IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 Crl.Rev.Pet.No. 164 of 2001() ------------------------------------------ CRA.86/1996 of ADDL.SESSIONS COURT, KOTTAYAM C.C. NO.36/1991 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------- C.RAMESAN, PROPRIETOR, BEST BAKERS, PUTHUPPALLY. BY ADVS.MR.V.V.NANDAGOPAL NAMBIAR MR.T.P.PRADEEP MR.GRASHIOUS KURIAKOSE MR.V.V.NANDAGOPAL NAMBIAR MR.T.P.PRADEEP RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------ 2. SRI. P.P.GOPINATHAN ACHARI, FOOD INSPECTOR, CHANGANACHERRY CIRCLE (PUTHUPPALLY PANCHAYAT). 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.I.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.695/2001 IN CRRP. NO.164/2001 DISMISSED 12/03/2010 SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE tss “CR” P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.R.P.No.164 of 2001. = = = = = = = = = = = = = Dated this the 12th day of March, 2010. O R D E R The revision petitioner was prosecuted by the first respondent Food Inspector, Changanacherry Circle in CC.No.36/1991 on the file of the Chief Judicial Magistrate, Kottayam, with an allegation that on 31.1.1991, when the first respondent inspected the bakery run by the revision petitioner in Building No.II/196 at Kumaramcode in Puthuppally Panchayat, the revision petitioner was not possessing a licence under the Prevention of Food Adulteration Act and hence committed offence under Section 7(iii) of the Prevention of Food Adulteration Act, 1954 read with rule 50(i) of the P.F.A. Rules framed thereunder. 2. After examining the first respondent as Pw1 Crl.R.P.No.164 of 2001. -: 2 :- under Sec.244 Crl.P.C. and marking documents, a charge was framed against the revision petitioner to which he pleaded not guilty when it was read over and explained under Sec.246 Crl.P.C. Hence he was sent for trial. On the side of the prosecution, Pws.1 to 6 were examined and Exts.P1 to P10 were marked. During the course of cross examination of Pws.1 and 4, Exts.D1 to D3 were marked. Ext.D1 is a licence obtained in Form No.V as contemplated under the PFA Rules for stock and sale of food articles. Ext.D2 is the copy of application for issue of licence in Form No.II under the PFA Rules for manufacture of food articles and Ext.D3 is the licence obtained thereon issued after the inspection by the first respondent. The revision petitioner took up a defence that he had obtained due licence. The learned Magistrate on appraisal of the evidence arrived a finding that Ext.D1 licence in Form No.V produced by the Crl.R.P.No.164 of 2001. -: 3 :- revision petitioner in defence is for stock and sale of food articles. It was further found that Ext.D3 licence in Form No.II for the manufacture of food articles was applied on 31.3.1991 as evidenced by Ext.D2 and was obtained on the very same day. In the above circumstance, the learned Magistrate found that as on the date of inspection by the first respondent, the revision petitioner had no licence in Form No.II for the manufacture of food articles. On such conclusion, he was found guilty for the offences alleged, convicted thereunder and sentenced to simple imprisonment for six months and a fine of Rs.1,000/- with a default clause for simple imprisonment for ten days. Though he preferred Crl.Appeal No.86/1996 before the Sessions Judge, Kottayam he was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Crl.R.P.No.164 of 2001. -: 4 :- revision petition was filed. 3. In the complaint it was alleged to the effect that when the first respondent inspected the shop, the revision petitioner was doing bakery business. 600 grms. of maida was purchased and it was sampled in accordance with the rules. However, there is no case for Pw1 that the revision petitioner was doing manufacturing of food articles in the same building. Whereas, in pre-charge stage, he gave evidence to the effect that the revision petitioner had not obtained PFA licence. He had no case that the revision petitioner was manufacturing food products and for that he had not obtained licence in Form No.II, which is a licence for the manufacture of food products. As a result, no charge was also framed for not obtaining licence in Form No.II. The charge was to the effect that the revision petitioner had no licence, without specifying whether it is in Crl.R.P.No.164 of 2001. -: 5 :- Form No.II or V. During cross examination when confronted with Ext.D1, it was admitted that it is a PFA licence. Even thereafter also it was not stated that the revision petitioner was engaged in manufacturing process or that the licence intended was one in Form No.II. The finding of the courts below that there was no licence in Form No.II for manufacturing is without any specific pleading and charge, that too without supporting evidence to the effect that the revision petitioner had been manufacturing food products in the building which was inspected by the first respondent. In the above circumstance, I find that the learned Magistrate as well as the Sessions Judge had gone wrong in finding that the revision petitioner is guilty for not obtaining licence in Form No.II for the manufacture of food products. When the statute mandates separate licences, one for manufacture in Crl.R.P.No.164 of 2001. -: 6 :- Form No.II and another for stock and sale in Form No.V and the prosecution being for want of licence, first respondent would have specified in the complaint as well as in evidence, as to what all activities, the revision petitioner had been doing in the premises and which of the licence he had not obtained. By simply stating that the revision petitioner had been doing bakery business, it could not presumed that the revision petitioner had been manufacturing food articles. When the allegation in the complaint and evidence are vague, always, the benefit shall go to the accused, here in this case, the revision petitioner. Since there is no mention in the complaint as well as in the charge sheet that there was no licence in Form No.II, the conviction and sentence under challenge are not sustainable for want of allegation and evidence and are liable to be set aside. Crl.R.P.No.164 of 2001. -: 7 :- In the result, the revision petition is allowed. While setting aside the conviction and sentence under challenge, the revision petitioner would stand acquitted and set at liberty. The bail bond, if any, executed by the revision petitioner shall stand cancelled and fine, if any, deposited shall be refunded to the revision petitioner. P.S.GOPINATHAN (Judge) Kvs/-