Petitioner convicted under FCRA 2006 for selling adulterated Gingelly oil challenged conviction in Criminal Revision. High Court held prosecution failed to prove petitioner alone packed/market oil and set aside conviction and sentence.
Criminal Revision allowed. Conviction and sentence set aside. Petitioner acquitted.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.06.2017
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
Criminal Revision No.135 of 2017
and
Crl.M.P.Nos.1465 and 1467 of 2017
Sivananthan .. Petitioner
Vs
K.Mohan .. Respondents
Prayer: - Criminal Revision filed under Sections 397 r/w Section 401 of Cr.P.C., to set aside the against the judgment dated 27.01.2017 passed in Crl.A.No.50 of 2016 on the file of the learned II Additional District and Sessions Judge, Tindivanam confirming the judgment dated 07.11.2016 passed in S.T.C.No.732 of 2015 on the file of the learned Judicial Magistrate No.I, Tindivanam and allow the criminal revision.
For Appellant : Mr.V.Regunathan For Respondents : Mr.R.Ravichandran, Government Advocate (Crl. Side)
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O R D E R
The accused in S.T.C.No.732 of 2015 on the file of the learned
Judicial Magistrate No.I, Tindivanam, is the petitioner herein. He stood charged for the offence under Sections 52 and 59 (i) of the Food Safety and Standards Act, 2006 and Rules, 2011 (here-in-after, it may be referred to as "Act").
By judgment dated 07.11.2016, the trial Court convicted the
petitioner for the offences under Section 52 and 59(1) of the Act and under Section 52 of the Act, sentenced him to pay fine of Rs.10,000/-, in default, to undergo two months Simple Imprisonment and for the offence under Section 59 (i) of the Act, sentenced him to undergo 15 days Simple Imprisonment and to pay fine of Rs.7,000/-, in default, to undergo, two months Simple Imprisonment.
Challenging the said conviction and sentence, the petitioner/accused filed Criminal Appeal No.50 of 2016 on the file of the learned II Additional District and Sessions Judge, Tindivanam. The lower appellate Court by its judgment dated 27.01.2017 confirmed the conviction and sentence imposed by the trial Court, against which, the
present Criminal Revision has been filed by the petitioner/accused.
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2. The case of the prosecution, in brief, is as follows:
P.W.1 - the Food Safety Officer has inspected a shop namely,
Padmajothi Provision Store, situated at Vellimedupettai Bazaar Street, Tindivanam Taluk, Villupuram District on 18.03.2015 and purchased 20 packets of Gingelly oil (Sakthi) and in the presence of P.W.2 he had taken samples of 5 packets of Gingelly oil (Sakthi) and sent the same for chemical examination to the Food Laboratory, Chennai. He obtained a
report dated 30.03.2015, wherein it is stated that the Gingelly oil (Sakthi) seized from the above shop is adulterated and against the standards prescribed for "Gingelly oil" under Reg 2.2.1(12) of FSS (FPS&FA) Reg, 2011. The "Kries Test" conducted on the same proved positive and it was found that the oil contains 42.6 meq/kg Peroxide
and the value of the same is 42.6 meq/kg, which exceeded the normal
value of "10 meq/kg". Further, the test proved that "B.R.R. value and the value of Iodine was very less. All these make the sample unsafe for
use by virtue of its being sub-standard under Section 3(1) (zz) (xi) of
Food Safe and Standards Act, 2006. The report further stated that the
oil was in rancid nature.
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Sl.No. |
Analysis Done |
Method oftest used |
Resultofanalysis |
Stds.prescribedfor "GingellyOil" underReg.2.2.1.(12) ofFSS (FPS &FA) Reg.2011. |
|---|---|---|---|---|
1. |
B.R.R at 40ºC |
DGHS Manualmethods ofAnalysisLab. Manual- 2 |
53.4 |
58.0 - 61.0 |
2. |
Acid Value |
-do- |
0.97 |
|
3. |
Kries Test |
-do- |
Positive |
ShallbeNegative |
4. |
Iodine Value |
-do- |
78.21 |
Shallbewithin 103-120 |
5. |
Baudouin test |
-do- |
Negative |
ShallbePositive |
6. |
Halphen's test |
-do- |
Positive(28RU) |
ShallbeNegative¬ to exceed10RU |
7. |
Holde's test |
-do- |
Negative |
|
8. |
Test for Castoroil |
-do- |
Negative |
|
9. |
TestforArgemone oil |
-do- |
Negative |
|
10. |
BellierTurbidityTemperature |
-do- |
26.5ºC |
Not more than22ºC |
11. |
Saponificationvalue |
-do- | 191.68 |
|
12. |
Unsaponifiablematter |
-do- |
1.01% |
|
13. |
Peroxide value |
-do- |
42.6meq/kg |
Exceedsnormal valueof 10meq/kg |
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Sl. Analysis Done Method of Result Stds.
No. test used of prescribed
analys for "Gingelly
is Oil" under
Reg.
2.2.1.(12) of
FSS (FPS &
FA) Reg.
2011.
14. Test for -do- Positi
Palmolein ve
4. From the report, it is seen that there were 5 packets of Gingelly
oil (Sakthi), is against the provisions contained under Section 3 (i) (zz)
(xi) of the Food Safety and Standards Act, 2006. It is further seen that
the said Gingelly oil (Sakthi) was a mixture of Palmolein oil and Cotton
seed oil ["Test for Gingelly oil - Baudouin test - Negative", "Test for
cotton seed oil - Halphens test - Positive within 28 RU & Palmolein test
- Positive"], but labelled as "Gingelly oil" on the front panel and
mixture of Rice Oil + Gingelly oil on the back panel of the label.
