Kerala High Court
Raju vs State Of Kerala on 26 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
CRL.REV.PET NO. 2097 OF 2012
AGAINST THE ORDER/JUDGMENT CC 729/2006 OF THE JUDICIAL
MAGISTRATE OF FIRST CLASS, NEDUMKANDOM
CRA 3/2012 OF THE COURT OF SESSION,THODUPUZHA
REVISION PETITIONER/S:
S.RAJU
S/O.SUBBAYYA NADAR, PAYYAMPALLIL VEEDU
CUMBAMMETTU KARA, KARUNAPURAM VILLAGE
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.DOMSON J.VATTAKUZHY
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM
OTHER PRESENT:
Smt Seetha S, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
Crl.R.P No.2097 of 2012
C.S DIAS,J.
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Crl.R.P No.2097 of 2012
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Dated this the 26th day of October, 2023
ORDER
The revision petition is filed questioning the legality
and correctness of the judgments in Crl.A. No.3/2012 of
the Court of Session, Thodupuzha (Appellate Court) and
C.C. No.729/2006 of the Court of the Judicial First Class
Magistrate, Nedumkandom (Trial Court), holding the
revision petitioner guilty for the offences under Sec.248(2)
of the Code of Criminal Procedure ( in short, Code) and
Sec.2(ia) (f) 7(i) read with Sec.16(1A) (i) of the Prevention
of Food Adulteration Act, ( for brevity, PFA Act) 1954 and
Rule 5 Appendix B A 18-06-08 of the Prevention of Food
Adulteration Rules, 1955 ( in short, PFA Rules). The
revision petitioner was the accused and the respondent
was the complainant before the Trial Court. For the sake of
Crl.R.P No.2097 of 2012
convenience, the parties are referred to as per their status
before the Trial Court.
Prosecution case in brief:
2. The prosecution case is that on 27.7.2006, the
Food Inspector, Permade Circle (PW1), had inspected the
grocery shop run by the accused and purchased 1500
grams of Chana whole (Bengal gram). On sending one of
the samples to the Public Analyst for analysis, by Ext P13
Form III report, it was found that the sample was
adulterated and did not conform to the standards
prescribed under the PFA Rules as it contained uric acid
content to the extent of not less than 356.0 ppm, which
was unfit for human consumption. Hence, the accused
committed the above offences.
3. The accused pleaded not guilty to the substance
of accusation read over to him.
4. The prosecution examined PWs 1 to 4 and
marked Exts P1 to P18 in evidence. The accused denied
the incriminating circumstances that appeared against him
in the evidence in the questioning under Section 313 of the
Crl.R.P No.2097 of 2012
Code. The accused examined DW1 in the defence
evidence.
5. The learned Magistrate, after analysing the
materials on record, found the accused guilty for the
above offences and convicted and sentenced him to
undergo simple imprisonment for a period of two years
and pay a fine of Rs.5000/- and in default to undergo
simple imprisonment for a further period of one month.
6. Aggrieved by the said judgment, the accused
filed Crl.A. No.3/2012 before the Appellate Court.
7. The Appellate Court, after re-appreciating the
materials placed on record, allowed the appeal in part, by
reducing the substantive sentence to one year and to pay a
fine of Rs.2,000/- and in default to undergo simple
imprisonment for a further period of one month.
8. It is challenging the concurrent judgments of the
courts below, the revision petition is filed.
9. Heard; Sri. Mathew John, the learned counsel
appearing for the revision petitioner and Smt.Seetha.S, the
Crl.R.P No.2097 of 2012
learned Public Prosecutor appearing for the respondent -
State.
10. The learned Counsel appearing for the revision
petitioner placed reliance on the judgments of the
Honourable Supreme Court in Pepsico India Holdings
Pvt. Ltd v. Food Inspector and Another [2010 (4) KHC
767] and the Division Bench of this Court in Rasheed v.
Food Inspector [2016 (2) KLT 390] and argued that since
the sample was analysed in a laboratory not recognised
by the Central Government as provided under Section
23(1-A)(ee) of the Act, the prosecution has to fail and the
revision petitioner is to be acquitted. He submitted that
without even going into merits of the other grounds urged,
the revision petition is to be allowed.
