IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 Crl.Rev.Pet.No. 671 of 2000(C) ------------------------------ CRA.177/1998 of SESSIONS COURT, THRISSUR ST.2958/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------- V.V.PATHROSE, S/O VARAPPAN, VADAKKAN HOUSE, KANJIRAKODE, ERUMAPETTY, PANCHAYAT BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S)/RESPONDENTS --------------- 1. THE FOOD INSPECTOR, WADAKKANCHERRY CIRCLE, WADAKKANCHERRY. 2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM. PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.671/2000 -------------------- Dated this the 17th day of March, 2009 ORDER The first accused in S.T.No.2958/95 on the files of the Judicial Magistrate of First Class, Kunnamkulam, who was convicted for the offence punishable under Section 16(i)(a) read with Section 7(i) of the Prevention of Food Adulteration Act, is the petitioner in this Criminal Revision Petition. The case of the complainant, the Food Inspector, was that on 28.7.1993, PW1 purchased 900 ml of synthetic vinegar from a shop bearing No.X/80 situated at Kanjirakode in Erumapetty panchayat run under the name and style 'Kairaly Products'. A1 was present at the shop and he sold the same to the Food Inspector after complying with the formalities, as required in the PFA Act and the Rules. PW1 took the sample and sent one part of the same to the Public Analyst. Public Analyst in his report opined that the sample did not contain synthetic vinegar upto the prescribed standard and that the same is therefore, adulterated. On receipt of Form-III report from the Public Analyst, PW1 filed a complaint. A1, the revision petitioner herein, was arrayed as seller and A2 his brother was arrayed as a licensee. Crl.R.P.671/2000 2 2. It seems that A2 was absconding and therefore, the case against him was split up and re-filed. Thus the petitioner herein alone faced trial. 3. It further seems that the first accused filed an application under Section 13(2) of the PFA Act for sending the sample to the Central Food Laboratory. The trial Court allowed the petition and directed the sample to be sent to the CFL. Report from the CFL also shows that the sample is adulterated. 4. Defence taken up by the first accused was to the effect that he was neither a licensee nor the seller. A copy of the licence was available in the shop premises and it was shown to the Food Inspector. The premises from where the sample was taken or purchased were not the premises used for conducting sale. It was where the synthetic vinegar was seized and it was a unit run by the second accused, brother of the first accused. First accused had come to visit his mother who was staying with his brother and when the Food Inspector came to the premises, he found the first accused Crl.R.P.671/2000 3 therein. Second accused was absent. First accused was asked for a sample and he gave the same. He has no knowledge of the business and no association with the same. This is the gist of the stand taken by him as discernible from the cross-examination of the complainant's witnesses and from the 313 statement given by the accused. 5. The trial Court found that since the sample was adulterated and there was a sale, first accused is guilty of the offence alleged and therefore, convicted him for the offence punishable under Section 16(i)(a) read with Section 7(i) of the PFA Act. He was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- with a default sentence of three months’ simple imprisonment. The conviction and sentence were confirmed by the appellate Court and hence this revision. 6. On hearing the revision for sometime, and finding that even according to the prosecution, it was the second accused who was the licensee, I requested the learned Public Prosecutor to get instructions as to the status of the case re-filed against the second accused. Public Prosecutor Crl.R.P.671/2000 4 submits that the second accused has thereafter, surrendered before the Court and he has been enlarged on bail and that steps have now been taken to conduct a trial as against the second accused, the licensee. 7. Normally, accused 1 and 2 should have faced trial together. I take note of the prosecution case that the second accused is a licensee. I also take note of the contention of the first accused that he was not in any manner associated with the business run by the second accused. I am of the view that adequate evidence has not been let in, in this regard before the Court below. The Courts below should consider the contention of the first accused that he had merely come to the shop and the sale effected by him is not a voluntary sale. In this regard, first accused may lead in evidence to show that he was neither a salesman nor in any manner associated with the business conducted by the second accused. In these circumstances, I am of the view that the first accused should also be given an opportunity for a fresh trial, along with the second accused. Crl.R.P.671/2000 5 8. Accordingly, the order of the trial Court as affirmed by the appellate Court is set aside and the conviction and sentence of the first accused is set aside. Learned Public Prosecutor submits that the case against the second accused is now posted to 4.4.2009. But the trial Court finds it difficult to proceed with the trial because the records are before this Court. Accordingly, registry shall re-transmit the records back to the trial Court and the learned Magistrate shall conduct a fresh trial of the case as against both the accused. Parties shall appear before the Court below on 4.4.2009. Since the offence alleged relates to a transaction which had taken place as early as on 28.7.1993, learned Magistrate shall dispose of the matter, as expeditiously as possible, within a period of four months from April, 2009, if possible. Revision petition is allowed by way of remand. V.GIRI, Judge mrcs