IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 Crl.Rev.Pet.No. 439 of 2002(B) ------------------------------ CRA.176/1997 of SESSIONS COURT, KASARAGOD STC.76/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVISION PETITIONER: APPELLANT:ACCUSED: ------------------------------------------------------------------------ MUHAMMED KUNHU S/O.ABDULLA,PERUMKULAM, NILESHWAR,NILESHWAR P.O. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS: RESPONDENTS:ACCUSED 2 AND 3: ------------------------------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY FOOD INSPECTOR,KANHANGAD CIRCLE THROUGH PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. P.FAIZAL S/O.ABDUL KHADER,PADANNA, P.O.PADANNA. 3. M/S.D.VENKATESH BHAT,GENERAL MERCHANTS, KOTTACHERRY,KANHANGAD. BY PUBLIC PROSECUTOR SRI. SALIM- R1 BY ADV. SRI.SUBHASH CYRIAC- R3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss A.K.BASHEER, J. ------------------------------------------------- Crl.Rev.Petition No.439 of 2002 -------------------------------------------------- Dated this the 23rd day of May, 2008 O R D E R Petitioner and two others were sought to be prosecuted by the Food Inspector, Kanhangad Circle for the offences punishable under Sections 2(1a)(f), 7(1) read with Section 16(1A) (1) of the Prevention of Food Adulteration Act, 1954. The Food Inspector had allegedly purchased 750 gms of (Toor) from the petitioner who was stated to be the salesman in the Grocery shop owned by accused No.2 (he has been absconding and he did not face trial). It was further alleged by the Food Inspector that the food article in question was purchased by accused No.2 from accused No.3. 2. The trial court found the petitioner and accused No.3, who faced trial, guilty, and they were accordingly convicted and sentenced to undergo Rigorous Imprisonment for six months each and to pay a fine of Rs.1,000/- each. In appeal, the Sessions Court set aside the conviction and sentence passed against accused No.3, while confirming the order against the petitioner. It is in the above Crl.R.P.No.439/2002 - 2 - circumstances that the petitioner has preferred this petition challenging the concurrent order of conviction and sentence against him. 3. The case of the Food Inspector was that he had visited the grocery shop owned and run by accused No.2 at door No.C.P.111/551 in ward No.3 of Cheruvathur Panchayat at 12 noon on October 27, 1995. At the time of his visit accused No.1 was in- charge of the shop. The Food Inspector purchased 750 gms of (toor) out of 15 Kgms exhibited for sale along with other food articles meant for human consumption. The sale was effected after giving Form VI notice and completing other statutory formalities. It is not necessary to refer the statutory formalities followed by the Food Inspector. Suffice it to say that the sample of the article sent for analysis was found to be adulterated by the Regional Laboratory in Ext.P14 report. The Central Laboratory also later found that the sample did not conform to the standard prescribed in the Act and the Rules. Crl.R.P.No.439/2002 - 3 - 4. The trial court considered the oral testimonies of PW1 to PW4 and also the documentary evidence consisting of Exts.P1 to P22. The court found that the prosecution had satisfactorily proved the case against accused Nos.1 and 3 who faced trial as mentioned earlier. The two accused were found guilty and convicted and sentenced. The sessions court, however, set aside the conviction and sentence passed against accused No.3 while confirming the order of conviction and sentence passed against the petitioner. 5. It is contended by learned counsel for the petitioner that the courts below are not justified in holding the petitioner guilty in the absence of any satisfactory evidence to show that he was the salesman of the shop in question at the relevant point of time. He further submits that the petitioner had specifically contended that he had nothing to do with the business in the Grocery shop. He points out that there was discrepancy in the description of the name and address of the owner/licencee of the shop. 6. It is further contended by the learned counsel that the report of the Central Laboratory ought not to have been relied on, Crl.R.P.No.439/2002 - 4 - apparently for the reason that the article that was allegedly analysed by the Central Laboratory was not the one which had been allegedly purchased by the Food Inspector. There is considerable force in the above contention raised by the petitioner. It is the consisting case of the Food Inspector that he had purchased (Toor) from the shop of accused No.2. Form VI notice and other documents also indicate so. In Ext.P14 report of the Regional Public Analyst the article was clearly described as . But in Ext.P17 report of the Central Food Laboratory the article which was received for analysis is described thus: Appearance :- whole, black grains of udid, weevilled damaged grains present, living and dead insects present in abundance. (yellow gram) in Hindi is “Arhar”. Udid is black gram ( ). It may be true that black gram and yellow gram may fall in the category of food grain falling under Appendix 1806 but they are undoubtedly two different articles of food. Therefore, the report of the Central Laboratory on the face of it, particularly in view of the above glaring discrepancy, cannot be relied on to find the Crl.R.P.No.439/2002 - 5 - petitioner guilty. 7. There is yet another aspect of the matter. In the report of the Regional Analytical Laboratory (Ext.P14) moisture was found to be 14.9 percentage, whereas in Ext.P17 report of the Central Laboratory it was 11 percentage. While percentage of weevilled grains in Ext.P14 was 9.2 percentage by count; it was 45 percentage in Ext.P17. Uric Acid in Ext.P14 was 600.0 mg per kg, whereas it was 10,000 mg/kg in Ext.P17. Relying on the decision of their Lordships of the Hon'ble Supreme Court in Municipal Corporation Delhi v. Kacheroo Mal (1976) 1 SCC 412 it is contended by the learned counsel that the Analyst of the Central Food Laboratory ought not to have certified that the food article was not fit for human consumption. It cannot be said that the offence under the Act had been attracted, the learned counsel contends. Having regard to the peculiar facts and circumstances of the case, I am of the view that the petitioner is entitled to get the benefit of doubt, especially in the absence of any material to show Crl.R.P.No.439/2002 - 6 - that he was working in the Grocery shop in question as salesman and also in view of the apparent defect in Ext.P17 report. Therefore, the order of conviction and sentence passed against the petitioner is set aside and he is acquitted. Revision petition is allowed. A.K. BASHEER, JUDGE skr