11. The learned Public Prosecutor on the contrary
contended that the decision in Pepsico India Holdings
Pvt. Ltd. (supra) needs to be reconsidered, particularly
because Section 8 of the Act enables the Central
Government and the State Government to appoint a Public
Crl.R.P No.2097 of 2012
Analyst for the local areas as assigned by the Central
Government and State Government. In the State of Kerala,
Public Analysists have been appointed invoking the above
provision. Therefore, the decision in Pepsico India
Holdings Pvt. Ltd. (supra) has no application to the case
on hand. Hence, the revision petition may be dismissed.
12. Is there any illegality, impropriety or irregularity
in the impugned judgments.
13. The Hon'ble Supreme Court rendered the
judgment in Pepsico India Holdings Private Ltd.(supra)
on 18.11.2010. Subsequent to the pronouncement of the
judgment, there were several cases filed before this Court
to quash the proceedings initiated under the Act.
14. There was cleavage of opinion and divergent
views taken by three learned Single Judges of this Court in
interpreting the ratio decidendi in Pepsico India
Holdings Private Ltd.(supra).
Crl.R.P No.2097 of 2012
15. Due to cleavage of opinion in interpreting the
above judgment, a bunch of cases were referred to a
Division Bench of this Court for an authoritative
pronouncement.
16. Accordingly, in Rasheed v. Food Inspector
(supra), a Division Bench of this Court, on a threadbare
analysis of the law laid down in Pepsico India Holdings
Private Ltd. (supra), has answered the reference in the
following manner:
"18. Bearing in mind the fact that the Hon'ble Apex Court in
Pepsico's case (supra) held that the provisions under S.23(1A)(ee)
and (hh) are not directory and that this Court has erred in holding
that they are only enabling provisions we will proceed further to
answer the referred questions. For answering the terms of
reference a broad understanding of the said declaration is
necessary. When once the Hon'ble Apex Court held that the
said provisions are not directory and the failure to adhere
to the provisions cannot be said to be not fatal to the
prosecution it has to be understood and applied in all
cases where a public analyst was to carry out an analysis
and to give a report to form the basis for launching the
prosecution. Thus, evidently, for that purpose the report
should be one made after conducting an analysis in a
laboratory defined under S. 23(1A)(ee). It is to be noted that
after the decision in Pepsico's case (supra) by the Hon'ble Apex
Court a notification was followed whereby Rule in relation to
S.23(1A)(hh) was framed as R. 4(9) of the PFA Rules. Thus, in the
Crl.R.P No.2097 of 2012
light of Pepsico's case (supra) in order to be reliable and
to be taken the basis for the purpose of launching
prosecution a report by a public analyst must be one
made after conducting an analysis in a laboratory defined
under S.23(1A)(ee) of the Act. In that context the
indisputable common case is that till the repealing of
1954 Act no laboratory was defined in terms of the
provision under S.23(1A)(ee). If that be so, there could
not have been any question of conducting an analysis by a
public analyst under the PFA Act in a laboratory defined
under S. 23(1A)(ee) of the PFA Act. In view of the above
findings and conclusions we will answer the questions referred.
First question referred is as follows: (1) Could all the prosecutions
under the Act of 1954 be stifled by raising a contention that the
laboratories or methods of analysis were not defined? In the light
of what we have held herein before the said it can only be answered
in the following manner: Wherever an 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
prosecution under the PFA Act the report of the analyst in
relation to that sample must be one conducted in a
laboratory defined under S.23(1A)(ee). 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 item concerned as adulterated
there cannot be any successful prosecution in the absence
of such a report. In such circumstances the prosecution
proceedings have to be terminated for the failure to
define laboratories in terms of S. 23(1A)(ee) and the
consequential failure to conduct an analysis of the
particular sample by the public analyst from such a
laboratory. In other words taking note of the nature of the food
Crl.R.P No.2097 of 2012
article involved and the method to be employed to find out the
adulteration if an analysis from a laboratory is not at all required in
such circumstances the prosecution cannot be stifled on the ground
that the laboratories in terms of provisions under S.23(1A)(ee)
were not defined. It cannot be said that all the prosecutions under
the 1954 Act should be stifled owing to the failure to define
laboratories in terms of S.23(1A)(ee) as there may be cases
registered against persons for contravention of the provisions
under S.16(1)(c), S.16(1)(d) and S.14A (Prevention of Food
Adulteration Act, 1954). So also a case where the Article in food
was lifted and sent for analysis prior to the introduction of the
provisions under S.23(1A)(ee) viz. 01/04/1976 cannot be stifled as
anything previously done could not be invalidated owing to the
failure to define laboratory in terms of S.23(1A)(ee) in view of the
provisions under S.23(2). In the context of the term of
reference No. 1 it is to be noted that subsequent to
Pepsico's case (supra) the method of analysis was, in fact,
defined and it was brought into by incorporating R.9(4)
in the PFA Rules with effect from 25/03/2008.
