Kerala High Court
M. Navas 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. 2560 OF 2012
AGAINST THE ORDER/JUDGMENT CC 394/2002 OF THE JUDICIAL
MAGISTRATE OF FIRST CLASS ,KUTHUPARAMBA
CRA 460/2005 OF THE COURT OF SESSION, THALASSERY
REVISION PETITIONER/S:
M. NAVAS
AGED 35 YEARS, K.P. VI 356, GROCERY SHOP, KOLAYAD
RESIDING AT MARUTHUMPALLY HOUSE, PALLIPALAM,
KOLAYAD P.O, KOLAYAD AMSOM DESOM, KANNUR DISTRICT
BY ADV SRI.C.P.PEETHAMBARAN
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY 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.2560 of 2012
C.S DIAS,J.
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Crl.R.P No.2560 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.460/2005 of
the Court of Session, Thalasserry (Appellate Court) and
C.C. No.394/2002 of the Court of the Judicial First Class
Magistrate, Kuthuparamba (Trial Court), finding the
revision petitioner guilty and convicting and sentencing
him for the offences under Sections 16 (1) a (i) read with
Sec.2(ia)m, (ix)k and Sec.7(i) and (ii) of the Prevention of
Food Adulteration Act, ( for brevity, PFA Act) 1954. The
revision petitioner was the first accused and the
respondent was the complainant before the Trial Court.
For the sake of convenience, the parties are referred to as
per their status before the Trial Court.
Crl.R.P No.2560 of 2012
Prosecution case in brief:
2. The prosecution case is that, on 4.7.2002, the
Food Inspector, Kuthuparamba Circle (the complainant),
inspected the shop of the first accused. He purchased
three bottles of synthetic vinegar. On analysis of one of
the samples, as per Ext P13 Form III report of the Public
Analyst, it was found that the sample was not conforming
to the standard prescribed under the PFA Rules.
Therefore, the sample was adulterated and the accused
committed the above offences.
3. The second accused was the licensee of the
sample and the third accused was the licensee of the shop
room.
4. The accused denied the substance of accusation
read over to them.
5. In the trial, PWs 1 to 4 were examined and Exts
P1 to P29 were marked in evidence. The accused
produced and marked Ext D1 certificate of registration in
evidence.
Crl.R.P No.2560 of 2012
6. The learned Magistrate, after analysing the
materials on record, found the accused Nos. 1& 2 guilty
and convicted them for the above offences and sentenced
them to undergo rigorous imprisonment for a period of
three months and pay a fine of Rs.500/- and in default to
undergo rigorous imprisonment for a further period of two
weeks. The third accused was found not guilty of the
offences.
7. Aggrieved by the said judgment, the accused 1
and 2 filed Crl.A. No.460/2005 before the Appellate Court.
During the pendency of the appeal, the second accused
died.
8. The Appellate Court, after re-appreciating the
materials placed on record, by the impugned judgment,
found the first accused guilty and confirmed the conviction
and sentence passed by the Trial Court. However, the
appeal as against the second accused was dismissed as
abated.
9. It is aggrieved by the concurrent judgments of
the courts below, the revision petition is filed.
Crl.R.P No.2560 of 2012
10. Heard; Sri. C.P Peethambaran, the learned
counsel appearing for the revision petitioner and
Smt.Nima Jacob, the learned Public Prosecutor appearing
for the respondent - State.
11. 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.
12. The learned Public Prosecutor on the contrary
contended that the decision in Pepsico India Holdings
Pvt. Ltd. (supra) needs to be reconsidered, particularly
Crl.R.P No.2560 of 2012
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
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.
13. Is there any illegality, impropriety or irregularity
in the impugned judgments.
14. 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.
15. There was cleavage of opinion and divergent
views taken by three learned Single Judges of this Court in
Crl.R.P No.2560 of 2012
interpreting the ratio decidendi in Pepsico India
Holdings Private Ltd.(supra).
16. 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.
17. 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
Crl.R.P No.2560 of 2012
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 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)
Crl.R.P No.2560 of 2012
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) 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
Crl.R.P No.2560 of 2012
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 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)
Crl.R.P No.2560 of 2012
18. 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
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.
19. In the instant case, the prosecution was launched
on the basis of Ext P13 report finding that the sample that
was seized from the shop room of the accused to be
adulterated because it did not conform to the standards
prescribed under the PFA Rules. 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
Crl.R.P No.2560 of 2012
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.
20. In the result,
(i) The revision petition is allowed;
(ii) The impugned judgments in Crl.Appeal
No.460/2005 and in C.C. No.394/2002 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
