Kerala High Court
Jose 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. 2042 OF 2012
AGAINST THE ORDER/JUDGMENT CRA 522/2011 OF THE COURT OF
SESSION,ERNAKULAM
ST 4364/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS
I ,PERUMBAVOOR
REVISION PETITIONER/S:
JOSE.T.J
AGED 55 YEARS, S/O. JOHN, VETTIKKATTUMALAYIL
HOUSE, EAST MARADY.P.O, MUVATTUPUZHA.
BY ADV SRI.JESWIN P.VARGHESE
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
OTHER PRESENT:
SMT.NIMA JACOB, 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.2042 of 2012
C.S DIAS,J.
---------------------------
Crl.R.P No.2042 of 2012
-----------------------------
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.522/2011 of
the Court of Session, Ernakulam (Appellate Court) and ST
No.4364/2006 of the Court of the Judicial First Class
Magistrate-I, Perumbavoor (Trial Court), holding the
revision petitioner guilty for the offences under Sec.2(ia)
(a) 7(i) (v) read with Sec.16 (ia) (ii) of the Prevention of
Food Adulteration Act, ( for brevity, PFA Act) 1954 read
with Sec.32(e) (f) and 50 of the Prevention of Food
Adulteration Rules ( for brevity, PFA Rules) and convicting
and sentencing him for the above offences. The revision
petitioner was the first accused and the respondent was
the complainant before the Trial Court. For the sake of
Crl.R.P No.2042 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 22.2.2006, the
Food Inspector, Perumbavoor Circle (the complainant),
found the first accused engaged in selling food articles in a
vehicle bearing registration No.KL-5B/3904 which
belonged to the second accused. The Food Inspector
purchased banana chips weighing 200 grams from the
accused. On sending a sample for analysis to the Public
Analyst, it was reported by Ext P12 Form III report that the
sample was adulterated as it contained synthetic colour of
tartrazine. 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 3 and marked
Exts P1 to P23 in evidence. The accused examined DW1.
Crl.R.P No.2042 of 2012
5. The learned Magistrate, after analysing the
materials on record, found the first accused guilty for the
above offences and convicted and sentenced him to
undergo simple imprisonment for a period of three
months and pay a fine of Rs.1,000/- and in default to
undergo simple imprisonment for a further period of three
months.
6. Aggrieved by the said judgment, the first accused
filed Crl.A. No.522/2011 before the Appellate Court.
8. The Appellate Court, after re-appreciating the
materials placed on record, by the impugned judgment,
dismissed the appeal confirming the judgment of the Trial
Court.
7. It is aggrieved by the concurrent judgments of the
courts below, the revision petition is filed.
8. Heard; Sri. Jeswin P.Varghese, the learned
counsel appearing for the revision petitioner and Smt.Nima
Jacob, the learned Public Prosecutor appearing for the
respondent - State.
Crl.R.P No.2042 of 2012
9. 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.
10. 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
Analyst for the local areas as assigned by the Central
Crl.R.P No.2042 of 2012
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.
11. Is there any illegality, impropriety or irregularity
in the impugned judgments.
12. 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.
13. 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).
14. Due to cleavage of opinion in interpreting the
above judgment, a bunch of cases were referred to a
Crl.R.P No.2042 of 2012
Division Bench of this Court for an authoritative
pronouncement.
15. 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
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
Crl.R.P No.2042 of 2012
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
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)
Crl.R.P No.2042 of 2012
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 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
Crl.R.P No.2042 of 2012
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)
16. The exposition of law in Rasheed v. Food
Inspector (supra), following the declaration in Pepsico
India Holdings Private Ltd (supra) leaves no room for
any further interpretation on the question that, if an
Crl.R.P No.2042 of 2012
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.
17. In the instant case, the prosecution was launched
on the allegation that, as per Ext P12 Form III report of the
Public Analyst, the sample that was seized from the
possession of the first accused was adulterated as it
contained the synthetic colour tartrazine. Indisputably,
the Public Analyst conducted the analysis 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. Consequentially, the revision petitioner/ first accused
is found not guilty and has to be acquitted.
Crl.R.P No.2042 of 2012
18. In the result,
(i) The revision petition is allowed;
(ii) The impugned judgments in Crl.Appeal
No.522/2011 and in ST No.4364/2006 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/-
Sd/-
C.S.DIAS,JUDGE
sks/26.10.23 //True copy//
P.A.To Judge
