IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 268 of 2002()
1. E.P.UNNEN, S/O.SAIDALI,
... Petitioner
Vs
1. FOOD INSPECTOR,ALIPARAMBA PANCHAYATH,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY ITS
For Petitioner :SRI.K.P.MUJEEB
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :27/03/2009
O R D E R
R.BASANT, J
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Crl.R.P. No.268 of 2002
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Dated this the 27th day of March, 2009
ORDER
This revision petition is directed against a concurrent
verdict of guilty, conviction and sentence in a prosecution under
the provisions of the Prevention of Food Adulteration Act
(hereinafter referred to as the ‘Act’). The petitioner/accused has
been found guilty, convicted and sentenced under Section 2(ia)
(m) and Section 7 (i) r/w Section 16(1) (a)(i) of the Act. He faces
a sentence of S.I for a period of 10 months and to pay a fine of
Rs.2,000/- and in default to undergo S.I for a further period of 3
months.
2. The prosecution alleged that the petitioner herein had
sold the samples of synthetic vinegar to the Food Inspector, PW2
on 06.04.93 at the shop of the petitioner. The said sample on
analysis was found to be adulterated and did not conform to the
standards prescribed for synthetic vinegar in A.20.01 of the
appendix B to the P.F.A Rules.
3. Cognizance was taken on the basis of a complaint filed
by the Food Inspector. Accused entered appearance and denied
the offence alleged against him. Thereupon the prosecution
examined PWs 1 to 5 and proved Exts.P1 to P21. The accused
Crl.R.P. No.268 of 2002 2
pleaded not guilty. He denied the circumstances which
appeared in evidence and which were put to him. In 313
examination, he appears to have taken a stand that while he was
not available in his shop, someone had delivered bottles of
vinegar and when he returned, the Food Inspector demanded
sale of such bottles and it was accordingly that the sampling was
done. No defence witness was examined. But Ext.D1, a gazette
notification was proved.
4. The courts below concurrently came to the conclusion
that the appellant had succeeded in establishing all ingredients
of the offence punishable under Section 16(1) (a)(i) of the Act.
Accordingly they proceeded to pass the impugned judgments.
5. The petitioner claims to be aggrieved by the
impugned concurrent judgments. Called upon to explain the
nature of the challenge which the petitioner/accused wants to
mount against the impugned concurrent judgments, the learned
counsel for the petitioner raises various contentions.
6. First of all it is contended that the procedure for
sampling adopted by the Food Inspector is not correct. Several
bottles of synthetic vinegar were available in the shop and from
them, 3 separate bottles were purchased as samples. These
bottles were not opened. The contents of the samples were not
Crl.R.P. No.268 of 2002 3
mixed up and made homogeneous. This, it is contended,
amounts to violation of the provisions of the Food Adulteration
Act and Rules. No proper sampling has been done. The article
purchased has not been made homogeneous before it was
divided into 3 and samples drawn. For these reasons, the
prosecution must fail, it is contended.
7. I find no merit in this contention. Both courts have
adverted to Rule 22 A of the P.F.A Rules. That is an enabling
provision which permits the Food Inspector to purchase the
contents of one or more of such containers as required to satisfy
Rule 22. Mahazar prepared by the Food Inspector shows
unmistakably and the evidence of Food Inspector as PW2
confirms that there were identical label declarations for all the
bottles and this is a clear answer to the contention raised that
there has been no proper sampling. Rule 22 A permits such
sampling. All necessary circumstances to attract Rule 22 A have
been satisfactorily established and in these circumstances I find
no merit in the contention that the sampling done is not proper.
8. It is then contended that after purchasing the bottles,
wax sealing has not been done. It is then contended that
because there was no such wax sealing, there was possibility of
evaporation and consequent alteration in the contents of the
Crl.R.P. No.268 of 2002 4
bottles. I find no merit in this contention at all. The evidence of
the Food Inspector shows that it was a sealed bottle containing
synthetic vinegar that was purchased by him. According to him,
he found no reasons to further seal it. The report of the public
analyst shows that the public analyst found the sample to be
untampered and the seal to be intact. In these circumstances
the contentions that there has been no proper sampling,
consequently loss of contents by evaporation is possible and
further that the report of analysis submitted by the public
analyst cannot be reckoned as valid cannot be accepted. The
evidence clearly shows that sample was purchased in sealed
bottles and consequently the grievance that the Food Inspector
did not seal it further is found to be without any merit.