19. The second question referred is as hereunder: (2) Is it
proper to hold that since Central Government has not taken steps
to effectuate S.23(1A)(ee) and (hh) of the Act of 1954, no
prosecution will lie under the Act of 1954 even if it is established
that the standards prescribed for various food items have been
flouted? In respect of items of food articles where, for
holding that the standard prescribed for the same was
flouted or it was not maintained if an analysis from a
laboratory is inevitable in such cases also if the analysis
was conducted by the public analyst under the PFA Act in
a laboratory not defined in terms of S.23(1A)(ee), in the
light of Pepsico's decision, no prosecution will lie based a
report made after such an analysis. The last question referred
is follows: (3) Whether the ratio in Pepsico's case (supra) can be
Crl.R.P No.2097 of 2012
applied to all cases of alleged food adulteration under the Act of
1954 irrespective of the fact whether or not standards have been
prescribed for food items? In cases where standard is prescribed or
in respect of a food item to say that the said item of food is
adulterated and to launch the prosecution, if an analysis from a
laboratory by a public analyst is inevitable in such circumstances
also the ratio in Pepsico's case (supra) will be applicable. In the
light of the answers to the referred questions it has become
absolutely unnecessary to go into the question referred herein
before based on the decision in Narayana Reddiar's case which was
declined to be referred.
20. Having answered the reference as above, we are of the
view that the fate of the criminal revision petitions and the Crl MCs
depend upon the question whether in respect the item of food
involved in individual cases, the sample of which was collected, an
analysis from a laboratory is required or not for holding the same
as adulterated. If the answer is in the affirmative
necessarily in the absence of a report made after an
analysis from a laboratory defined in terms of the
provisions under S.23(1A)(ee) there can be no successful
prosecution. We will therefore, consider the individual cases in
the aforesaid manner and in the light of the answers to the referred
questions. Needless to say that if the answer to the aforesaid
question in respect of a particular case is in the negative there can
be no legal impediment in continuing with the prosecution. In view
of the fact that till the repealing of the said Act no laboratories were
defined in terms of S.23(1A)(ee) all those cases have to be decided
based on a consideration as aforesaid."
(emphasis given by me)
17. The exposition of law in Rasheed v. Food
Inspector (supra), following the declaration in Pepsico
Crl.R.P No.2097 of 2012
India Holdings Private Ltd (supra) leaves no room for
any further interpretation on the question that, if an
allegedly adulterated food sample is not analysed in a
laboratory under Section 23(1-A)(ee) of the Act, the same
is fatal to the prosecution and the prosecution has to
necessarily fail.
18. In the instant case, the prosecution was launched
on the basis of Ext P13 report of the Public Analyst on the
ground that the sample that was seized from the accused
was not conforming with the standards prescribed under
the PFA Rules as it contained uric acid. Admittedly, the
sample was tested by the Public Analyst in a laboratory not
notified by the Central Government under Section 23(1-A)
(ee) of the Act. Thus, the ratio decidendi in Pepsico India
Holdings Private Ltd and Rasheed vs. Food Inspector
(supra) stands attracted and prosecution fails.
Crl.R.P No.2097 of 2012
Consequentially, the revision petitioner/ accused is found
not guilty and has to be acquitted.
19. In the result,
(i) The revision petition is allowed;
(ii) The impugned judgments in Crl.Appeal No.3/2012
and in C.C. No.729/2006 of the courts below are set
aside.
(iii) The revision petitioner is held not guilty and is
acquitted, and is set at liberty.
(iv)The bail bonds executed by the revision petitioner
and his sureties are hereby cancelled.
sd/-
Sdsd/-sd/-
C.S.DIAS,JUDGE
sks/26.10.23 //True copy//
P.A.To Judge
