Allowed

G.Mohan v. a.Jaya Kumar

Kerala HC12 Dec 2017Crl.Rev.Pet/580/2003

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court of Kerala allowed the challenge to the conviction and sentence under the Prevention of Food Adulteration Act. The court held that due to the absence of government notification prescribing methods of analysis under the PFA Rules, following the Supreme Court decision in Pepsico India Holdings, the conviction had to be set aside and the accused acquitte

What did the court decide?

The conviction and sentence were set aside; the revision petitioner was found not guilty and acquitted of the offence.

G.Mohan Vs a.Jaya Kumar — Writ and Judicial Review | Kerala HC (2017)

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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 P.UBAID

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TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939

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Crl.Rev.Pet.No. 580 of 2003 ( )

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-------------------------------CRA 120/1994 of II ADDL.SESSIONS COURT, THIRUVANANTHAPURAM DATED 07-08-2002 ST 94/1990 of J.M.F.C.- I, NEYYATTINKARA DATED 19-04-1994

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REVISION PETITIONER(S)/APPELLANT/ACCUSED :-

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G.MOHANAN, GOPALAKRISHNA BHAVAN, ARUMANOOR, POOVAR P.O., THIRUVANANTHAPURAM.

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BY ADVS.SRI.P.PARAMESWARAN NAIR SRI.P.JALALUDEEN

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RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE::

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1. A.JAYA KUMAR, FOOD INSPECTOR, NEYYATTINKARA CIRCLE.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.SREEJA.V.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.UBAID, J.

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-----------------------------------------Crl.R.P. No.580 of 2003

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Dated this the 12^th day of December 2017

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O R D E R

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The revision petitioner herein challenges the conviction and sentence against him under Section 16(1)(a)(i) read with Sections 7(i) and 2(ia)(a) and (m) of the Prevention of Food Adulteration Act (for short 'the PFA Act'), and Rule 47 of the PFA Rules, in S.T.No.94/1990 of the Judicial First Class Magistrate Court – I, Neyyattinkara. The prosecution was instituted against him by the Food Inspector, Neyyattinkara on the allegation that when the Food Inspector visited the business premises of the accused at about 11 a.m. on 12.3.1990, he was found possessing coloured sweet and carbonated water for sale. The Food Inspector purchased some bottles of water, after complying with the formalities prescribed under the law, and he got the samples analysed at the Regional Laboratory. On the basis of the report of analysis, prosecution was initiated by the Food Inspector. On

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Crl.R.P. No.580 of 2003

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getting notice under Section 13(2) of the PFA Act, the accused moved the court below for sending the second sample for analysis. Accordingly, the second sample was sent to the Central Food Laboratory. On analysis, the Central Food Laboratory reported the presence of saccharine in the sample within the prescribed limit, but the sample did not contain the label declarations regarding the addition of colour, flavour, preservatives, saccharine, etc., or even the address of the manufacturer. The accused appeared before the learned Magistrate and pleaded not guilty, when the substance of the accusation was read over and explained to him.

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The prosecution examined three witnesses, and proved Exts.P1 to P17 documents. The accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C., and he also examined two witnesses on his side, and marked Ext.D1 document.

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On an appreciation of the evidence, the learned Magistrate found the accused guilty. On conviction he was

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Crl.R.P. No.580 of 2003

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sentenced to undergo rigorous imprisonment for six months, and to pay a fine of `1,000/-. Aggrieved by the judgment of conviction dated 19.4.1994, the accused approached the Court of Session with Crl.A.No.120/1994. In appeal, the learned IInd Additional Sessions Judge, Thiruvananthapuram confirmed the conviction and sentence, and accordingly dismissed the appeal by judgment dated 7.8.2002. Now the accused is before this Court challenging the legality and propriety of the conviction and sentence.

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When this revision petition came up for hearing, the learned counsel for the revision petitioner submitted that the decision of the Hon'ble Supreme Court in Pepsico India Holdings Pvt. Ltd. v. Food Inspector and another [2010 (4) KHC 767 = 2010 (4) KLT 706 = 2011 CriLJ 1012], is very much applicable to the facts of this case, and pleaded for acquittal.

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This is a case where the prosecution is based on the report of analysis of the Central Food Laboratory. There can be situations under the PFA Act, where prosecution is

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Crl.R.P. No.580 of 2003

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based on other factors and materials. In cases, where the prosecution is based on other factors like absence of label declarations, etc., the Pepsico decision cannot be applied. The decision in Pepsico's case was followed by this Court in Gopalakrishnan. R. v. Food Inspector, Neyyattinkara and Another [2013 (3) KHC 275 = 2013 (3) KLT 455]. That is a case where the prosecution was based on the report of analysis.

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In the Pepsico's case cited supra, the Hon'ble Supreme Court held that in the absence of notification issued by the Central Government defining the laboratories where samples of food could be analysed, and in the absence of prescribed methods of analysis, no prosecution can continue under the PFA Act. The Hon'ble Supreme Court held that as per the Rules framed under the PFA Act, the Government of India will have to notify the laboratories authorised to analyse food sample, and also the method of analysis of different food samples. Till the date of decision of the Hon'ble Supreme Court, such laboratories were not notified by the Government

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Crl.R.P. No.580 of 2003

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of India, and the methods of analysis were also not prescribed and notified by the Government of India. On a perusal of the materials in this case, I find that the decision in Pepsico's case is applicable here. This is not a case where the prosecution is solely based on the absence of label declarations. The prosecution is based on the report of analysis regarding the presence of saccharine in the sample. It is pertinent to note that in this case, the presence of saccharine was detected within permitted limits, and it did not exceed even marginally. But, the prosecution happened to be initiated on the ground that the label declarations are

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not there on the bottles. As per the Rules, presence of saccharine upto the limited extent will be justifiable only if the label declarations are there on the food sample. Any way, it is a fact that there is no notification prescribing the methods of analysis under the PFA Rules. In such circumstances, applying the decision of the Hon'ble Supreme Court in Pepsico's case the conviction in this case will have to be set aside.

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Crl.R.P. No.580 of 2003

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In the result, this revision petition is allowed. The revision petitioner is found not guilty under Section 16(1)(a) (i) read with Sections 7(i) and 2(ia)(a) and (m) of the PFA Act, and Rule 47 of the PFA Rules, and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against the revision petitioner in S.T.No.94/1990 of the trial court, confirmed in Crl.A.No.120/1994 by the Court of Session will stand set aside, and the revision petitioner will stand released from prosecution.

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Sd/- P.UBAID JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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Jvt/16.12.2017

G.Mohan v. a.Jaya Kumar

Case brief

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G.Mohan v. a.Jaya Kumar

Case brief

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