Division Bench allowed revision petition, holding prosecution failed because food sample analysis was conducted in a laboratory not notified under Section 23(1-A)(ee) of the Prevention of Food Adulteration Act, 1954.
Revision petition allowed; impugned judgments set aside; accused acquitted and set at liberty; bail bonds cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 25TH DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945
CRL.REV.PET NO. 1503 OF 2012
AGAINST THE JUDGMENT DATED 31.05.2012 IN CRA 17/2011 OF
ADDITIONAL DISTRICT COURT (ADHOC), KASARAGOD
IN CC 280/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG
REVISION PETITIONER/APPELLANT/3RD ACCUSED
T.J.THOMAS,
S/O.JOSEPH,
AGED 49 YEARS
ASIAN FOOD PRODUCTS,
DOOR NO.KPP VI/464, PERALAM P.O.,
KOZHUMMAL,KANNUR DISTRICT.
BY ADVS.SRI.GEORGE KUTTY MATHEW
SRI.C.N.MIDHUN
RESPONDENTS/ RESPONDENTS/ COMPLAINANT:
1FOOD INSPECTOR,
KANHANGAD CIRCLE
HOSDURG P.O.,
KANHANGAD.
2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.OTHER PRESENT:
SR PP SMT SEETHA S
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 25.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Dated this the 25th day of October,2023
O R D E R
The revision petition is filed questioning the legality, correctness and propriety of the judgment in Crl.A.No.17/2011 of the Court of the Additional Sessions Judge, (Adhoc-I), Kasaragod Division (Appellate Court) and C.C. No.280/2009 of the Court of the Judicial First Class Magistrate-II, Hosdurg(Trial Court), holding the revision petitioner guilty for the offenceS under Sections 16(1-A)(i) read with Section 7(i) & 2(ia) and (j) of the Prevention of Food Adulteration Act, 1954 and Rule 29 of the PFA Rules(in short, ‘Act & Rules). The revision petitioner was the third accused and first respondent was the complainant before the Trial Court. For the sake of convenience, the parties are referred to as per their status before the Trial Court.
Relevant facts:
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the complainant along with the witnesses inspected the premises of Vellarikundu Trading Company in Balal Grama Panchayat. At the time of inspection, the first accused was conducting the trade of food articles in the shop. The complainant purchased three sealed packets of banana chips containing 160 gms each. Consequently, he sent one sample for analysis to the Public Analyst, Kozhikode. The Public Analyst, by Ext P10 Form III, found that the sample was adulterated, since it contained a synthetic food colour of tartrazine, which is in contravention of Rule 29 of the PFA Rules. Thus, the accused have committed the above offence.
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Section 313 of the Code of Criminal Procedure,1973.
filed Crl.A.No.17/2011 before the Appellate Court.
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revision petition.
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contrary contended that the decision in Pepsico India Holdings Pvt. Ltd. (supra) needs to be reconsidered, particularly because Section 8 of the Act enables the Central Government and the State Government to appoint a Public Analyst for the local areas as assigned by the Central Government and State Government. In
the State of Kerala, Public Analysists have been appointed invoking the above provision. Therefore, the decision in Pepsico India Holdings Pvt. Ltd. (supra) has no application to the case on hand. Hence, the revision petition may be dismissed.
irregularity in the impugned judgments.
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pronouncement of the judgment, there were several cases filed before this Court to quash the proceedings initiated under the Act.