Hence, it is Unsafe and misbranded under Sections 3 (1) (zz) (xi),
Section 3 (1) (zf) (A) (i), Sec 3 (1) (zf) B(ii), Section 27(1) of the Food
Safety and Standard Act 2006. P.W.1, after obtaining necessary
sanction, filed a complaint against the petitioner for the offences
under Sections 52 and 59(i) of the Food Safety and Standards Act 2006.
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that on 18.03.2015, while he was carrying out inspection in a shop namely, Padmajothi Provision Store, Vellimedupettai Bazaar Street, Tindivanam Taluk, Villupuram District, he purchased 20 packets of Gingelly oil for the purpose of taking samples for chemical examination. He forwarded the same for chemical examination and obtained a report dated 30.03.2015. The report is to the effect that the above Gingelly oil is unsafe and mis branded and it is a mixture of Palmolein oil and Cotton seed oil. He therefore, after obtaining necessary sanction, filed a complaint against the petitioner.
that he is a neighbourhood shop owner and P.W.1 purchased Gingelly oil
from the provision store and asked him to put his signature and he also
signed in the receipt. P.W.2 in his cross examination has deposed that P.W.1 has obtained signatures from him in four papers, but P.W.2 did
http://www.judis.nic.in not know the contents.
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under Section 313 (1) Cr.P.C., he denied the same as false. However,
he had not chosen to examine any witness or mark any documents on
his side.
convicted the accused. As against the same, the accused preferred an
appeal in Crl.A.No.50 of 2016 and the appellate Court dismissed the
appeal confirming the conviction and sentence passed by the trial
Court. Challenging the same, the present criminal revision has been filed by the accused.
petitioner and Mr. R.Ravichandran, learned Government Advocate
(Criminal side) appearing for the respondent.
http://www.judis.nic.in person, who sold the oil as well as the manufacturer were not made as
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accused, but, only the petitioner was made an accused. Apart from
that, it has not been shown that the petitioner alone has packed and marketed the Gingelly oil at the provision store and in order to prove the same, the prosecution has not examined any witnesses on their side and in the cross examination itself, P.W.1 had admitted the fact that he had not chosen to find out as to who is the manufacturer and the person, who sold the Gingelly oil and he had not taken steps to add
them as accused.
conviction and sentence imposed by both the Courts below.
for the respondent submitted that there is no necessity to examine the Public Analyst as a witness under Section 293 of the Code of Criminal
http://www.judis.nic.in Procedure and the report submitted under the hand of a Government,
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expert may be used as evidence in any inquiry, trial or other proceedings. He further submitted that having considered all the material facts, both the Courts below convicted the accused and sentenced him accordingly and hence, he sought for dismissal of the
criminal revision.
the materials available on record.
"As regards the failure to examine the Public
Analyst as a witness in the case no blame can be
laid on the prosecution. The report of the Public
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Analyst was there and if either the Court or the
appellant wanted him to be examined as a
witness appropriate steps would have been taken.
The prosecution cannot fail solely on the ground
that the Public Analyst had not been called in the
case."
and in view of the decision cited supra, the report of the Public Analyst is sufficient enough and it is not always necessary to summon him to depose in Court. The Court may, if it thinks fit, summon and examine him as to the subject matter of report.
packets seized from the Provision Store contain the name of the petitioner as a manufacturing agent and hence, the petitioner was made an accused, is concerned, absolutely there is no evidence to show
that the petitioner alone manufactured and packed the adulterated Gingelly oil except the evidence of P.W.1, who is the Food Safety http://www.judis.nic.in Officer, Villupuram District.
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only 20 packets of Gingelly oil (Sakthi) were seized from the Provision
Store and the owner of the shop was not examined as a witness to show
that he purchased the Gingelly oil (Sakthi) from the petitioner. Apart
from that, P.W.1, merely because the name has been printed in the packet, made a complaint on the presumption that the petitioner only packed and marketed the Gingelly oil (Sakthi) and there is no evidence to support the prosecution case that the petitioner only had packed and marketed the Gingelly oil (Sakthi).
been filed without any material to show that the petitioner alone packed and marketed. Apart from that, the prosecution has not
properly established that 20 packets of Gingelly oil, which were
allegedly seized from the provision store have been manufactured and marketed only by the petitioner and P.W.2 in his evidence has
categorically stated that he was asked to stand as a witness and
therefore, he signed in some blank papers, as requested by P.W.1. Therefore, this Court comes to the conclusion that the prosecution has
http://www.judis.nic.in failed to prove the case beyond any reasonable doubt and the trial
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Court as well as the appellate Court were not right in convicting the
petitioner on the basis of the insufficient materials placed by the proceeding party. Hence, this Court is inclined to set aside the conviction and sentence passed by the trial Court as well as confirmed by the appellate Court.
To
http://www.judis.nic.in 3. The Public Prosecutor,
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High Court, Madras.
V.BHARATHIDASAN.J.,
cla
Crl.R.C.No.135 of 2017
14
20.06.2017
3 issues framed by the court
Whether the conviction of the accused under the Food Safety and Standards Act, 2006 can stand when the prosecution failed to prove that the petitioner alone packed and marketed the adulterated oil bey
Whether examination of the Public Analyst as a witness is mandatory under Section 293 of the Code of Criminal Procedure when a government report is filed.
Whether the presumption that the petitioner packed and marketed the oil solely on the basis of the printed name on the packet packets is sufficient for conviction.
Colour shows how this judgement treated each authority
MANGALDAS RAGHAVJI RUPAREL AND ANOTHER Vs. THE STATE OF MAHARASHTRA AND ANOTHERApplied¶75
(AIR 1966 SC 128) · Who else cites this
4 provisions across 3 enactments
Sivananthan
K.Mohan
V.BHARATHIDASAN
As recorded by the court registry
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