Kerala High Court
E.K.Varghese vs Food Inspector on 25 March, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 25TH DAY OF MARCH 2014/4TH CHAITHRA, 1936
Crl.Rev.Pet.No. 3245 of 2004
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CRL.APPEAL NO. 220/1999 OF ADDL.SESSIONS COURT-I,MAVELIKKARA
CC NO. 20/1995 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I,
CHENGANNUR
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PETITIONER/APPELLANT/ACCUSED:
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E.K.VARGHESE,
S/O.KURIAN THOMAS,
PUTHENPUTHUVELIL, ALA,
PENNUKARA.
BY ADV. SRI.N.A.MURALEEDHARAN
RESPONDENTS/RESPONDENT/COMPLAINANT:
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1. FOOD INSPECTOR,
CHENGANNUR CIRCLE,
CHENGANNUR.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
R1 & R2 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
SRI.TOM JOSE PADINJAREKKARA
BY SR.GOVERNMENT PLEADER SRI.LIJU V.STEPHEN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 02/12/2013, THE COURT ON 25/03/2014 PASSED
THE FOLLOWING:
Kss
K.HARILAL, J.
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Crl. R.P. No.3245 of 2004
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Dated this the 25th day of March, 2014
O R D E R
The revision petitioner herein is the accused in C.C.No.20/1995 on the files of the Judicial First Class Magistrate's Court-I, Chengannur. He was charge sheeted for the offences punishable under Section 2(ix)(c), 7(ii) and
(iv) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, (for short, 'the Act'), read with Rule 44A of the Prevention of Food Adulteration Rules, 1955, (for short 'the Rules'), and prosecuted thereunder. After trial, the learned Magistrate found the revision petitioner guilty of the said offences and convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a fine of `1,000/- and in default, to undergo simple imprisonment for one month.
2. Feeling aggrieved, though he had preferred Crl.R.P.3245/04 :2:
Crl.A.No.220/99 before the Additional Sessions Judge-I, Mavelikara, after reappreciating the entire evidence on record, the learned Sessions Judge also confirmed the verdict of guilty, conviction and sentence as such and dismissed the appeal. The legality, propriety and correctness of the concurrent findings of conviction and sentence are under challenge in this Revision Petition.
3. The gist of the prosecution case is as follows:
The Food Inspector inspected the provision store of the revision petitioner in Door No.IV/293 of Ala Panchayat and purchased 450 grams of Toor Dhal for the purpose of analysis. After sampling, one part was forwarded to Public Analyst, Government Analysts' Laboratory, Thiruvananthapuram, for analysis. The report of the Public Analyst shows that the sample consists of Peas Dhal and Kesari Dhal. Kesari Dhal noted was 1.20/0 by weight. No damaged grain, foreign matter, weevilled grains, uric acid content were detected in the sample. On the request of the accused, second sample was forwarded to the Crl.R.P.3245/04 :3:
Central Food Laboratory. The said certificate shows that the sample is a mixture of dehusked split grains of toor, watna and Lakh Dhal. The sample contains abundant living insects and insect damaged grains. Weevilled grains is 87% by count. Other edible grains is 14% by weight. Uric acid is 8000 mg/kg and Lakh Dhal is 0.50% by weight. So, the sample does not conform to the standards of Arhar Dhal and as it contains Lakh Dhal, it contravenes Rule 44A of the 1955 Rules. On the side of the prosecution, two witnesses were examined as P.Ws. 1 and 2 and Exts.P1 to P18 were marked. D.W.1 was examined on the defence side. After trial, the learned Magistrate found the revision petitioner guilty of the offences alleged against him and thereafter, the learned Sessions Judge confirmed the conviction and sentence in appeal.
