IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.Rev.Pet.No. 768 of 2001() ---------------------------------------- CRA.49/1998 of ADDL.SESSIONS COURT, NORTH PARAVUR CC.694/1994 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PERUMBAVOOR .................... PETITIONER/APPELLANT/1ST ACCUSED: ---------------------------------------------------------- K.V. BABU, MANAGER, NEW HOTEL AMBADI, PERUMBAVOOR. BY ADV. MR.SANTHOSH SUBRAMANIAN RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------- 1. FOOD INSPECTOR. MOBILE VIGILANCE SQUAD, KAKKANAD, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR.C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 768 of 2001 ORDER ON CRL.MP. NO.3606/2001 IN CRRP NO.768/2001 DISMISSED 30/10/2009. SD/- P.Q.BARKATH ALI, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.768 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2009 ORDER Revision petitioner is the first accused in C.C.No.694/1994 of Judicial First Class Magistrate Court, Perumbavoor and Crl.Appeal No.49/1998 of Additional Sessions Court, North Paravur. He was convicted under Sections 2(ia) (a) (m), 7(i) , 16(1)(a)(i)(ii) (e) of PFA Act and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for two months each . The conviction and sentence of the revision petitioner were confirmed in appeal by the learned Sessions Judge. Now the first accused has come up in revision challenging his conviction and sentence. 2. The case of the complainant/first respondent, who is the Food Inspector, Mobile Vigilance Squad, Kakkanad as testified by him as PW1 and as detailed in the complaint in brief is this : First respondent PW1 purchased curd made of mixed milk from the 'New Hotel Ambadi' at 9 AM on 24/03/1994. The first accused is Crl.R.P..No.768/01 Page numbers the Manager and the second accused is the licencee of the said hotel. The public Analyst has reported in Ext.P10 that the sample does not conform to the standards prescribed for curd prepared from mixed milk and therefore it is adulterated. On the basis of this report, first respondent complainant has filed a complaint against the accused persons. 3. The accused persons when appeared before the trial court , copies of documents relied on by the complainant were furnished to them and the complainant was examined as PW1. After preliminary arguments, charges were framed against the accused under Sections 2 (ia) (m), 7(i) , 16(1)(a)(i)(iii) of PFA Act to which they pleaded not guilty. Thereafter PW1 was recalled and further examined and PW2 was examined. Exts.P1 to P13 were marked on the side of the complainant. When questioned under Section 313 Cr.P.C., the revision petitioners denied having committed any offence. No defence evidence was adduced. The trial court on an appreciation of evidence found the accused persons guilty of the offences alleged against them, convicted them thereunder and sentenced them as aforesaid which is confirmed Crl.R.P..No.768/01 Page numbers in appeal. Now the first accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration ; 1) Whether the conviction of the revision petitioner by the trial court under Sections 2(ia) (a)(m), 7(i) , 16(1)(a)(i)(ii)(e) of PFA Act which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 5. Counsel for the revision petitioner argued that in view of the discrepancies in the report of the public analyst - Ext.P10 and report of the Central Food Laboratory Ext.P13 the benefit of doubt should be given to be accused persons. I find some force in the above contention. The allegation against the accused persons is that the revision petitioner sold adulterated curd. Appendix A -11.02.04 of the PFA Rules states that curd shall have the same minimum percentage of Crl.R.P..No.768/01 Page numbers milk fat and milk solids (non fat) as the milk from which it is prepared. Appendix A-11.01.11 mandates that the standard for the different classes and designations of milk . Appendix A.11.02 prescribes the minimum all India standard for mixed milk as 4.5% , milk fat and milk solids (non fat) as 8.5%. In Ext.P10 it was found that the sample contained milk fat of 6.1% and milk solids(non fat) of 7.7%. At the same time, Central Food Laboratory in Ext.P13 found that the sample contained 4.1% milk fat and 9.2% milk solids ( non fat). In a similar matter, the Apex Court has held in Administrator of the city of Nagpur v. Laxman and another ( 1995 SCC(cri) 354) that the total solids as indicated is more than what is prescribed for mixed milk and refused to interfere with the acquittal of the accused. 6. In the light of the principles laid down in the above decision, in the present case total solids are 13.8% as per the report of the public analyst and 13.3% as per the report of the central food laboratory. The total solid fat prescribed under the PFA Act is only 13%. Therefore accepting the principles laid down in the above decision, I am giving the benefit of doubt to the revision petitioners and Crl.R.P..No.768/01 Page numbers acquitting them of the offences levelled against them. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Sections 2(ia) (m) (a), 7(i) , 16(1)(a)(i) (ii)(e) of PFA Act is set aside. He is acquitted of the said charge. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P..No.768/01 Page numbers