and order dated 24.06.2014 in
Crl.A.No.171/2013 on the file of the Court of the Principal
Sessions Judge at Hassan seeking to set aside the concurrent
findings recorded by the Courts below, wherein the petitioners /
accused are convicted for the offences punishable under
Sections 7(i), 16(a)(i) of Section 16 of Prevention of Food
Adulteration Act, 1954 (for short 'PFA Act').
2. The petitioners are the accused before the Trial
Court and appellant before the Appellate Court.
Brief facts of the case are as under:
3. It is the case of the prosecution that, the
respondent visited the shop of the petitioners No.1, on
15.05.2008, which is situated at Alur, Hassan District and
collected the sample of ghee by drawing a mahazar and sent
CRL.RP No. 544 of 2014
the said sample for chemical analysis to the Divisional Public
Analyst-cum-Regional Assistant Chemical Examiner, Mysuru
Division, Mysuru. On receiving the chemical analysis report
from the Analyst, it is found that the sample which was drawn
by the complainant is adulterated ghee. A complaint came to
be lodged by the complainant in accordance with law against
the petitioners and after registration of criminal case, the Trial
Court opined that the petitioners are found prima facie guilty of
the offences under Sections 7(i), 16(a)(i) of Section 16 of
Prevention of Food Adulteration Act, 1954 (for short "PFA Act").
4. To prove the case of the prosecution, the
prosecution examined, in all, 6 witnesses namely PWs.1 to 6
and got marked Exhibits P1 to P22 and identified material
objects M.O.1 and M.O.2 On the other hand, the accused has
not led any evidence nor marked any documents on his behalf.
The Trial Court after appreciating the oral and documentary
evidence on record, convicted the petitioners for the offences
stated supra. Being aggrieved by the same, the petitioners
preferred an appeal before the Appellate Court, the Appellate
Court confirmed the judgment of conviction rendered by the
Trial Court. Being aggrieved by the same, the petitioners have
CRL.RP No. 544 of 2014
preferred this revision petition seeking to set aside the
concurrent findings.
5. Heard Shri Ashok G.V, learned counsel appearing
on behalf of Shri Venkatesh Murthy G.K., learned counsel for
the petitioners and Shri Rahul Rai K, learned High Court
Government Pleader for the respondent - State.
6. It is the submission of the learned counsel for the
petitioners that, the complainant who stated to have taken
samples from the petitioners No.1 shop is not the competent
person to function as Food Inspector as per Section 9 of the
PFA Act and he is not authorised to collect any samples.
Hence, the samples collected by the complainant and
investigation conducted by him is against the principles of law.
7. It is further submitted that, PW.4 claims to be
Analyst who analysed the sample and issued certificate as per
Ex.P13. However, he was not appointed as a Public Analyst as
per Section 8 of the PFA Act. Hence, the report ought not to
have been considered by the Courts below. In addition to the
two main core points which were raised by the learned counsel
for the petitioners, he also highlighted an error that the Food
CRL.RP No. 544 of 2014
Inspector has not followed the procedure prescribed under
Rules 18, 11(1)(a) and also Rule 12(1) of the Karnataka
Prevention of Food Adulteration Rules, 1986 (for short 'KPFA
Rules').
8. It is also his further contention that, the Trial Court
and the Appellate Court failed to appreciate the facts and
circumstances of the case properly and the learned counsel
pointed out one of the errors committed by the Courts below
namely Rule 22 of the KPFA Rules. Rule 22 of the KPFA Rules
prescribes a procedure to send the ghee for chemical analysis.
As per the said Rule, minimum 200 gms., of ghee should be
sent for analysis. However, the complainant has sent 200 ml.,
of ghee which roughly comes around 182 gms. Hence, the rule
has not been followed by the authority. On this ground, the
learned counsel for the petitioners prays to set aside the
concurrent findings recorded for conviction by the Courts
below.
9. Per contra, learned High Court Government Pleader
(for short 'HCGP') justified the concurrent findings and prays to
dismiss the petition.
CRL.RP No. 544 of 2014
10. Having heard the rival contentions urged by the
learned counsels for the respective parties and also perused the
judgments of the Courts below, the points which arise for my
consideration are:
i) Whether the concurrent findings recorded by
both the Courts below in convicting the petitioners
for the offences under Sections 7(i), 16(a)(i) of
Section 16 of Prevention of Food Adulteration Act,
1954 are sustainable?
ii) Whether the petitioners have made out
grounds to interfere with the concurrent findings
recorded by both the Courts below for conviction?
11. This Court being a Revisional Court, having regard
to the scope and ambit envisaged to appreciate the facts and
law, it is necessary to have a cursory look upon the findings,
evidence of all the witnesses and also the law, to ascertain as
to whether any illegality or perversity or error committed by
the Courts below in recording the conviction.
