Allowed

Mohammad K. v. the Food Inspector and Another

Kerala HC20 Sept 2016Crl.Rev.Pet/1308/2009

Case brief

AI extract

What is this about?

The High Court allowed the revision petition, acquitting the accused. The court held that because the laboratory was not notified and no validated method of analysis was prescribed as mandated by the PFA Act, the Public Analyst's report was inadmissible, leading to the quashing of the conviction and sentence.

What did the court decide?

Revision petition allowed; conviction and sentence set aside; accused acquitted; bail bond cancelled; accused set at liberty.

Mohammad K. Vs the Food Inspector and Another — 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 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938

¶5

Crl.Rev.Pet.No. 1308 of 2009 ( )

¶6

Crl.A 251/2005 of ADDITIONALSESSIONS COURT (ADHOC), MANJERI STC 1382/2002 of J.M.F.C.-I, PERINTHALMANNA

¶7

REVISION PETITIONER/APPELLANT/ACCUSED NO.1:

¶8

MOHAMMAD.K.,S/O.SAIDALAVI.

¶9

KANAKKANCHERI HOUSE,ALIPARAMBA P.O. ANAMANGAD (VIA), PERINTHALMANNA TALUK,, MALAPPURAM DISTRICT.

¶10

BY ADVS.SRI.T.K.SAIDALIKUTTY SMT.ANITHA M.N. (EKM) SRI.A.A.ZIYAD RAHMAN

¶11

RESPONDENT/RESPONDENT/COMPLAINANT AND THE STATE:

¶12

THE FOOD INSPECTOR, PERINTHALMANNA MUNICIPALITY.

¶13

THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶14

PUBLIC PROSECUTOR, SRI. RAMESH CHAND

¶15

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶16

B.SUDHEENDRA KUMAR, J.

¶17

¶18

Crl.R.P. No.1308 of 2009

¶19

- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20^th day of September 2016

¶20

O R D E R

¶21

The first accused in S.T.No.1382 of 2002 on the files of the court of the Judicial Magistrate of First Class -1, Perinthalmanna, filed this Revision Petition challenging the concurrent finding of conviction and sentence passed

¶22

by the courts below under Sections 2(ia)(j) and 7(i) read with Section 16(1) of the Prevention of Food Adulteration Act, 1954 (for short 'the PFA Act') read with Rules 23 and 29 of the Prevention of Food Adulteration Rules, 1955(for short 'the P.F.A. Rules').

¶23

Heard.

¶24

The prosecution allegation can be briefly stated

Crl.R.P.1308/2009

: 2 :

thus:-

On 28.8.2001 at about 2.50 p.m., PW3, the Food Inspector, purchased three packets of banana chips, each packet contained 250 grams each, from the revision petitioner. The second accused was the licensee of the said shop. After complying with the legal formalities, one sample was sent for analysis to the Public Analyst. The Public Analyst filed Ext. P17 report stating that the sample contained tartarzine, which is a synthetic colour and hence, the sample was adulterated.

¶29

Before the trial Court, PW1 to PW3 were examined and Exts.P1 to P23 were marked for the prosecution. Ext.D1 and D2 were marked on the side of the revision petitioner.

¶30

The learned counsel for the revision petitioner has argued that since no laboratory for the analysis of the

¶31

Crl.R.P.1308/2009 : 3 :

¶32

food item was defined and no validated method of

¶33

analysis was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the PFA Act, Ext. P17 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.

¶34

6 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

¶35

Crl.R.P.1308/2009

¶36

: 4 :

¶37

decision of this Court in Gopalakrishnan v. Food Inspector [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).

¶38

Crl.R.P.1308/2009

¶39

: 5 :

¶40

In this case, admittedly, the laboratory for the

¶41

analysis of food item was not defined and no validated

¶42

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. P17 report of analysis cannot be acted upon to hold that the food item purchased in this case was adulterated in view of the decision of the Apex

¶43

court in Pepsico India Holdings (supra). Therefore, the conviction and sentence passed by the courts below under Section 16(1) read with Sections 7(i) and 2(ia)(j) of P.F.A. Act, 1954 and Rules 23 and 29 of the PFA Rules, 1955, cannot be sustained.

¶44

In the result, this Revision Petition stands allowed setting aside the conviction and sentence passed by the trial

¶45

Crl.R.P.1308/2009

¶46

: 6 :

¶47

Court under Section 16(1) read with Section 2(ia)(j) and 7 (i) of the P.F.A. Act read with Rules 23 and 29 of the P.F.A.

¶48

Rules and the revision petitioner is acquitted for the said

¶49

offence. The bail bond of the revision petitioner stands