The High Court allowed the revision petition, holding that since the food sample was analyzed in a non-notified laboratory, the prosecution failed under the Prevention of Food Adulteration Act, and the accused was acquitted.
Revision petition allowed; judgments set aside; revision petitioner 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
THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
CRL.REV.PET NO. 2097 OF 2012
AGAINST THE ORDER/JUDGMENT CC 729/2006 OF THE JUDICIAL
MAGISTRATE OF FIRST CLASS, NEDUMKANDOM
CRA 3/2012 OF THE COURT OF SESSION,THODUPUZHA
REVISION PETITIONER/S:
S.RAJU
S/O.SUBBAYYA NADAR, PAYYAMPALLIL VEEDU
CUMBAMMETTU KARA, KARUNAPURAM VILLAGE
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.DOMSON J.VATTAKUZHY
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM
OTHER PRESENT:
Smt Seetha S, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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C.S DIAS,J.
Crl.R.P No.2097 of 2012
----------------------------Dated this the 26th day of October, 2023
ORDER
The revision petition is filed questioning the legality and correctness of the judgments in Crl.A. No.3/2012 of the Court of Session, Thodupuzha (Appellate Court) and C.C. No.729/2006 of the Court of the Judicial First Class Magistrate, Nedumkandom (Trial Court), holding the revision petitioner guilty for the offences under Sec.248(2) of the Code of Criminal Procedure ( in short, Code) and Sec.2(ia) (f) 7(i) read with Sec.16(1A) (i) of the Prevention of Food Adulteration Act, ( for brevity, PFA Act) 1954 and Rule 5 Appendix B A 18-06-08 of the Prevention of Food Adulteration Rules, 1955 ( in short, PFA Rules). The revision petitioner was the accused and the respondent was the complainant before the Trial Court. For the sake of
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convenience, the parties are referred to as per their status before the Trial Court.
Prosecution case in brief:
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Code. The accused examined DW1 in the defence evidence.
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learned Public Prosecutor appearing for the respondent – State.
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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.
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“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
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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 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
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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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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)
Inspector (supra), following the declaration in Pepsico
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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.
on the basis of Ext P13 report of the Public Analyst on the ground that the sample that was seized from the accused was not conforming with the standards prescribed under the PFA Rules as it contained uric acid. Admittedly, the sample was tested by the Public Analyst in a laboratory not notified by the Central Government under Section 23(1-A)
(ee) of the Act. Thus, the ratio decidendi in Pepsico India
Holdings Private Ltd and Rasheed vs. Food Inspector (supra) stands attracted and prosecution fails.
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Consequentially, the revision petitioner/ accused is found
not guilty and has to be acquitted.
sd/-
C.S.DIAS,JUDGE
sks/26.10.23
1 issue framed by the court
Whether the prosecution fails if the food sample analysis is not conducted in a laboratory defined under Section 23(1-A)(ee) of the Prevention of Food Adulteration Act, as per Pepsico and Rasheed judg
Colour shows how this judgement treated each authority
Pepsico India Holdings Pvt. Ltd v. Food Inspector and AnotherRelied on¶42
Pepsico India Holdings Pvt. Ltd v. Food Inspector and Another [2010 (4) KHC 767]
Rasheed v. Food InspectorRelied on¶45
Rasheed v. Food Inspector [2016 (2) KLT 390]
4 provisions across 3 enactments
S.RAJU
STATE OF KERALA
C.S.DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
C.S.DIAS
Parties & counsel