Kerala High Court
Raphy vs State on 19 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.1273/2010
2025:KER:43403
-:1:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.REV.PET NO. 1273 OF 2010
AGAINST THE JUDGMENT DATED 3/3/2019 IN Crl.A NO.1075
OF 2007 OF COURT OF SESSIONS, THIRUVANANTHAPURAM ARISING
OUT OF THE JUDGMENT DATED 30/11/2007 IN ST NO.52 OF 2001 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATTINKARA
REVISION PETITIONER/ACCUSED:
RAPHY, S/O SAINALABDEEN,
PLAVILA PUTHEN VEEDU, VAZHIMUKKU,, BALARAMAPURAM,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.MANU TOM
SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SHRI.SHEHIN S.
SMT.DEVIKA S.
SMT.RESHMA DAS P.
RESPONDENTS/STATE AND COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
Crl.R.P.No.1273/2010
2025:KER:43403
-:2:-
2 THE FOOD INSPECTOR
NEYYATTINKARA MUNICIPALITY,
THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.SANGEETHA RAJ N.R. PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 11.06.2025, THE COURT ON 19.06.2025 DELIVERED THE
FOLLOWING:
Crl.R.P.No.1273/2010
2025:KER:43403
-:3:-
"C.R."
ORDER
This revision petition has been directed against the
judgment of the Court of Sessions, Thiruvananthapuram (for
short, the appellate court) dismissing Crl.Appeal No.1075/2007
filed against the judgment of conviction and sentence of the
Judicial First-Class Magistrate Court- I, Neyyattinkara (for short,
the trial court) in ST No.52/2001.
2. The petitioner was the first accused in ST No.52/2001.
He along with the second accused faced trial for the offences
punishable under Sections 2(ia), 7(i), 16 (1) (a) (i) of the
Prevention of Food Adulteration Act, 1954 (for short, the PFA Act)
r/w Rule 47 of the Prevention of Food Adulteration Rules, 1955
(for short, the PFA Rules).
3. The prosecution allegation is that on 7/12/2000, at
about 4:00 p.m., the Food Inspector of Neyyattinkara Municipality
(PW1) visited the hotel run by the petitioner, viz. Raphy Hotel in
2025:KER:43403
Balaramapuram and purchased 12 covers of smart drinks kept for
sale as per Ext.P6 voucher and Ext.P6 (a) bill. They were divided
into three parts in accordance with the PFA Rules. After necessary
formalities, one part of the sample was sent for analysis, and
Ext.P12 report was obtained stating that the sample contained
artificial sweetener, saccharin and therefore adulterated.
Accordingly, the prosecution was launched before the trial court.
4. The petitioner appeared before the trial court. He filed
an application to implead the manufacturer of the smart drink.
Accordingly, the manufacturer was impleaded as the second
accused. The second accused denied that he sold the materials
to the petitioner. After the trial, the trial court found the petitioner
guilty of the offences charged against him and he was convicted
for the said offences. He was sentenced to undergo simple
imprisonment for six months and to pay a fine of `1,000/- in
default to suffer simple imprisonment for one month. The second
accused was found not guilty, and he was acquitted. The
petitioner challenged the conviction and sentence before the
2025:KER:43403
appellate court in Crl. Appeal No.1075/2007. The appellate court
dismissed the appeal. This revision petition has been filed
challenging the concurrent finding of conviction and sentence.
5. I have heard Sri. K. Ramakumar, the learned Senior
Counsel for the petitioner assisted by Sri.Manu Tom and
Sri.Sangeetha Raj, the learned Public Prosecutor.
6. Though several contentions were raised in the
memorandum of revision petition, the learned Senior Counsel
Sri.K.Ramakumar confined his argument only on one point -
violation of Section 10 (7) of the PFA Act, which reads thus;
"10. Powers of food inspectors - (1) A food inspector
shall have power -
xxxxx
(7) Where the food inspector takes any action under
clause (a) of sub-section (1), sub-section (2), sub-
section (4) or sub-section (6), he shall call one or more
persons to be present at the time when such action is
taken and take his or their signatures."
It is submitted that there was non-compliance with Section 10 (7)
of the PFA Act inasmuch as PW1 Food Inspector failed to procure
the signature of the independent persons when he took the
2025:KER:43403
sample. Thus, the only issue that arises for consideration in this
revision petition is whether the Food Inspector had complied with
the provisions of Section 10 (7) of the PFA Act or not. The very
same contention was taken up by the petitioner before the
appellate court. However, the appellate court found that the
evidence of PW1 will show that PW1 had called independent
witnesses, but they did not sign the mahazar and thus there is
substantial compliance with Section 10 (7) of the PFA Act.
Reliance was placed on a decision of the Division Bench of this
court in Food Inspector v. Narayanan (2003 (2) KLT 1035).
