The High Court of Kerala dismissed a criminal revision petition challenging the acquittal in a food adulteration case. Relying on Pepsico and Rasheed, the court held that since the sample was not tested in a notified government laboratory, the prosecution warrantlessly failed, upholding the Trial Court's order.
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
MONDAY, THE 30TH DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945
CRL.REV.PET NO. 1629 OF 2014
AGAINST THE ORDER/JUDGMENT CC 105/2007 OF JUDICIAL MAGISTRATE OF
FIRST CLASS ,MATTANNUR
REVISION PETITIONER/S:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2 THE FOOD INSPECTOR KUTHUPARAMBA CIRCLE, KEEZHUR CHAVASSREY PANCHAYATH.
BY ADV GOVERNMENT PLEADER
RESPONDENT/S:
M/S.SAI RAMANA RICE INDUSTRIES SETTIPALAM, MIRIYALGUDA NALGONDA, ANDRA PRADESH.
BY ADVS. SRI.S.ABHILASH SMT.BINDU GEORGE SRI.K.SIJU
OTHER PRESENT:
PP SMT NIMA JACOB
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Dated this the 30th day of October, 2023
O R D E R
The revision petition is filed questioning the legality, propriety and correctness of the judgment in C.C.No.105/2007 of the Court of the Judicial First Class Magistrate, Mattannur (Trial Court), finding the respondents not guilty and consequentially acquitting them under Section 248(1) of the Code of Criminal Procedure (in short, 'Code'). The 2nd revision petitioner was the complainant and the respondent was the 4th accused before the Trial Court.
Prosecution case in brief:
inspected a grocery shop named PCM Stores in Keezhur Chavassery Grama Panchayath and had
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purchased 750 gms of rice from the 1st accused. He sent one of the samples for analysis to the Public Analyst, Kozhikode, who by Ext.P13 Form III report found that the sample was adulterated, as it was coated with inorganic iron pigment oxide. The 2nd accused was the licensee and the 3rd accused was the owner of the shop. Thus the accused 1 to 3 committed the above offence.
application under Section 20(A) of the Act to implead the distributor of the article as additional accused. The Trial Court allowed the application and impleaded the 4th accused.
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Thereafter, denovo trial was conducted and PW1 was recalled and examined against A4. In the meantime, the 2nd accused died and the case against him was dismissed as abated.
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be dismissed.
judgment in Pepsico India Holdings Private
Ltd. (supra) on 18.11.2010. Subsequent to the pronouncement of the judgment, there were several cases filed before this Court to quash the proceedings initiated under the Act.
CRL.REV.PET NO. 1629 OF 2014
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on a threadbare analysis of the law laid down in Pepsico India Holdings Private Ltd. (supra), has answered the reference in the following manner:
“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 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 have held herein before the said it can only
CRL.REV.PET NO. 1629 OF 2014
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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 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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inevitable in such cases also if the analysis was conducted by the public analyst under the PFA Act in a laboratory not defined in terms of S.23(1A)(ee), in the light of Pepsico's decision, no prosecution will lie based a report made after such an analysis. The last question referred is follows: (3) Whether the ratio in Pepsico's case (supra) can be applied to all cases of alleged food adulteration under the Act of 1954 irrespective of the fact whether or not standards have been prescribed for food items? In cases where standard is prescribed or in respect of a food item to say that the said item of food is adulterated and to launch the prosecution, if an analysis from a laboratory by a public analyst is inevitable in such circumstances also the ratio in Pepsico's case (supra) will be applicable. In the light of the answers to the referred questions it has become 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)
Food Inspector (supra), following the
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declaration in Pepsico India Holdings Private Ltd (supra) leaves no room for any further interpretation on the question 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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order is in consonance with the law laid down by the Honourbale Supreme Court and this Court. I do not find any error, illegality or impropriety in the conclusion arrived at by the learned Magistrate in the impugned order.
The revision petition is devoid of any merit and is resultantly dismissed.
Sd/-
C.S.DIAS,JUDGE
rkc/30.10.23
2 issues framed by the court
Whether failure to examine food sample in a laboratory notified under the Prevention of Food Adulteration Act vitiated the prosecution under that Act.
Whether the ratio in Pepsico India Holdings Pvt. Ltd v. Food Inspector applied to the present Revision Petition.
Colour shows how this judgement treated each authority
Pepsico India Holdings Pvt. Ltd v. Food Inspector and AnotherExplained¶10
Pepsico India Holdings Pvt. Ltd v. Food Inspector and Another [2010 (4) KHC 767]
Rasheed v. Food InspectorFollowed¶13
Rasheed v. Food Inspector [2016 (2) KLT 390]
1 provisions across 1 enactments
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR
THE FOOD INSPECTOR KUTHUPARAMBA CIRCLE
M/S.SAI RAMANA RICE INDUSTRIES SETTIPALAM
C.S. DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
