Kerala High Court
Itty Mathai vs Food Inspector on 12 January, 2016
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937
Crl.Rev.Pet.No. 1686 of 2003 ( )
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CRL.A 11/1996 of ADDL.DISTRICT &SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA
ST 286/1989 of J.M.F.C.,THIRUVALLA
REVISION PETITIONER/APPELLANT/ACCUSED:
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ITTY MATHAI, AGED 70 YEARS
METTINPURATHU
KADAMANKULAM PO, KALLOPPARA, MALLAPPALLY TALUK
BY ADVS.SRI.T.S.JOHN
SRI.M.S.RADHAKRISHNAN NAIR
RESPONDENTS/ RESPONDENTS/COMPLAINANT:
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1. FOOD INSPECTOR, THIRUVALLA CIRCLE
KAVUMBHAGAM, THIRUVALLA
2. STATE OF KERALA, REPRESENTED BY THE STATE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM
R1 & R2 BY PUBLIC PROSECUTOR, SHRI.R.GITHESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
12-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
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Crl.R.P. No.1686 of 2003
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Dated this the 12th day of January 2016
O R D E R
The accused in S.T. No.286 of 1989 on the files of the Court of the Judicial Magistrate of First Class, Thiruvallla filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 16(1)(a)(i) read with Section 7(i) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954.
2. Heard.
3. The prosecution allegation can be briefly stated thus:-
On 17.11.1988 at 11.30 a.m., PW3, the Food Crl.R.P.1686/2003 : 2 : Inspector, purchased 750 gram of boiled rice from the shop of the revision petitioner. After sampling as per rules, one of the samples was sent for analysis to the Public Analyst. The Public Analyst filed Ext. P12 report stating that the sample did not conform to the standard prescribed for food grains under the Prevention of Food Adulteration Rules, 1956 and therefore, the same was adulterated.
4. Before the trial Court, PW1 to PW7 were examined and Exts.P1 to P18 were marked for the prosecution. No evidence was adduced on the side of the revision petitioner.
5. The learned counsel for the revision petitioners 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 Crl.R.P.1686/2003 : 3 : (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 the revision petitioners 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 Crl.R.P.1686/2003 : 4 : 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 India Holdings (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 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 in Pepsico India Holdings (supra), the conviction in this case cannot be sustained as no laboratory was notified and no Crl.R.P.1686/2003 : 5 : 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 Sections 16(1)(a)(i) read with Section 7(i) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 and the revision petitioner is acquitted for the said offence. The bail bond of the revision petitioner stands cancelled and he is set at liberty.
sd/-
B.SUDHEENDRA KUMAR, JUDGE dl/21.1.2016 // True Copy // PA to Judge