Kerala High CourtA. Jo;Y vs The Food Inspector on 8 January, 2016Author:B.Sudheendra KumarBench:B.Sudheendra KumarIN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                    THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

                 FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937

                                     Crl.Rev.Pet.No. 1771 of 2006 ( )
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                     CRL.A 375/2002 of II ADDL.D.C.,THIRUVANANTHAPURAM
                                  ST 1087/2001 of J.M.F.C.-II,ATTINGAL


REVISION PETITIONER/APPELLANT/ACCUSED::
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           A. JO;Y, S/O. K.M. ANIRUDHAN,
           `PITHRUSMARANA', THUNDILKADA, KILIMANOOR.

           BY ADV. SRI.K.RAMAKUMAR (SR.)

RESPONDENTS/COMPLAINANT & STATE::
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        1. THE FOOD INSPECTOR, KILIMANOOR.

        2. STATE OF KERALA, REPRESENTED BY THE
           PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

         BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH

           THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
            08-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:



                 B.SUDHEENDRA KUMAR, J.
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                      Crl.R.P. No.1771 of 2006
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              Dated this the 8th day of January 2016

                               O R D E RThe accused in S.T.No.1087 of 2001 on the files of the

Court of the Judicial Magistrate of First Class, Attingal

filed this      Revision Petition challenging the concurrent

finding of conviction and sentence passed                      by the courts

below under Section 16(1)(a)(i) read withSections 2(ix)(e)and7(i)and7(ii)of the Prevention of Food Adulteration

Act, 1954.2.     Heard.3.     The prosecution allegation can be briefly stated

thus:-On 15.1.2001 at 2 p.m., PW1, the Food Inspector,Crl.R.P.1771/2006: 2 :purchased three covers of modern mixtures, each cover

contained 50 gram each, from the shop of the accused.

After sampling as per the rules, one of the samples was

sent for analysis to the      Public Analyst.      The Public

Analyst filed Ext. P12 report stating that the sample was

not fried in coconut oil and therefore, the same was

misbranded as per the Act.        Thereafter, on the request of

the accused, the second sample was sent to the Central

Food Laboratory for analysis. Ext.P21 certificate of Central

Food Laboratory would show that the sample was not fried

in coconut oil and therefore, it was adulterated and

misbranded.4.       Before the trial Court, PW1 to PW3 were

examined and Exts. P1 to P21 were marked for theCrl.R.P.1771/2006: 3 :prosecution. DW1 was examined and Ext.D1 was marked

for the revision petitioner.5.     The courts below relying on Ext.P21 certificate

of the Central Food Laboratory held that the sample was

misbranded and adulterated. There is no other material

before the court to find that the sample was misbranded

and adulterated.6.     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 ofSection 23(1-A)(ee) and (hh) of thePFA Act, Ext. P21 cannot be

acted upon to hold that the food item purchased by the

Food Inspector was adulterated and misbranded.          TheCrl.R.P.1771/2006: 4 :learned counsel for the revision petitioner relied on the

decision of the Apex Court inPepsico 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 underSection 23(1-A) (ee) and (hh) of the

P.F.A. Act. Therefore, Ext. P21 report of analysis cannot

be acted upon to hold that the food item purchased in this

case was adulterated or misbranded in view of the decision

of the Apex court inPepsico India Holdings(supra).It was

held by the Supreme Court inPepsico India Holdings(supra) that since the Laboratories were not notified and theCrl.R.P.1771/2006: 5 :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 inGopalakrishnan v. Food Inspector[2013 (3) KLT 455], the court relied on the decision of the

Supreme Court inPepsico        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       affirmedthe said decision,

submitted by the learned counsel for the petitioner and the

learned Public Prosecutor.Even otherwise, in view of the

decision inPepsico   India Holdings(supra), the

conviction in this case cannot be sustained as no laboratoryCrl.R.P.1771/2006: 6 :was      notified and no validated method of analysis was

specified as mandated underSection 23(1-A) (ee) and (hh)

of thePrevention of Food Adulteration Act, 1954.In the result, this Revision Petition stands allowed

setting aside the conviction and sentence passed by the

courts below underSection 16(1)(a)(i)read withSections

2(ix)(e)and7(i)and7(ii)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/.8.1.2016

                                                 // True Copy //

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