4. Shri.N.A. Muraleedharan, the learned counsel for the revision petitioner submits that the illegality and impropriety involved in the impugned judgment had been considered by the Apex Court in Pepsico India Holdings Crl.R.P.3245/04 :4:
(P) Ltd. Vs. Food Inspector [(2011) 1 SCC 176] and at present the legal position stands well settled in favour of the revision petitioner. Since neither any validated method of analysis had been prescribed under Section 23(1A)(ee) and (hh) of the Act nor had any laboratory been particularly specified for such examination, no reliance can be placed on the report of either the Public Analyst or the Director of Central Food Laboratory. In short, no conviction can be based on either Ext.P12 report of the Public Analyst or Ext.P14 report of the Central Laboratory.
This Court also relied on the above decision of the Supreme Court and acquitted of the accused in Gopalakrishnan Vs. Food Inspector [2013 (3) KLT 455]. Therefore, in the light of the above referred decision of the Apex Court and this Court, this Revision Petition is also liable to be allowed.
5. Per contra, Shri. Tom Jose Padinjarekkara, the learned Additional Director General of Prosecutions advanced arguments to justify the conviction and sentence Crl.R.P.3245/04 :5:
imposed on the revision petitioner and cited State of Kerala Vs. Mammu Musaliar (1974 KHC 153), Tito Varghese Vs. Food Inspector (2012 (4) KLT 796, Prem Ballab and Another Vs. The State (Delhi Admn.) (1977 KHC 420) and Jagdish Prasad Vs. State of West Bengal (1972 KHC 795). The learned Addl. Director General of Prosecutions further submits that what is held in Pepsico's case (supra) is correctly interpreted in Tito Varghese's case (supra) and the proposition laid down by the Apex Court in Pepsico's case (supra) is applicable to the food articles involved in that case alone and that cannot be interpreted as a general proposition.
6. In view of the submissions at the Bar, the only question to be considered is, whether the decision in Pepsico's case (supra) is applicable to the instance case? Put it differently, can Ext.P14 report of the Director of Central Food Laboratory be relied for basing conviction, in the absence of defined laboratory and validated method of analysis under Section 23(1A) (ee) and (hh) of the Act?
Crl.R.P.3245/04 :6:
7. In Pepsico's case (supra), the question
considered by the Apex Court was that, in the absence of any prescribed and validated method of analysis under Section 23(1A)(hh), could prosecution have been launched against the accused? First of all, the context under which the above question was considered also must be looked into. In the impugned judgment under challenge before the Apex court, this Court held that, the provisions under Section 23(1A)(ee) and (hh) are basically enabling provisions under which the Central Government was empowered to define the method of analysis and to prescribe laboratories where samples could be tested. But, it was not necessary to do so before sampling could be declared as adulterated and were not mandatory and non formulation of rules under the above said provisions of the Act could not be said to be fatal to the prosecution. But, over-ruling the above findings, the Apex Court in Pepsico's case (supra), held that, the High Court misconstrued the provisions of Sections 23(1A)(ee) and (hh) in holding that Crl.R.P.3245/04 :7:
the same were basically enabling provisions and were not mandatory and the issue could, in any event, be solved by the Central Government by framing the Rules thereunder, by which specified tests to be held in designated laboratories could be spelt out. Consequently, the High Court also erred in holding that the non-formulation of rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution. The observation of the High Court that if the submissions made on behalf of the appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of carbofuran detected in the sample of Pepsi, which was sent for examination to the forensic laboratory, is within the tolerance limits prescribed for sweetened carbonated water with effect from 17.6.2009. Hence the same would not attract the provisions of Sections 2(ia)(h) or (m) of the Crl.R.P.3245/04 :8:
1954 Act or the consequences thereof.
8. It was further held that both the questions regarding the failure of the Central Government to frame Rules to define the laboratories, where samples of food could be analysed by the public analyst, or to define the validated methods of analysis and the liability of the Directors who are the appellants herein, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act and for holding that the sweetened carbonated water manufactured by the appellants was adulterated in terms of the said Rules. Since the range indicated as to the limits of tolerance of the presence of pesticides in different articles of food, including sweetened carbonated water, which was included in the Table appended to Rule 65(2) with effect from 17.6.2009, provides very little or practically no margin for error, the selection of laboratories and the prescription of tolerance limits for different articles Crl.R.P.3245/04 :9:
of food acquires great significance. The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. The mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose and the subsequent inclusion of sweetened carbonated water seems to indicate so and leans more in favour of the appellants.