7. In Narayanan (supra), the following two questions were
referred to the Division Bench for authoritative pronouncement:
(i) Whether Section 10 (7) of PFA Act is mandatory. (ii) Whether
the fact that one of the witnesses called by the Food Inspector to
witness the sampling is an employee of the vendor would vitiate
the proceedings against the vendor or the warrantor on the
ground that the person called to witness the sampling is not an
independent witness as insisted by Section 10(7). The Division
2025:KER:43403
Bench answered these two questions as follows: (i) Section 10 (7)
of the PFA Act is not mandatory in the sense that non-compliance
of the same by itself will not vitiate the proceedings in all cases
(ii) Section 10(7) only casts a duty on the Food Inspector to call
one or more persons to be present when he takes action. In the
case where the Food Inspector called persons to witness the
taking of a sample and none was willing to cooperate, the
prosecution is relieved of its obligation to cite independent
witnesses.
8. The Division Bench relied on a three bench decision of
the Supreme Court in Ram Labhaya v. Municipal Corporation of
Delhi (AIR 1974 SC 789) wherein it was held that Section 10(7) of
PFA Act casts an obligation on the Food Inspector only to call one
or more persons to be present on the spot when he takes
samples and he cannot compel their presence and, therefore,
the prosecution is relieved of its obligation under this provision as
and when the effort is made by the Food Inspector to associate
independent witnesses by calling them to join the investigation
2025:KER:43403
and non compliance of Section 10(7) on refusal of such persons
to join the investigation will not vitiate the trial. It was further
held that the words "one or more persons" in Section 10(7) must
be one or more independent persons. The Supreme Court has
also found specifically that the provisions of Section 10(7) are
mandatory and not obligatory.
9. Section 10(7) of the PFA Act originally required that the
Food Inspector, when he takes action either under the provisions
of sub-sections (1)(a), (2), (4) or (6) to call as far as possible not
less than two persons to be present at a time when such action is
taken and take their signature, but that provision was amended
by the Act of 1964 and instead it was provided that the Food
Inspector shall call one or more persons at the time when such
action is taken and take his/their signature. By the Amendment
Act of 1964, the words "as far as possible" were deleted. It was
held in Ram Labhaya (supra) that this deletion naturally lends
plausibility to the contention that the provisions of Section 10(7)
are mandatory. However, contrary to the said finding, the
2025:KER:43403
Division Bench in Narayanan (supra) took the view that provisions
of Section 10(7) is not mandatory and from the totality of the
evidence, regularity of the action in taking the sample from a
particular shop by the Food Inspector is proved, proceedings can
be sustained even if Section 10 (7) is not complied with. In
Rajinder Kumar v. State of H.P. and Another [(2003) 11 SCC 120],
following Ram Labhaya (supra), the Supreme Court reiterated that
the obligation cast on the Food Inspector under Section 10(7) is
only to call one or more persons to be present when he takes
action.
10. Thus, the law is well settled that "one or more
persons" mentioned in Section 10(7) to witness the actions of the
Food Inspector must necessarily be "one or more independent
persons". The provision in Section 10(7) that when the Food
Inspector takes any action under sub-sections (1)(a), (2), (4) or
(6), he shall call one or more independent witnesses and take
their signatures to witness the action are mandatory and not
obligatory. However, when earnest effort is made by the Food
2025:KER:43403
Inspector to secure the presence of one or more independent
witnesses when he takes action under any of the provisions
mentioned in sub-section (7) of Section 10, the prosecution is
relieved of its obligation under these provisions and the refusal of
such persons to stand as witness will not vitiate the trial. At the
same time, total non-compliance with Section 10(7) and failure
on the part of the Food Inspector to call one or more independent
persons to witness his actions would certainly be fatal to the
prosecution case. In other words, there must be positive evidence
to prove that the Food Inspector made earnest efforts to
associate with independent witnesses in the process of taking
samples and in the absence of such evidence, the entire trial
would be vitiated as provisions of Section 10 (7) are mandatory.
Coming to the facts of the case, PW1 stated in his evidence
that though he called two independent witnesses available, they
refused to join as witnesses. However, when a specific question
was asked, he could not disclose the name or details of those
witnesses. There is no evidence with regard to the efforts made
2025:KER:43403
by PW1 to associate independent witnesses in the process of
taking samples from the shop of the petitioner, other than his
own interested testimony. PW2, the peon at the Neyyattinkara
Municipality who accompanied PW1, deposed that he did not
know whether PW1 had called any witness and he refused to sign
in the mahazar. Yet another witness in Ext.P7 mahazar, who was
an employee at the hotel viz., Zaid, was also not examined. For
these reasons, I have no hesitation in holding that there is no
reliable and credible evidence to establish that PW1 had made
any earnest effort to associate the independent witnesses as
required under Section 10(7). The evidence of PW1 alone is not
sufficient to prove the effort made by him to associate with
independent witnesses before taking the sample. Therefore, the
concurrent finding of conviction and sentence against the
petitioner is liable to be interfered with for total non-compliance
with the provisions of Section 10(7). Accordingly, the judgments
of conviction and sentence passed by the trial court in
S.T.No.52/2001 as confirmed by the appellate court in Crl. Appeal
2025:KER:43403
No.1075/2007 are hereby set aside. The petitioner is found not
guilty of the offences charged against him, and he is acquitted.
The criminal revision petition is allowed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
