Kerala High Court
Mohanan.P. & Another vs Food Inspector &Another on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
CRL.REV.PET NO. 66 OF 2011
AGAINST THE JUDGMENT DATED 29/10/2010 IN CRA 71/2008 OF IIIRD
ADDITIONAL SESSIONS COURT KOZHIKODE
JUDGMENT DATED 16.1.2010 INCC 238/2005 OF JUDICIAL MAGISTRATE OF
FIRST CLASS, KOYILANDY,
REVISION PETITIONERS/APPELLANTS/ACCUSED:
1 MOHANAN.P. & ANOTHER, AGED 55, PONGILODY HOUSE,
THALAKKULATHUR POST,, KOZHIKODE DISTRICT.
2 LOKESHAN SO.CHATHUKUTTY KURUP, AGED 51, XIII/574, AKSHAYA
BAKERY,, PARAMBATH, THALAKKULATHUR, KOZHIKODE DISTRICT(DIED)
*3 VASANTHA K., AGED 49, W/O LATE LOKESHAN, PULIYATHADATH(H)
THALAKULATHUR PO, KOZHIKODE DISTRICT 673317
*4 VIPIN LOKESH, AGED 25, S/O LATE LOKESHAN,
PULIYATHADATH(H) THALAKULATHUR PO, KOZHIKODE DIST- 673317
*5 VIPINA LOKESH, AGED 22, D/O LATE LOKESHAN,
PULIYATHADATH(H) THALAKULATHUR PO, KOZHIKODE DIST- 673317
*ADDITIONAL PETITIONERS 3 TO 5 ARE IMPLEADED AS PER ORDER
DATED 10.8.2020 IN CRL.M.A 1823/16
BY ADVS. SRI.K.K.JAYARAJ NAMBIAR
SMT.RAMYA PRASAD
RESPONDENTS/RESPONDENTS-COMPLAINANT & STATE:
1 FOOD INSPECTOR, KOZHIKODE DISTRICT.
2 STATE OF KERALA REPRESENTED
HIGH COURT OF KERALA,,ERNAKULAM.
SRI SANAL P RAJ,PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P.No.66/2011
-:2:-
ORDER
Dated this the 25th day of November, 2021
This revision petition is directed against the judgment dated
29/10/2010 in Crl.Appeal No.71/2008 on the file of the III rd
Additional Sessions Court, Kozhikode (for short, the appellate
court) confirming the judgment dated 16/1/2010 in CC
No.238/2005 on the file of the Judicial First Class Magistrate
Court, Koyilandy (for short, the trial court).
2. The revision petitioners are the accused Nos.1 and 2.
They faced trial for the offence punishable under Section 16(1-A)
(i) read with Sections 2(ia)(j) and 7(i)(v) of the Prevention of
Food Adulteration Act (for short, the PFA Act) and Rule 29 of
Prevention of Food Adulteration Rules (for short, the PFA Rules)
and the second accused also faced trial under Section 16(1)(a)(ii)
of the PFA Act read with Rule 50 of the PFA Rules.
3. The case of the prosecution in short is that on
23/9/2004 at about 11.00 a.m, PW1, the Food Inspector of
Kozhikode Circle inspected Akshaya Bakery at Parambath,
Crl.R.P.No.66/2011
Thalakkulathur, functioning in Door No.TP XIII/574 belonging to
the second accused and purchased 600 grams of banana chips
from the first accused who was found conducting 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 confirm with the standard
prescribed and it contained synthetic food colour "tartrazine"
and, hence, adulterated. The PFA licence of the shop stood in the
name of the second accused. On receipt of the report of the
public analyst that the sample was adulterated, prosecution was
launched against the first and second accused.
4. The accused Nos.1 and 2 appeared at the court below.
The particulars of the offences were read over and explained to
the accused. They pleaded not guilty. After hearing both sides,
charge was framed by the trial court against the accused. The
charge was read over and explained to them who pleaded not
guilty. On the side of the prosecution, PW1 to PW4 were
examined and Exts.P1 to P20 were marked. After trial, the trial
court found both the accused guilty under Sections 16(1-A)(i)
read with 2(ia)(j) and 7(i)(v) of the PFA Act and Rule 29 of the
Crl.R.P.No.66/2011
PFA Rules. The accused No.2 was further found guilty for
violation of Rule 50 of the PFA Rules and they were convicted for
the said offence. The accused Nos. 1 and 2 were sentenced to
undergo rigorous imprisonment for two years each and to pay a
fine of Rs.2,000/- each for the offence under Sections 16(1-A)(i)
read with 2(ia)(j) and 7(i)(v) of the PFA Act and Rule 29 of the
PFA Rules. The accused No.2 was sentenced to undergo rigorous
imprisonment for a period of six months and to pay a fine of
Rs.1,000/- for the offence punishable under Rule 50 of the PFA
Rules with Section 16(1)(a)(ii) of the PFA Act. In appeal, the
appellate court confirmed the conviction and the substantive
sentence was modified from rigorous imprisonment to simple
imprisonment. In all other respects, the judgment of the trial
court was confirmed. Aggrieved by the conviction and sentence
of both the courts below, the accused 1 and 2 preferred this
revision petition.
5. During the pendency of this revision, the second
accused died. His legal heirs were impleaded as revision
petitioners 3 to 5.
6. I have heard Sri.K.K.Jayaraj Nambiar, the learned
Crl.R.P.No.66/2011
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.P10 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
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.P10 report submitted by the public analyst,
Crl.R.P.No.66/2011
following whatever method they choose cannot be relied on to
sustain the conviction against the accused under Section 16(1-A)
(i) read with Sections 2 (ia)(j) and 7(i)(v)) 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
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
Crl.R.P.No.66/2011
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 analysis as
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,
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.66/2011
9. Coming to the facts of the present case, Ext.P10 would
show that the method of analysis as per which the public analyst
has found synthetic food colour "tartrazine" is present in the
sample is ISI method. The sampling was done on 23/9/2004 and
the analysis was done on 15/10/2004. There is no case for the
prosecution that the ISI method is a method defined as per the
provisions of the Act as on the date of sample or on the date of
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 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.P10 cannot be relied on is only to be accepted. Hence, the
impugned judgments convicting and sentencing the accused
under Section 16(1-A)(i) read with Sections 2(ia)(j) and 7 (i)(v)
of the PFA Act and Rule 29 of the PFA Rules based on Ext.P10
cannot be sustained. The accused are entitled for acquittal.
Crl.R.P.No.66/2011
The first accused is acquitted of all the offences charged
against him. The second accused is acquitted of the offences
charged against him under Section 6(1-A)(i) read with Sections
2(ia)(j) and 7 (i)(v) of the PFA Act and Rule 29 of the PFA Rules.
However, the conviction against the accused No.2 for violation of
Rule 50 of the PFA rules read with Section 16(1)(a) (ii) will stand.
As stated already, the 2nd accused is no more. The substantive
sentence imposed on accused No.2 under Rule 50 of the PFA
Rules with Section 16(1)(a)(ii) of the PFA Act stood abated u/s
294(1) of IPC on the death of the 2 nd accused. It is submitted by
the learned counsel for the revision petitioners that the fine
imposed under Section 6(1-A)(i) read with Sections 2(ia)(j) and
7 (i)(v) of PFA Act and Rule 29 of PFA Rules has already been
paid. The revision petition is allowed as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp True copy
P.A. To Judge
