Allowed

Jose V.O. v. the Food Inspector, Chalakkudy Circle.

Kerala HC26 Aug 2016Crl.Rev.Pet/463/2009

Case brief

AI extract

What is this about?

High Court revisited conviction and sentence under PFA Act. Court acquitted on adulteration charge citing unnotified lab analysis per Pepsico decision, upheld licence violation finding, and sentenced to imprisonment and fine.

What did the court decide?

Revision petition allowed in part; conviction on adulteration set aside; licence violation finding upheld; sentenced to imprisonment till rising of court and fine of Rs. 500.

Jose V.O. Vs the Food Inspector, Chalakkudy Circle. — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

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FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938

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Crl.Rev.Pet.No. 463 of 2009 ( )

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Crl.A 540/2006 of ADDL. SESSIONS COURT(ADHOC 2), THRISSUR CC 781/2001 of J.M.F.C.,IRINJALAKUDA

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REVISION PETITIONER:

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JOSE V.O,S/O.VADAKKETHALA OUSEPH, KODAKARA VILLAGE DESOM,MUKUNDAPURAM TALUK.

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BY ADV. SRI.T.N.MANOJ

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RESPONDENTS:

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THE FOOD INSPECTOR CHALAKUDY CIRCLE, CHALAKUDY.

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STATE OF KERALA THROUGH THE PUBLIC

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PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.

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BY PUBLIC PROSECUTOR, SHRI.ALEX M THOMBRA

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.SUDHEENDRA KUMAR, J.

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Crl.R.P. No.463 of 2009

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- - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 26^th day of August 2016

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O R D E R

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The accused in C.C. No.781 of 2001 on the files of

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the court of the Judicial Magistrate of First Class, Irinjalakuda, filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sections 2 (ia)(m) and 7(i)(iii) read with Section 16(1) of Prevention of Food Adulteration Act, 1954 (for short 'the P.F.A. Act') read with Rule 50(1)

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of the Prevention of Food Adulteration Rules, 1955 (for

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

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Heard.

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Crl.R.P.463/2009

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: 2 :

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The prosecution allegation can be briefly stated

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thus:-

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On 19.2.1999 at about 4 p.m., PW1, the Food Inspector, purchased 3 bottles of vinegar 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 vinegar under the P.F.A. Rules and hence, the sample was adulterated. Thereafter, on the request of the accused, the second sample was sent to the Central Food Laboratory for analysis. Ext.P18 certificate of the Central Food Laboratory would also show that the sample did not conform to the standard prescribed for vinegar under the

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Crl.R.P.463/2009

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: 3 :

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P.F.A. Rules as the total ash, acetic acid content and total

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solids were less than the minimum prescribed limits and

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hence, the sample was adulterated. It is further alleged that

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the petitioner did not have a valid licence under the P.F.A

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Rules to sell the food item.

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Before the trial Court, PW1 to PW5 were

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examined and Exts.P1 to P23 were marked for the

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prosecution. No evidence was adduced from the side of the revision petitioner.

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The learned counsel for the revision petitioner has 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. P18 certificate of the Central

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Crl.R.P.463/2009

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: 4 :

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Food Laboratory 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.

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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 decision of this Court in Gopalakrishnan v. Food Inspector

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[2013 (3) KLT 455], the court relied on the decision of the Supreme Court in Pepsico India Holdings (supra) and

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: 5 :

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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).

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

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mandated under Section 23 (1-A) (ee) and (hh) of the P.F.A. Act. Therefore, Ext. P18 certificate 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 Court in Pepsico India Holdings (supra). Therefore, the conviction and sentence passed by the courts below under Sections 2 (ia)(m) and 7(i) read with Section 16(1) of the P.F.A. Act, cannot be sustained and consequently, I set aside the same.

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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 before the court to show that the revision petitioner had any valid licence under the P.F.A. Rules during the period in

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question. In the said circumstances, the concurrent finding

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by the courts below that the revision petitioner committed the offence under Rule 50(1) of the P.F.A. Rules read with Sections 16(1) and 7(iii) of the P.F.A. Act, does not warrant any interference by this court.

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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, including the period elapsed since the incident, I am of the view that the revision petitioner can be sentenced as provided under 2^nd proviso to Section 16(1) of the P.F.A. Act. Accordingly, the revision petitioner is sentenced to imprisonment till the rising of the court and a fine of

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Crl.R.P.463/2009

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: 8 :

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Rs.500/- (Rupees five hundred only) and in default to simple imprisonment for five days, to secure the ends of

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justice. Accordingly, I order so.

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In the result, this revision petition stands allowed in part as above.

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The revision petitioner shall surrender before the trial