Kerala High Court
E.P.Baiju vs Food Insepctor on 25 January, 2012
Author: P.Q.Barkath Ali
Bench: P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI
WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933
CRRP.No. 833 of 2001 ( )
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CRA.NO.31/1997 of ADDL.SESSIONS COURT, NORTH PARAVUR
CC.NO.1152/1993 of JUDICIAL FIRST CLASS MAGISTRATE
COURT,PERUMBAVOOR.
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PETITIONER(S):APPELLANTS/ACCUSED:
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1. E.P.BAIJU, S/O.PAPPU,
ETTUNGAL HOUSE, OKKAL PO,
KOOVAPPADY PANCHAYATH, KALADY.
2. P.T.PAPPU, ETTUNGAL HOUSE,
OKKAL PO, KOOVAPPADY PANCHAYATH,
KALADY.
BY ADVS.SRI.SANTHOSH SUBRAMANIAN
SRI.SHEJI P.ABRAHAM
SRI.E.A.THANKAPPAN
SRI.SHERRY J. THOMAS
SRI.S.SREEKUMAR(NORTH PARAVUR)
RESPONDENTS/RESPONDENTS/COMPLAINANT(S):
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1. FOOD INSEPCTOR, ANGAMALY CIRCLE,
ANGAMALY.
2. STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
R1 & R2 BY PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
01/12/09, THE COURT ON 25/01/2012 PASSED THE FOLLOWING:
Kss
P.Q.BARKATH ALI, J.
=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= CRL. R.P. No. 833 of 2001 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 25th day of January, 2012 0 R D E R Revision petitioners are accused 1 and 2 in .C. No.1152 of 1993 of the Judicial Magistrate of the First Class, Perumbavoor and appellants in Crl.A.No.31 of 1997 on the file of the Addl. Sessions Court, North Paravur. They were convicted under sections 2(i-a) (a) and (m), 7(i)(iii) read with section 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo simple imprisonment for six months each and to pay a fine of `1,000/- each, in default to undergo simple imprisonment for one month each thereunder by the trial court by judgment dated April 15, 1997, which was confirmed in appeal by the lower appellate court by judgment dated July 4, 2001. Accused 1 and 2 have come up in revision challenging their conviction and sentence.
2. This was a case instituted on a complaint filed by the Food Inspector, Angamaly Circle (PW1). First revision CRRP 833/2001 2 petitioner/first accused is the vendor and second revision petitioner/second accused is the licensee of the Ettungal Modern Rice Mill, Koovappady Panchayat. The case of the complainant, as testified by him as PW1 before the trial court and as detailed in the complaint, in brief, is this:-
Ext.P1 is the Gazette notification to show that the Koovappady Panchayat comes within the jurisdiction of PW1. On August 26, 1993 at about 3.30 p.m. he inspected Ettungal Modern Rice Mill at Okkal situated in a building bearing door No.1/472 for which the second accused has PFA licence. In the present case the complainant purchased 750 grams of boiled rice from the first accused who was present therein, after giving Form VI notice. Ext.P2 is the copy of the said notice, on the back of which the first accused has acknowledged the receipt of the same. Ext.P2
(a) is the acknowledgment given by the first accused and Ext.P3 is the sales bill issued by him. PW1 sampled the boiled rice purchased in accordance with law. One part of the sample was sent to the Public Analyst. Report of the CRRP 833/2001 3 Public Analyst Ext.P10 showed that the sample was adulterated, as it contained an inorganic pigment Red Ochre. On the request of the first accused, second part of the sample was sent for chemical analysis to Central Food Laboratory. Ext.P11 is the report of the Director of the Central Food Laboratory wherein it is stated that the sample contained pesticide residue (carbaryl) and does not conform to the standard prescribed for boiled rice.
Therefore, PW1 filed the complaint before the trial court.
3. On receipt of the complaint, the learned Magistrate took cognizance of the offence and recorded statement of PW1, the complainant. As a prima facie case was made out against the accused persons, the charges under sections sections 2(i-a) (a) and (m), 7(i)(iii) read with section 16(1)
(a) (i) of the Prevention of Food Adulteration Act, 1954 were framed against them and explained, to which they pleaded not guilty. PWs.2 to 4 were examined on the side of the complainant and Exts.P1 to P17 were marked. When questioned under section 313 Cr.P.C., the accused persons CRRP 833/2001 4 denied having committed any offence. As the trial court found no ground to acquit the accused persons, they were permitted to enter upon their defence and thereupon DW1 was examined from their side. The trial court on an appreciation of the evidence found the accused persons guilty of the offences punishable under sections sections 2(i-
a) (a) and (m), 7(i)(iii) read with section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 convicted them thereunder and sentenced them as aforesaid, which was confirmed in appeal by the lower appellate court. The accused persons have come up in revision challenging their conviction and sentence.