“18. Bearing in mind the fact that the Hon'ble Apex Court in Pepsico's case (supra) held that the provisions under S.23(1A)(ee) and (hh) are not directory and that this Court has erred in holding that they are only enabling provisions
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we will proceed further to answer the referred questions. For answering the terms of reference a broad understanding of the said declaration is necessary. When once the Hon'ble Apex Court held that the said provisions are not directory and the failure to adhere to the provisions cannot be said to be not fatal to the prosecution it has to be understood and applied in all cases where a public analyst was to carry out an analysis and to give a report to form the basis for launching the prosecution. Thus, evidently, for that purpose the report should be one made after conducting an analysis in a laboratory defined under S. 23(1A)(ee). It is to be noted that after the decision in Pepsico's case (supra) by the Hon'ble Apex Court a notification was followed whereby Rule in relation to S.23(1A)(hh) was framed as R. 4(9) of the PFA Rules. Thus, in the light of Pepsico's case (supra) in order to be reliable and to be taken the basis for the purpose of launching prosecution a report by a public analyst must be one made after conducting an analysis in a laboratory defined under S.23(1A)(ee) of the Act. In that context the indisputable common case is that till the repealing of 1954 Act no laboratory was defined in terms of the provision under S.23(1A)(ee). If that be so, there could not have been any question of conducting an analysis by a public analyst under the PFA Act in a laboratory defined under S. 23(1A)(ee) of the PFA Act . In view of the above findings and conclusions we will answer the questions referred. First question referred is as follows: (1) Could all the prosecutions under the Act of 1954 be stifled by raising a contention that the laboratories or methods of analysis were not defined? In the light of what we
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have held herein before the said it can only be answered in the following manner: Wherever an analysis has to be conducted from a laboratory to find whether the particular sample of item of the particular food article is adulterated, to form the basis for initiation of prosecution under the PFA Act the report of the analyst in relation to that sample must be one conducted in a laboratory defined under S.23(1A) (ee). Since no such laboratory was defined till the repealing of the PFA Act wherever an analysis from a laboratory was inevitable for making a report regarding item concerned as adulterated there cannot be any successful prosecution in the absence of such a report. In such circumstances the prosecution proceedings have to be terminated for the failure to define laboratories in terms of S. 23(1A)(ee) and the consequential failure to conduct an analysis of the particular sample by the public analyst from such a laboratory. In other words taking note of the nature of the food article involved and the method to be employed to find out the adulteration if an analysis from a laboratory is not at all required in such circumstances the prosecution cannot be stifled on the ground that the laboratories in terms of provisions under S.23(1A)(ee) were not defined. It cannot be said that all the prosecutions under the 1954 Act should be stifled owing to the failure to define laboratories in terms of S.23(1A)(ee) as there may be cases registered against persons for contravention of the provisions under S.16(1)(c), S.16(1)(d) and S.14A (Prevention of Food Adulteration Act, 1954). So also a case where the Article in food was lifted and sent for analysis prior to the introduction of the provisions under S.23(1A)(ee) viz. 01/04/1976 cannot
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be stifled as anything previously done could not be invalidated owing to the failure to define laboratory in terms of S.23(1A)(ee) in view of the provisions under S.23(2). In the context of the term of reference No. 1 it is to be noted that subsequent to Pepsico's case (supra) the method of analysis was, in fact, defined and it was brought into by incorporating R.9(4) in the PFA Rules with effect from 25/03/2008.
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absolutely unnecessary to go into the question referred herein before based on the decision in Narayana Reddiar's case which was declined to be referred.
(emphasis given by me)
Inspector (supra), following the declaration in Pepsico India Holdings Private Ltd (supra) leaves no room for any further interpretation on the question
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that, if an allegedly adulterated food sample is not analysed in a laboratory under Section 23(1-A)(ee) of the Act, the same is fatal to the prosecution and the prosecution has to necessarily fail.
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fails. Consequentially, the revision petitioner/third
accused is to be found not guilty and has to be acquitted.
Sd/-
C.S.DIAS,JUDGE
DST/25.10.23
//True copy//
P.A. To Judge
3 issues framed by the court
Whether prosecution for food adulteration fails if analysis was conducted in a laboratory not defined under Section 23(1-A)(ee) of the Prevention of Food Adulteration Act, 1954.
Whether the ratio in Pepsico India Holdings Pvt. Ltd. and Rasheed v. Food Inspector applies to the instant case.
Whether the accused is liable to be convicted given the defect in the laboratory used for analysis.
Colour shows how this judgement treated each authority
Pepsico India Holdings Pvt. Ltd v. Food Inspector and AnotherFollowed¶41
[2010 (4) KHC 767]
Rasheed v. Food InspectorFollowed¶41
[2016 (2) KLT 390]
3 provisions across 2 enactments
T.J.THOMAS
STATE OF KERALA
C.S.DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court