Madras High Court
H.Lumbaram vs A.Ramaraj on 9 December, 2019
Author: P.N.Prakash
Bench: P.N. Prakash
Crl. R.C. No.1439 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.12.2019
CORAM :
THE HONOURABLE MR. JUSTICE P.N. PRAKASH
Crl. R.C. No.1439 of 2012
1.H.Lumbaram
2.K.Surendhrakumar Modi ... Revision Petitioners
Vs.
A.Ramaraj
SI and Flood Inspector,
Division 126, Zone 8,
Corporation of Chennai,
Chennai. ... Respondent
Prayer: Criminal Revision Case filed under Section 397 r/w. 401 Cr.P.C.,
praying to set aside the judgment, dated 09.10.2012, passed by the
II Additional Sessions Judge, Chennai, in C.A.No.161 of 2011, confirming the
judgment of conviction and sentence, dated 21.07.2011, passed by the
XX Metropolitan Magistrate, Chennai, in S.M.M.No.8 of 2011.
For Petitioners : Mr.Babu Muthu Meeran
For Respondent : Mrs.Kritika Kamal. P.
Government Advocate (Crl. Side)
ORDER
This Criminal Revision Case has been filed to set aside the judgment, dated 09.10.2012, passed by the II Additional Sessions Judge, Chennai, in http://www.judis.nic.in 1/8 Crl. R.C. No.1439 of 2012 C.A.No.161 of 2011, confirming the judgment of conviction and sentence, dated 21.07.2011, passed by the XX Metropolitan Magistrate, Chennai, in S.M.M.No.8 of 2011.
2.For the sake of convenience, the petitioners and the respondent will be referred to as accused and complainant, respectively.
3.It is the case of the complainant that on 21.01.2010, around 11.15 a.m., Ramaraj (P.W.1), Sanitary Inspector-cum-Health Inspector of Corporation of Chennai, along with Mohan (P.W.2), Assistant in the Corporation of Chennai, inspected 'Sri Nirmal Provisions Stores' at Door No.60/24-27, Rameswaram Road, T.Nagar, Chennai – 600 017, run by the accused, and lifted samples from 'Swastik Premium Assam Tea 500 grams', under the Prevention of Food Adulteration Act, 1954 ('PFA Act' for brevity) and sent the same to the Public Analyst for examination. The Public Analyst's report (Ex.P13), dated 23.02.2010, showed that the tea samples were not found to be adulterated, but, in the label of the tea packets, there is misbranding inasmuch as the Batch Number was not mentioned thereon.
4.On these allegations, a prosecution in S.M.M.No.8 of 2011 was launched against the petitioners/accused before the XX Metropolitan Magistrate, Chennai, under Section 7(ii), Section 16(i)(a)(i) read with 2(ix)(k) http://www.judis.nic.in 2/8 Crl. R.C. No.1439 of 2012 of the PFA Act and Rule 32(e) of Prevention of Food Adulteration Rules, 1955 ('PFA Rules' for brevity). When questioned, the accused pleaded 'not guilty'.
5.To prove the case, the prosecution examined two witnesses and marked 18 Exhibits. Exs.C1 to C4 were also marked. When the accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them, they denied the same. No witness was examined nor any document marked on the side of the accused.
6.After considering the evidence on record and hearing either side, the trial Court, by judgment dated 21.07.2011, convicted the accused of the offence and sentenced them to undergo simple imprisonment for three months and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months.
7.The appeal in C.A.No.161 of 2011 that was filed by the accused was dismissed by the II Additional Sessions Judge, Chennai, on 09.10.2012.
8.Challenging the concurrent findings of the two Courts below, the accused have filed the present Criminal Revision Case. http://www.judis.nic.in 3/8 Crl. R.C. No.1439 of 2012
9.Heard Mr.Babu Muthu Meeran, learned counsel appearing for the accused and Mrs.P.Kritika Kamal, learned Government Advocate (Crl. Side), appearing for the complainant.
10.It is trite that this Court should not embark upon re-appreciation of evidence, while exercising powers under Section 397 r/w. 401 Cr.P.C. However, if it is shown that there has been a palpable mis-appreciation of evidence by the two Courts below, which had resulted in miscarriage of justice, this Court is not denuded of the power to go through the evidence, in view of Section 401(1) Cr.P.C.