9. There is a vague contention that the article is an
article of primary food and therefore proviso to Section 2(ia)(m)
would apply. I am unable to understand the basis of this
contention. Primary food is defined in Section 2(xiia) of the Act
and an article of food, to be called an article of primary food,
must be a produce of agriculture or horticulture in its natural
form. Synthetic vinegar cannot by any stretch of imagination be
held to be a produce of agriculture or horticulture in its natural
form. This contention must also hence fail.
Crl.R.P. No.268 of 2002 5
10. A contention is urged that the petitioner is entitled to
succeed in his defence under Section 19(2) of the Act. Firstly
such a defence is not raised before the courts below. In fact, the
crucial answer given in 313 examination clearly shows that the
petitioner had no intention to contend that he had purchased the
article from any duly licenced manufacturer. That is evident
from the contention raised that some persons had delivered
articles in his absence and they were hence available in the
shop. A contention under Section 19 of the Act has not been
raised nor is there material to substantiate such a contention. In
fact the totality of circumstances even suggests that either the
petitioner must be the manufacturer or he is attempting to shield
such manufacturer. In these circumstances the plea raised
before me now that the petitioner is entitled to succeed under
Section 19(2) of the Act cannot be accepted. Of course, I note
that identical label declarations are there and the name of an
establishment is shown in such declaration. In the absence of a
specific contention on the part of the petitioner that he had
purchased the articles from such establishment specified in the
identical label declaration on the sample bottles, the petitioner
cannot be heard to raise a grievance now that he is entitled to a
Crl.R.P. No.268 of 2002 6
defence under Section 19(2) of the Act and that the same has not
been considered by the courts below.
11. The learned counsel for the petitioner contends that
the right of the accused under Section 13(2) of the Act has been
offended inasmuch as there was no precise specification of the
court before which the complaint was filed. In this aspect, the
counsel relies on Ext.D1 notification. The intimation under
Section 13(2) of the Act only shows that a complaint was filed
before the Judicial Magistrate of the First Class, Perinthalmanna.
At the time when the sample was taken, there was only one
Judicial Magistrate of the First Class at Perinthalmanna. Under
Ext.D1, another Magistrate court was constituted at
Perinthalmanna. Ext.D1 notification is dated 15.06.93; whereas
the notice under Section 13(2) of the Act was served on the
petitioner on 19.06.2003. The courts below had considered this.
But they have come to the conclusion that the right of the
accused under Section 13(2) of the Act cannot be said to be
prejudiced by the non specification in the notice as to whether
the complaint was filed before the newly constituted court or the
court that was existent earlier. I concur with the conclusions of
the courts below. There was only one court of the Judicial
Magistrate of the First Court till 15.06.1993 and the mere fact
Crl.R.P. No.268 of 2002 7
that it was not specified in the notice whether the complaint was
filed before the Judicial Magistrate of the First Class-I or II at
Perinthalmanna cannot in the facts and circumstances of this
case be held to have prejudicially affected the petitioner or
frustrated his right under Section 13(2) of the Act. Whether the
right under Section 13(2) f the Act has been frustrated or not is a
question of fact to be decided on the basis of the facts of each
case. The conduct of the petitioner is relevant. He did not make
any application before either court. Even after he entered
appearance, he did not make any application before the court
which had taken cognizance. I am satisfied that the courts
below are absolutely correct in coming to the conclusion that the
accused was not in any way prejudiced by the omission to specify
whether the complaint was filed before the first or the second
court.
12. I am satisfied, in these circumstances, that the
challenge on merits about the impugned order cannot succeed.
13. Lastly and finally it is contended that the sentence
imposed is excessive. Sentence of S.I for a period of 10 months
and a fine of Rs.2,000/- is imposed by the courts below. I am
satisfied that imposition of a mandatory minimum imprisonment
of 6 months is sufficient in the facts and circumstances of this
Crl.R.P. No.268 of 2002 8
case. The substantive sentence of imprisonment can hence be
reduced from S.I for a period of 10 months to S.I for a period of 6
months. This petition can succeed only to the above extent.
14. In the result:
i) This revision petition is allowed in part;
ii) The impugned judgments are upheld in all other
respects. But the substantive sentence of imprisonment is
reduced from S.I for a period of 10 months to S.I for a period of 6
months.
15. Petitioner shall appear and his sureties shall produce
him before the trial court on 02.05.09. Till then the sureties
shall not be executed. If the petitioner does not so appear,
needless to say, appropriate action under Section 446 Cr.P.C can
be initiated against the petitioner and his sureties by the learned
Magistrate.
(R.BASANT, JUDGE)
rtr/-