9. There arises another question in view of the above decision. The question in controversy considered in Pepsico's case was the legality of the chemical analysis report, where the Directorate General of Health Services (DGHS) method was used for analysis. But, in the instance case, the question in controversy is the reliability of Ext.P14 report of the Central Food Laboratory. The factual difference is that, in Pepsico's case, the company did not take steps for getting the second sample analysed by the Central Food Laboratory. But, in the instance case, the Crl.R.P.3245/04 :10:
accused had availed of that opportunity and obtained Ext.P14 report. But, I find that the factual situation of this case is also covered by the Apex Court in Pepsico's case. When the learned counsel for the respondent appearing in Pepsico's case brought to notice the non exercise of right to get the second sample tested by the Central Food Laboratory, under Section 13(2) of the Prevention of Food Adulteration Act, the Apex Court held that, "Since neither any validated method of analysis had been prescribed under Section 23(1A)(ee) and (hh) of the 1954 Act nor had any laboratory been particularly specified for such examination, such an exercise would have been futile."
10. The learned Addl. Director General of Prosecutions drew my attention to the decision in Tito Varghese's case (supra) where another Bench of this Court has not followed Pepsico's decision, on a view that Pepsico's decision was confined to food articles involved in that case only. But the learned counsel for the revision petitioner drew my attention to the latest decision of this Crl.R.P.3245/04 :11:
Court in Gopalakrishnan Vs. Food Inspector [2013 (3) KLT 455] wherein this Court considered the question whether the decision in Pepsico's case is confined to food articles involved in that case only. After considering this question, the learned Single Judge of this Court held as follows:
"10. The learned Public Prosecutor as well as the learned counsel for the petitioner have pointed out that two learned Single Judges of this Court had occasions to consider the question whether the dictums laid down in Pepsico can be applied to all cases wherein food articles were analysed by public analysts in the absence of defined laboratories where samples of articles of food or adulterants may be analysed by public analysts as contemplated under Section 23(1A)(ee) and in the absence of defined method of analysis as contemplated under Section 23(1A)(hh) of the 1954 Act, and have taken divergent views in the matter. One view is that it is applicable to all such cases. The other view is that the dictums laid down in Pepsico is confined to the question regarding the detection of the percentage of Carbofuran in the sample of Pepsi, which is sweetened Crl.R.P.3245/04 :12:
Carbonated water. The learned Public Prosecutor has argued that, in Pepsico, the main question mooted for consideration is with regard to the detection of the tolerance limit of the pesticides in Pepsi and it was at that juncture, the said decision was rendered, and has persuaded me to subscribe to that view.
11. A careful scrutiny of the judgment of the Apex Court in Pepsico dose not persuade me to subscribe to such a view in the matter, especially when the main point considered by the Apex Court in the said decision is as the one noted earlier, as item No.(1) in paragraph 2 of that judgment. Further, paragraph 41 of the judgment in Pepsico makes it clear that the question before the High Court in that case also was relating to the challenge regarding the non framing of Rules under Sections 23(1A)(ee) and (hh) of the 1954 Act. In paragraph 42 of the decision, the Apex Court has considered the fact that the High Court was not convinced with the submission made on behalf of the appellants in that case that in the absence of any prescribed and validated method of analysis under Sections 23(1A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon.
