Partly allowed

C.P.Martin v. Food Inspector, Mananthawady

Kerala HC27 Sept 2016Crl.Rev.Pet/1285/2012

Case brief

AI extract

What is this about?

The High Court allowed the revision petition partially. It acquitted the accused of food adulteration due to lack of a notified laboratory and validated analysis method mandated by the PFA Act. However, it upheld the conviction for selling without a valid licence, though it reduced the sentence to imprisonment till the rising of the court and a fine.

What did the court decide?

Conviction for adulteration set aside; conviction for unlicensed sale upheld; sentence reduced to imprisonment till rising of court and fine of Rs. 500.

C.P.Martin Vs Food Inspector, Mananthawady — Cheque Dishonour | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

¶4

TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938

¶5

Crl.Rev.Pet.No. 1285 of 2012 ()

¶6

Crl.A 22/2007 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CC 95/2005 of J.M.F.C.-II, SULTHANBATHERY

¶7

REVISION PETITIONER/ACCUSED:

¶8

C.P.MARTIN, AGED 41 YEARS

¶9

S/O.PAUL,CHIRAPPARAMBIL HOUSE,KALADY,NEELESWARAM.P.O, PIN-673572.

¶10

BY ADVS.SRI.M.A.ABDUL HAKHIM

¶11

SRI.M.G.ANON

¶12

SRI.JOSEPH GEORGE (KANNAMPUZHA)

¶13

RESPONDENTS/COMPLAINANT/COMPLAINANT & STATE :

¶14

FOOD INSPECTOR, MANANTHAVADY CIRCLE,WYNAD DISTRICT,PIN-683545.

¶15

STATE OF KERALA,

¶16

REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM,PIN-682031.

¶17

PUBLIC PROSECUTOR, SHRI.C.K.PRASAD

¶18

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶19

B.SUDHEENDRA KUMAR, J.

¶20

- - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.1285 of 2012

¶21

- - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 27^th day of September 2016

¶22

O R D E R

¶23

The accused in C.C. No.95 of 2005 on the files of the court of the Judicial Magistrate of First Class - 11, Sulthan

¶24

Bathery filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 7(i) and 2(ia)(m) read with Sections 16(1)(a)(i) and 16(1)(a)(ii) of Prevention of Food Adulteration Act, 1954 (for short 'the P.F.A. Act') and Rule 50(1) of the Prevention of Food Adulteration Rules, 1955

¶25

(for short 'the P.F.A Rules').

¶26

Heard.

¶27

Crl.R.P.1285/2012

¶28

: 2 :

¶29

The prosecution allegation can be briefly stated thus:-

¶30

On 14.10.2004 at about 2 p.m., PW1, the Food Inspector, purchased 750 m.l. of coconut oil from the petitioner. After complying with the legal formalities, one sample was sent for analysis to the Public Analyst. The Public Analyst filed Ext. P13 report stating that the sample did not conform to the standard prescribed for coconut oil and hence, the sample was adulterated. It is also alleged that the revision petitioner did not have the requisite licence under the P.F.A. Rules to sell the food item.

¶31

Before the trial Court, PW1 to PW4 were examined and Exts.P1 to P24(a) were marked for the prosecution. DW1 and DW2 were examined on the side of the revision petitioner.

¶32

The learned counsel for the revision petitioner has

¶33

Crl.R.P.1285/2012

¶34

: 3 :

¶35

argued that since no laboratory for the analysis of the food item was defined and no validated method of analysis was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the PFA Act, Ext. P13 report of the Public Analyst cannot be acted upon to hold that the food item purchased by the Food Inspector was adulterated. The learned counsel for the revision petitioner relied on the decision of the Apex Court in Pepsico India Holdings (P) Ltd. v. Food Inspector [(2011) 1 SCC 176] to buttress his argument.

¶36

It was held by the Hon'ble Supreme Court in Pepsico India Holdings (supra) that since the Laboratories were not notified and the tests conducted by such laboratories were not admissible in evidence, no prosecution could be based on such report. In the decision of this Court in Gopalakrishnan v. Food Inspector

¶37

Crl.R.P.1285/2012

¶38

: 4 :

¶39

[2013 (3) KLT 455], the court relied on the decision of the Supreme Court in Pepsico India Holdings (supra) and found that the Public Analyst's report was not admissible in evidence and accordingly, the Court acquitted the accused. The Division Bench of this Court in Rasheed v. Food Inspector [2016 (2) KLT 390] considered the above question on a reference by a learned Single Judge. The Division Bench in Rasheed (supra) held that if an analysis is required to initiate prosecution, there should be notified laboratory and validated method of analysis as mandated under Section 23(1-A)(ee) and (hh) of the PFA Act for a successful prosecution as held by the Apex Court in Pepsico Holdings (supra).

¶40

In this case, admittedly, the laboratory for the analysis of food item was not defined and no validated

¶41

Crl.R.P.1285/2012

¶42

: 5 :

¶43

method of analysis of the food item was prescribed as mandated under Section 23 (1-A) (ee) and (hh) of the P.F.A. Act. Therefore, Ext. P13 report of analysis cannot

¶44

be acted upon to hold that the food item purchased in this case was adulterated in view of the decision of the Apex court in Pepsico India Holdings (supra). Therefore, the conviction and sentence passed by the courts below under Sections 7(i) and 2(ia)(m) read with Section 16(1)(a)(i) of P.F.A. Act cannot be sustained. Consequently, the conviction and sentence passed by the courts below under Sections 7(i) and 2(ia)(m) read with Section 16(1)(a)(i) of P.F.A. Act stand set aside.

¶45

The courts below concurrently found that the revision petitioner sold the food articles without having a valid licence under the P.F.A. Rules. There is no material

¶46

Crl.R.P.1285/2012

¶47

: 6 :

¶48

before the court to show that the revision petitioner had any valid licence under the P.F.A. Rules during the period in question. In the said circumstances, I find no reason to interfere with the verdict of guilty and conviction passed by the courts below under Section 16(1)(a)(ii) of the P.F.A. Act read with Rule 50(1) of the P.F.A. Rules.

¶49

As regards the sentence, the learned counsel for the revision petitioner has pleaded for leniency. There is no previous conviction against the revision petitioner. Considering the facts and circumstances of the case, I am of the view that the sentence awarded by the courts below under section 16(1)(a)(ii) of the P.F.A. Act read with Rule 50(1) of P.F.A. Rules can be modified and reduced to imprisonment till the rising of the court and a fine of Rs.500/- (Rupees five hundred only) and in default to

¶50

Crl.R.P.1285/2012

¶51

: 7 :

¶52

simple imprisonment for five days, to secure the ends of

¶53

justice. Accordingly I order so.

¶54

In the result, this revision petition stands allowed in

¶55

part as above.