12. The evidence of PW.1 clearly indicates that, he was
working as Food Inspector at Alur and it is stated that, he was
CRL.RP No. 544 of 2014
appointed by the State Government vide its official gazette
produced as per Ex.P1. Similarly, he has produced and marked
Exs.P2, P3 and also Ex.P4 to substantiate that he was assigned
some responsibility and work relating to eradicate or regulate
the food adulteration. In the cross-examination, when he was
questioned as to suitability to discharge of duty as Food
Inspector, he justified his appointment as Food Inspector and
stated that he was drawing salary equivalent to Junior Health
Assistant. Further in the cross-examination, he has admitted
that, he has not issued the notice to the company which
manufactures Revathi ghee in form No.16 as per the procedure.
It is also admitted that, he has sent 200 ml., of ghee for
chemical analysis. Inspite of lengthy cross-examination, he
withstood the cross-examination and the entire evidence of this
witness indicates that he has supported the case of the
prosecution. Though a specific question was put to him that he
has not sent the ghee which he has allegedly seized from the
shop of petitioners No.1, he has denied the same and asserted
in his evidence that the ghee was sent for chemical analysis.
Except the validity of his appointment being challenged,
nothing has been elicited to show that he has not visited the
shop and he has not seized the ghee etc.
CRL.RP No. 544 of 2014
13. It is also noticed here that, both the Courts have
erred in ignoring the non-compliance of Rules 3 and 9 of the
Karnataka Prevention of Food Adulteration Rules, 1986 (for
short "KPFA Rules") where it is provided that, the local
authority shall, on receiving the parts of sample sent by Food
Inspectors, compare the seal on the container and outer cover
with the specimen impression, note the conditions of the seal
thereon and shall keep them under safe custody. As per Rule
9, the local authority shall ensure that, the instructions and
directions issued by the Central Government and Food
Authority showing the issue of paper slips to the Food
Inspectors and shall send the specimen signature to the
concerned public analyst for examination.
14. Admittedly, in this case, PWs.1 and 2 have not
produced any proof for having complied the provisions. Now, it
is relevant to refer the judgment of Co-Ordinate Bench of this
Court in the case of H.L.Nellashekara v. Food Inspector,
Primary Health Centre1, para Nos.11 and 12 read thus:
"11. Similar is the position of law in the case of
KATTAMASU VENKATA PULLA RAO V. STATE OF
ANDHRA PRADESH (SUPRA) so also in the case of
MUNICIPAL COUNCIL, KOTA V. KANHAIYA LAL,
ILR 2006 Kar 933
CRL.RP No. 544 of 2014
(SUPRA). In the decision rendered by this Court in
the case of STATE OF KARNATAKA V. DOLPHY
ALBUQUERQUE, (SUPRA) wherein at the end of para
3 it is observed thus:
"It has rightly been held that what is stated
in the form about the comparison cannot be
read as substantive evidence and it is
obligatory, like any other fact, for the
prosecution to prove the seal on the
container and the outer cover compared
with the specimen received separately and
the conditions of the seals thereon. It cannot
be disputed that such evidence has not been
adduced in this case."
It is clear from the decision supra that unless there is
evidence to show that the seal on the container and
the outer cover compared with the specimen received
separately, it cannot be held that the seal was sent
separately as required under Rule 18 of the Rules.
12. The present case also stand on the same footing
wherein the seal has not been sent separately and
thereby the mandatory requirement of Section 18 of
the Act are not complied. On that account itself, that
the accused ought to have been acquitted which has
been lost sight by both the Courts below."
15. On careful perusal of the above said observation
made by the Co-ordinate Bench of this Court, it appears that,
the procedure established under Rule 18 of the KPFA Rules
which is mandatory and non-compliance of said Rule 18 of the
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CRL.RP No. 544 of 2014
KPFA Rules, the benefit for not having complied the Rule should
be given to the petitioners as benefit of doubt and he should be
acquitted for the above said offences.
16. Considering the facts and circumstances of the case
and also the procedural irregularity committed by the
complainant, in addition to the irregularities, the Trial Court and
Appellate Court failed to consider the evidence and also failed
to apply the appropriate law while considering the case and
also appreciate the evidence which requires to be reconsidered
by invoking the revisional jurisdiction.
17. In the light of the observations made above, the
points which arose for my consideration are answered as
under:-
Point No.(i) - "Negative"
Point No.(ii) - "Affirmative"
18. Hence, I proceed to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence, dated 04.09.2013 passed in
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CRL.RP No. 544 of 2014
C.C.No.403/2008 by the Court of the Civil Judge
and J.M.F.C., Alur and judgment and order dated
24.06.2014 passed in Crl.A.No.171/2013 by the
Court of the Principal Sessions Judge at Hassan,
are set aside.
(iii) The petitioners are acquitted for the offences
punishable under Sections 7(i), 16(a)(i) of
Section 16 of Prevention of Food Adulteration
Act, 1954.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
UN
