Kerala High Court
Gopan vs State Of Kerala Represented By The on 12 June, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937
Crl.Rev.Pet.No. 4537 of 2007 ( )
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AGAINST THE JUDGMENT IN CRA 147/2005 OF THE SESSIONS JUDGE,
TRIVANDRUM DATED 12-06-2007
AGAINST THE JUDGMENT IN ST 1644/2002 of J.M.F.C.-II,ATTINGAL
DATED 31-01-2005
REVISION PETITIONER(S)/REVISION PETITIONERS/APPELLANTS/ACCUSED:
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1. GOPAN, PRIYA NIVAS, MANKULAM, ALIYADU. PO
2. SHEELA SURENDRAN,USHUS,VENJARAMOODU. PO
THIRUVANANTHAPURAM.
BY ADVS.SRI.WILSON URMESE
SRI.M.C.ANTONY
RESPONDENT(S)/COMPLAINANT:
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1. STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. THE FOOD INSPECTOR, KILIMANOOR
CIRCLE, ATTINGAL.
PUBLIC PROSECUTOR SRI. R. GITHESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 07-01-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
B. SUDHEENDRA KUMAR, J.
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Crl.R.P. No. 4537 of 2007
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Dated this the 7th day of January, 2016
ORDER
The accused persons in S.T. No. 1644 of 2002 on the files of the Court of the Judicial Magistrate of First Class- II, Attingal, have filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Sec. 16 (1-A)(i) read with Sections 2(ia) (a) (j) and 7(i) of Prevention of Food Adulteration Act, 1954.
2. Heard.
3. The prosecution allegation can be briefly stated thus:-
On 28-8-2002 at about 1.30 p.m., the Food Inspector, Kilimanoor Circle, purchased 1500 grms. of fried rice from the Restaurant belonging to the 2nd accused. The first accused was the vendor. After sampling as per rules, one sample was sent to the Public Analyst for analysis. The report of the Public Analyst would show that the Crl.R.P. No. 4537 of 2007 -: 2 :- sample contained synthetic food colour tartrazine sunset yellow PCF and hence the same was adulterated. On the request of the accused, another sample was sent to the Central Food Laboratory for analysis. Ext. P12 report of the Central Laboratory would also show that the sample did not conform to the standard prescribed for Fried Rice under the Prevention of Food Adulteration Rules, 1955 and was therefore adulterated.
4. Before the trial Court, PW1 and PW2 were examined and Exts. P1 to P20 were marked for the prosecution. No evidence was adduced on the side of the revision petitioner.
5. The learned counsel for the revision petitioner has submitted that since no laboratory for the analysis of the food item was defined and no validated method of analysis was prescribed as per the mandate of Section 23 (1-A)(ee) and (hh) of the PFA Act, Ext.P12 cannot be acted upon to hold that the food item purchased by the Food Inspector was adulterated. The learned counsel for Crl.R.P. No. 4537 of 2007 -: 3 :- the revision petitioner relied on the decision of the Apex Court in Pepsico India Holdings (P) Ltd. v. Food Inspector [(2011) 1 SCC 176] to buttress his argument.
6. In this case, Admittedly, the laboratory for the analysis of food item was not defined and no validated method of analysis of the food item was prescribed as mandated under Section 23 (1-A) (ee) and (hh) of the P.F.A. Act. Therefore, Ext. P12 report of analysis cannot be acted upon to hold that the food item purchased in this case was adulterated in view of the decision of the Apex court in Pepsico India Holdings (supra). It was held by the Supreme Court in Pepsico India Holdings (supra) that since the Laboratories were not notified and the tests conducted by such laboratories were not admissible in evidence, no prosecution could be based on such report and the accused was entitled to get acquittal. In the decision of this Court in Gopalakrishnan v. Food Inspector [2013 (3) KLT 455], the court relied on the decision of the Supreme Court in Pepsico (supra) and found that the Public Analyst's report was not admissible in evidence and accordingly, the Court acquitted the accused. The matter was referred to a Division Bench Crl.R.P. No. 4537 of 2007 -: 4 :- and the Division Bench also affirmed the said decision, submitted by the learned counsel for the petitioner and the learned Public Prosecutor. Even otherwise, in view of the decision of the Pepsico's Case, the conviction cannot be sustained as no laboratory was notified and no validated method of analysis was specified as mandated under Section 23 (1-A) (ee) and (hh) of the Prevention of Food Adulteration Act, 1954.
In the result, this Revision Petition stands allowed setting aside the conviction and sentence passed by the courts below under Sec. 16 (1-A)(i) read with Sections 2(ia) (a) (j) and 7(i) of PFA Act, 1954, and the revision petitioners are acquitted for the said offence. The bail bonds of the revision petitioners stand cancelled and they are set at liberty.
B. SUDHEENDRA KUMAR, JUDGE.
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