4. Heard the learned counsel for the revision petitioners/persons and the learned Public Prosecutor.
5. Sri.Santhosh Subramanian, the learned counsel for the petitioners argued that in the complaint the allegation is that the sample rice contained inorganic pigment 'Red Ochre' while he had been found guilty for having the sample contained pesticides, that in the absence of a charge to that CRRP 833/2001 5 effect consent obtained from the concerned authority under section 20 of the Act cannot be sustained. He further argued that as there was discrepancy in Exts.P10 and P11 the benefit of doubt should be given to the accused persons. I am unable to agree. This is not a case where the accused persons have been charged for one offence, but convicted for another offence. The charge is the sale of adulterated boiled rice, which is unfit for human consumption. Ext.P11, the certificate of Central Food Laboratory is also mentioned in the charge. Therefore, the contention of the revision petitioners that they have been found guilty of offence for which they have not been charged cannot be sustained. It follows that no fresh consent is required as provided under section 20 of the Act.
6. Citing a decision in Pepsio India HoldingsPrivate Ltd.V. Food Inspector and another ((2011)1 SCC (Cri) 8), the learned counsel for the revision petitioners argued that it is mandatory for the Central Government to prescribe laboratories under section 23(1-A)(ee) for testing of food CRRP 833/2001 6 samples/adulterants, and to prescribe methods of analysis under section 23(1-A)(hh) and that in the present case no laboratories were prescribed and no methods for testing were prescribed in 1993 when the sample was taken and that therefore the accused persons are entitled to be acquitted. I am unable to agree. The facts of the above decision do not apply to the facts of the present case. The above case relates to the sweetened carbonated water (Pepsy) containing pesticide residue, carbofuran, to the extent of 0.001 mg per litre. Limit up to which pesticide could be added to sweetened carbonated water was also not prescribed in Table to R.65(2) of 1955 Rules, when sample was collected. By subsequent notification the tolerance limit of pesticide residue was prescribed as 0.001 mg per litre. Thus in the above said decision the tolerance limit of pesticide residue in the sample was within the tolerance limit. But in the present case the food article is rice. During 1993, when the sample was taken, for food grains the tolerance limit of pesticide was prescribed as 1.5 mg per CRRP 833/2001 7 kilogram (PPM) as prescribed in Table to Rule 65(2) of the Rules. The sample contained pesticide residue - carbaryl 80 PPM. Only during 1998 minimum tolerance limit of pesticide in rice was prescribed as 2.5 PPM by notification dated April 6, 1998. Thus, the pesticides in the sample are exceeds the tolerance limit. That apart in Ext.P11 the Analyst has reported that the sample has strong smell of pesticide. That being so, the sample in the present case has to be held as adulterated.
7. An attempt was made on the side of the counsel for the revision petitioners to show that the chance of the second sample sent to the central Food Laboratory being the sample taken from another rice mill as in Ext.P11 presence of 'Red Ochre' was not mentioned. I am unable to agree. The second sample was called for at the request of the first accused. At that time the accused persons have no case that the sample was changed. Further in Ext.P11 the Analyst has reported that the seal was intact. Therefore, the conviction of the revision petitioners that the second sample CRRP 833/2001 8 sent to Central Food Laboratory is not the sample taken by PW1 has only to be rejected. No other point is argued.
8. In the light of the above finding, I am of the view that the trial court as well as the lower appellate court is justified in holding that the revision petitioners/accused had committed the offence punishable under section 16(1)(a)(i) of the Act and convicting them thereunder. Therefore, I confirm the conviction of the revision petitioners under section 16(1)(a)(i) of the Act.
9. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for 6 months each and to pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for one month each, which was confirmed in appeal by the lower appellate court. The incident is of the year 1993. Further, there is discrepancies in the certificate of the Public Analyst as well as that of the Analyst of the Central Food Laboratory. Taking into consideration all these aspects, I feel that a lenient view is taken. In the circumstances of the case, I feel that a CRRP 833/2001 9 sentence of imprisonment till the rising of court and to pay fine of Rs.25,000/- each, in default to undergo simple imprisonment for three months each would meet the ends of justice.
10. In the result, the revision petition is allowed in part. The conviction of the revision petitioners under section 16(1)(a)(i) of the Act is confirmed. The sentence is modified and they are sentenced to undergo imprisonment till the rising of court and to pay fine of Rs.25,000/- each, in default to undergo simple imprisonment for three months each. Their bail bonds are cancelled. The revision petitioners shall surrender before the trial court on or before February 28, 2012 to suffer the sentence. One month's time is granted for payment of the fine.
P.Q.BARKATH ALI, JUDGE mn.
CRRP 833/2001 10
P.Q.BARKATH ALI, J.
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CRL. R.P. No. 833 of 2001
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0 R D E R
25th day of January, 2012