11.Admittedly, this is not a case of adulteration of food stuff, but of misbranding on the label of the food stuff. Section 2(ix) of the PFA Act contemplates 11 forms of misbranding and this case falls within the 11th form, viz., Section 2(ix)(k), ibid.
12.Rule 32(e) of the PFA Rules states that the label on the food stuff should contain Batch Number, but, in the case at hand, the Batch Number is absent.
13.Sub-Clause 7 of Section 10 of the PFA Act states that the Food Inspector shall call one or more persons to be present at the time of lifting the http://www.judis.nic.in 4/8 Crl. R.C. No.1439 of 2012 samples. Admittedly, in this case, no independent witness was joined, as required under Section 10(7) of the PFA Act. Even in the chief-examination of Ramaraj (P.W.1) and Mohan (P.W.2), they have not stated a word on this aspect. Mohan (P.W.2), in the cross-examination, has stated that, he does not know if Ramaraj (P.W.1) had called any person to stand as a witness while lifting the samples. Unfortunately, Mohan (P.W.2), who was the Assistant to Ramaraj (P.W.1) and who was said to be present along with Ramaraj (P.W.1) when the samples were taken, had not corroborated the evidence of Ramaraj (P.W.1) on this aspect.
14.In State by Food Inspector, Trichy v. Paulraj [2005-1- L.W. (Crl.) 476], a learned single Judge of this Court has held that the compliance of provisions of Section 10(7) of the PFA Act is mandatory. Therefore, on this short ground, this Criminal Revision Case deserves to be allowed and the accused deserve acquittal.
15.However, Mr.Babu Muthu Meeran brought to the notice of this Court, three unreported judgments of this Court, viz., A.Eswaramoorthy and others v. The Food Inspector [Crl.O.P.(MD)No.7988 of 2010] dated 10.08.2010, P.Robert Immanuel v. State by the Food Inspector [Crl.O.P.(MD)No.9783 of 2008] dated 17.08.2009 and A.Ramachindir v. State by the Food Inspector [Crl.O.P.No.1549 of 2011] dated http://www.judis.nic.in 5/8 Crl. R.C. No.1439 of 2012 18.07.2017, wherein, this Court has quashed the prosecution under Section 482 Cr.P.C. on the following ground :
“it has been merely stated that sample is misbranded as it not labeled in accordance with Rules 32(f)(i) and 42(zzz) 17 of PFA Rules. It is not quite clear as to how the sample is misbranded and the averments made in the complaint are also bereft of any particulars. There must be a specific averment that the customers are being misled on account of misbranding and in the absence of any such clear averments, it cannot be said that the customers are misled or misdirected.”
16.This Court is unable to persuade itself to agree with the above reasoning, because, neither the parent Act nor the Rules envisage that there should be an averment that the customers are misled on account of misbranding. Prevention of Food Adulteration Act, 1954, is a legislation, the object of which is to protect the health of the citizens and hence, a strict interpretation, which seeks to uphold the object of the Act, should be given.
As stated above, there are 11 forms of misbranding and the Parliament has thought it fit to make such a misbranding, by itself, an offence without anything more, only to ensure that the unlettered gullible who are in majority in this country are not misled. This Court would have referred this matter to the Hon'ble Chief Justice to be placed before a Division Bench for resolving this http://www.judis.nic.in 6/8 Crl. R.C. No.1439 of 2012 issue, but, for the fact that the PFA Act itself has now been repealed and substituted by the Food Safety and Standards Act, 2006, does not intend to do so.
17.In the result, this Criminal Revision Case is allowed for the reasons stated in Paragraph No.14 of this order and not for the reasons stated in the judgments cited above in Paragraph No.15 of this order. The judgments passed by the two Courts below are set aside. The accused are acquitted of the charge.
Fine amount, if any, paid by the accused, shall be refunded to them. Bail bond, if any executed, shall stand discharged.
09.12.2019 mkn Copy to :
1.The II Additional Sessions Judge, Chennai.
2.The XX Metropolitan Magistrate, Chennai.
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar | with a direction to send back the (Criminal Section), | original records to the Court below.
High Court, Madras. | http://www.judis.nic.in 7/8 Crl. R.C. No.1439 of 2012 P.N.PRAKASH, J. mkn Crl. R.C. No.1439 of 2012 09.12.2019 http://www.judis.nic.in 8/8