12. In paragraph 43 of Pepsico, the Crl.R.P.3245/04 :13:
Apex Court held that, if the view taken by the High Court is accepted, it can lead to a pick- and-choose method to suit the prosecution. In paragraph 44, it was held that-
"The High Court also misconstrued the provisions of Sections 23(1A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing the Rules thereunder, by which specified tests to be held in designated laboratories could be spelt out. Consequently, the High Court also erred in holding that the non-formulation of rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
In paragraph 45, it was held that-
"As far as Grounds 3, 4, and 5 are concerned, the High Court failed to consider the reasons given on behalf of the appellants for not sending the Company's sample to the forensic laboratory, to the effect that, since neither any validated method of analysis had been prescribed under Sections 23(1A)(ee) and (hh) of the 1954 Act, nor had any laboratory been particularly specified for such examination, such an exercise would have been futile."
13. In the decision in Pepsico, the Crl.R.P.3245/04 :14:
Company did not take steps for getting the second sample analysed by the Central Food Laboratory. Even in such a case, the Apex Court held that since neither any validated method of analysis had been prescribed under Sections 23(1A)(ee) and (hh) of the 1954 Act, nor had any laboratory been particularly specified for such examination, such an exercise would have been futile. Matters being so, even in a case wherein the second sample was sent to the Central Food Laboratory under the then existing structure and a result was obtained, still, the accused can validly contend that the said exercise was futile, as no validated method of analysis had been prescribed and no laboratory has been particularly specified for such examination. On going through the decision in Pepsico, it cannot be said that the said decision is confined to the food article involved in that case only.
14. On going through the judgment in Pepsico, it seems that the Apex Court has approved the argument of the appellant in that case, that the provisions under Sections 23(1A) (ee) and (hh) are mandatory. When the liberty of a citizen, who is an accused in a case under the 1954 Act, is in question, its provisions are to be construed strictly. When it relates to severe Crl.R.P.3245/04 :15:
consequences on the penal provision, Sections 23(1A)(ee) and (hh) have to be held as mandatory. There is absolutely nothing to show that the said provisions are directory. Further, it seems that the view taken by the High Court in the case in Pepsico that, if the arguments of the appellant relating to Sections 23(1A)(ee) and (hh) were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, was repelled by the Apex Court specifically in paragraph 43 of the judgment.
15. Matters being so, the dictums laid down by the Apex Court in Pepsico are squarely applicable to the present case also. As such laboratories are not defined for the analysis by Public Analyst and the methods of analysis were not then defined, the argument of the learned counsel for the petitioner in this case that Ext.P12 as well as Ext.P16 cannot be relied on, is only to be accepted. Therefore, this Crl.R.P. is only to be allowed, and the conviction and sentence passed by the trial court, which are upheld by the appellate court, are only to be set aside, and I do so."
11. I fully agree with the above findings of the learned Single Judge that the decision in Pepsico's case is Crl.R.P.3245/04 :16:
not confined to the food articles involved in that case only. Moreover, this Court is bound to follow the decision in Pepsico's case as the same is the law declared by the Supreme Court under Article 141 of the Constitution of India.
12. In the instance case, Ext.P14 report is dated 10.4.1995. Indisputably, no notification under Section 23 of the Act, specifying the method of analysis or defining the laboratory, was made at that time. Therefore, no reliance can be placed on Ext.P14 to bring home the guilt of the accused.
13. Though the learned Addl. Director General of Prosecutions has cited some other decisions, those decisions have no application at all to the question in controversy discussed above. Though the learned counsel for both parties advanced arguments relating to some other points involved in this case, I find that, when the prime evidence on which the conviction was based became unreliable, there is no need to consider other points having Crl.R.P.3245/04 :17:
lesser significance.
14. I find that, in the light of the decision in Pepsico's case referred above, no conviction can be based on Ext.P14 analysis report of the Director of Central Food Laboratory. Thus, the conviction and the sentence imposed on the revision petitioner by the trial court and upheld by the Appellate Court by the impugned judgment under challenge are set aside and the revision petitioner is acquitted of the said offences.
The Revision Petition is allowed accordingly.
Sd/-
(K.HARILAL, JUDGE) okb.