IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 247 of 1996()
1. K.BALAKRISHNAN
... Petitioner
Vs
1. FOOD INSPECTOR
... Respondent
For Petitioner :SRI.KURIAKOSE PETER.T.,ABRAHAM P.GEORGE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :27/05/2005
O R D E R
K.HEMA, J.
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CRl.R.P.No.247 OF 1996
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Dated this the 27th day of May, 2005
O R D E R
The petitioner is the first accused before the Judicial Magistrate of
First Class, Kuthuparamba in STC.314 of 1993. He was tried for offence
under Section 16(1) a (i) read with Section 7(i) and Section 2(ia) and (m)
of the Prevention of Food Adulteration Act, 1954 and Appendix B.(A.18.06)
to Rule 5 of the PFA Rules, 1955. He was convicted and sentenced to
undergo simple imprisonment for a period of six months and to pay a fine of
Rs.1000/- and in default of payment of fine the accused shall undergo
simple imprisonment for a further period of six months under Section 16(1)
a (i) read with Section 7(i) and Section 2(ia) and (m) of the Prevention of
Food Adulteration Act, 1954 and Appendix B.(A.18.06) to Rule 5 of the PFA
Rules, 1955. The said conviction and sentence were challenged in
appeal before the Session’s Court, Thalassery. But the appeal was
dismissed, confirming the conviction and sentence. Hence this revision.
2. The first respondent filed a complaint before lower court alleging
that petitioner sold adulterated green gram kept exposed for sale from the
grocery shop bearing No.IX/258, where petitioner was working as
salesman. PW1 took sample in accordance with the provisions of the PFA
Act, complied with the legal formalities and filed a complaint against
petitioner and owner of the shop as second accused, since sample was
found to be adulterated. To prove the prosecution case, PWs 1 to 7 were
examined and Exhibits P1 to P7 were marked. The accused examined DWs
1 and 2 and marked Exhibit D1.
3. Learned counsel for petitioner vehemently contended that the
conviction is bad for want of notice under Section 13(2) of the PFA Act.
According to the petitioner, he had not received any notice, as
contemplated under Section 13(2) of the PFA Act and hence he has lost a
valuable right to get the sample analysed by the Central Food Laboratory
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and this has caused prejudice to him and therefore he is entitled for an
acquittal. On going through the judgments of the courts below, I find that
this point was argued and the same contention has taken before the
lower courts also but those were rejected by the court. As per the
evidence, notice under Section 13(2) was issued by registered post
acknowledgment due to petitioner. Exhibit P25 is the cover addressed to
the petitioner and Exhibit P26 is the copy of the intimation under Section 13
(2). On a perusal of the same would show that the notice was issued under
Section 13(2) of the PFA Act to the petitioner. But it was returned with
the endorsement “addressee left, present address not known,
returned”.
4. It is true that Exhibit P25 was not actually served. Hence it is
strenuously contended that in view of the non-service of notice under
Section 13(2), petitioner cannot be convicted. Section 13(2) of the PFA
Act is mandatory and hence the non compliance vitiated the trial is the
argument. Learned counsel for the petitioner also placed reliance upon the
decision reported in Satya Narain Gupta v. Amarjit (1991 FAJ 182),
Bidyadhar Jena v. State of Orissa (1991 Crl.LJ 2700) and Food
Inspector, Guntur v. B.H.Rao (1994 Crl.LJ 1145) to argue that non
service of notice under Section 13(2) is a serious illegality and hence the
petitioner is to be acquitted on this ground itself.
5. As against this, the lower court has placed reliance upon a
Division Bench decision of this Court reported in Food Inspector v.
Karingarappully Coop. M.S. Society Ltd. (1986 KLT 174). As per the
dictum laid down in the above decision, it is clear that non-service of notice
by itself will not be sufficient to acquit the accused. It is laid down that
Section 13(2) of the PFA Act is not mandatory, but only directory. The
non compliance of the said provision may cause serious prejudice to the
accused under certain circumstances. But, the accused can very well
apply to the court to send one of the samples to the Central Food
CRL.R.P.247/96 3
Laboratory which is available in court. The report of the Central Food
Laboratory supersedes the public analysis report and if a sample is found
to be unfit for analysis by the Central Food Laboratory, it can be said that
there is some prejudice caused to the accused by the delay on account of
the non compliance of Section 13(2) of the PFA Act. But if he restrains
from making any such application to the court to send the sample to the
Central Food Laboratory, he cannot successfully contend that there has been
prejudice merely because of non compliance or defective compliance with
the provisions of law.
6. The petitioner has not taken any step to send the sample available
in court to the Central Food Laboratory. He has not filed any application
for the same. In the above circumstances, it cannot be said that the non
service of notice under Section 13(2) would prejudice the accused and
that he is entitled for acquittal. The mere non compliance of Section 13
(2) is not a ground to acquit the accused. In the light of the Division Bench
decision of this Court and on the facts and circumstance of this case, I find
that non compliance of Section 13(2) of the PFA Act has not vitiated the
trial and the petitioner cannot be acquitted on that ground.
7. Learned counsel for petitioner also contended that petitioner was
not the salesman of the shop from which the sample was taken. According
to the petitioner, he was working in a nearby hotel as a supplier and the
Food Inspector wanted him to sign some papers to ensure sampling and he
had signed in some papers. But he has nothing to do or sampling. DWs 1
and 2 were examined and Exhibit D1 was marked. Both the courts have
considered the evidence of these witnesses in detail and came to the
conclusion that the case set up by the petitioner cannot be accepted. The
evidence of the Food Inspector was found reliable on this point and the
court entered a finding against the petitioner. On going through the
records, I do not find any reason to reverse the concurrent findings of the
courts below on this point. I am satisfied that both the courts below have
CRL.R.P.247/96 4
considered the question in the right perspective and there is nothing on
record to come to a different finding. No other point was argued in this
revision.
In the result, this petition is dismissed.
K.HEMA, JUDGE
vgs.
CRL.R.P.247/96 5
K.HEMA, J.
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CRL.R.P.NO.247 OF 1996
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O R D E R
27.3.2005
