M.Shibu vs State Of Kerala
2023 Latest Caselaw 11131 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
   FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
                     CRL.REV.PET NO. 815 OF 2013


  AGAINST THE JUDGMENT DATED 03.02.2007 IN ST NO.1697/2000 OF
         JUDICIAL MAGISTRATE OF FIRST CLASS-III, PUNALUR

 CRA NO.91/2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM
REVISION PETITIONERS/APPELLANTS/ACCUSED:

    1     M.SHIBU,
          AGED 42 YEARS,
          S/O. I.K.MEHAROOF, SHIBU MANZIL,
          MANCHALLOOR, PATHANAPURAM P.O.

    2     I.K.MEHAROOF,
          AGED 62 YEARS,
          SHIBU MANZIL, MANCHALLOR, PATHANAPURAM P.O.,
          KOLLAM DISTRICT.

          BY ADVS.     SRI.S.RAJEEV
                       SRI.K.K.DHEERENDRAKRISHNAN


RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE:

    1     STATE OF KERALA
          REP.BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,
          ERNAKULAM-682 031.

    2     FOOD INSPECTOR
          PUNALUR CIRCLE,
          KOLLAM DISTRICT-691 001.


OTHER PRESENT:

          SR PP SMT SEETHA S

      THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.R.P.No.815/2013

                                       -:2:-




                      Dated this the 27th day of October,2023

                                    ORDER

The revision petition is filed questioning the

legality and correctness of the judgments in

Crl.A.No.91/2007 of the Court of the Additional

Sessions Judge, (Adhoc-II), Kollam (Appellate Court)

and S.T. No.1697/2000 of the Court of the Judicial First

Class Magistrate-III, Punalur(Trial Court), holding the

revision petitioners guilty for the offences under

Section 16(1)(A) read with Sections (2)(ia)(j) & 7 (1) &

Section 16(1) proviso (1) read with Sections (2)(ix)(K)

& 7(1) of the Prevention of Food Adulteration Act, 1954

(in short, 'Act'). The revision petitioners were the

accused and the second 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.815/2013

Brief facts:

2. The prosecution case is that, on 17.08.1999,

the second respondent - the food inspector - inspected

the bakery and restaurant situated in Pathanapuram,

which was owned by the second accused and managed

by his son - the first accused. The food inspector

purchased 600 grams of banana chips from the first

accused. In one of the samples that was sent for

analysis to the Public Analyst, by Ext P13 Form III

report, it was found that the sample was adulterated,

as there was presence of water soluble synthetic colour

tartazine, which is in violation of Rule 29 of the PFA

Rules. Thus, the accused have committed the above

offences.

3. The accused pleaded not guilty to the

substance of accusation read over to them.

4. In the trial, the prosecution examined PWs 1 Crl.R.P.No.815/2013

& 2 and marked Exts P1 to P25 in evidence. The

accused examined DWs 1 & 2 and marked Exts D1 to

D3 in evidence.

5. The learned Magistrate, after analysing the

materials placed on record, found the accused guilty

and convicted and sentenced them to undergo rigorous

imprisonment for a period of one year and pay a fine of

Rs.2,000/- for the offences under Sections 16(1)(A)(1)

read with (2)(ia)(j) & 7(1) of the Act and in default to

undergo rigorous imprisonment for a period of two

months. They have also sentenced to undergo rigorous

imprisonment for a period of three months and pay a

fine of Rs.2,000/- under Section 16(1) proviso (1) read

with (2) (ix)(K) & 7(1) of the Act and in default to

undergo rigorous imprisonment for a further period of

two months. The sentences were ordered to run

concurrently.

6. Aggrieved by the said judgment, the accused Crl.R.P.No.815/2013

preferred Crl.A. No.91/2007 before the Appellate

Court.

7. The Appellate Court, after re-appreciating the

materials placed on record, by the impugned judgment

confirmed the conviction; but modified the substantive

sentence by reducing it to rigorous imprisonment for a

period of six months.

8. It is challenging the concurrent judgments of

the courts below, the revision petition is filed.

9. Heard; Sri. S. Rajeev, the learned counsel

appearing for the revision petitioner and Smt. Seetha

S., the learned Senior Public Prosecutor appearing for

the respondents.

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 Crl.R.P.No.815/2013

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 Analyst for the local areas as assigned

by the Central Government and State Government. In

the State of Kerala, Public Analysists have been Crl.R.P.No.815/2013

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.815/2013

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 Crl.R.P.No.815/2013

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 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) Crl.R.P.No.815/2013

(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) 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 Crl.R.P.No.815/2013

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 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.

Crl.R.P.No.815/2013

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 India Holdings Private Ltd (supra) leaves

no room for any further interpretation on the question

that, if an allegedly adulterated food sample is not Crl.R.P.No.815/2013

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 case was

launched on the basis of Ext P13 Form III report of the

Public Analyst holding that the food sample was

adulterated. Admittedly, the sample was not tested in

a laboratory 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 petitioners/accused are found not guilty and

have to be acquitted.

19. In the result, Crl.R.P.No.815/2013

(i) The revision petition is allowed;

(ii) The impugned judgments in Crl.Appeal No.91/2007 and in S.T.No.1697/2000 of the courts below are set aside.

(iii) The revision petitioners are held not guilty and are acquitted, and are set at liberty.

(iv)The bail bonds executed by the revision petitioners and their sureties are hereby cancelled.

Sd/-

                                              C.S.DIAS,JUDGE
DST/27.10.23                                                     //True copy//

                                                                 P.A. To Judge