IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 28TH DAY OF AUGUST 2009/6TH BHADRA 1931 CRRP.No. 903 of 2001 -------------------- CRA.15/1996 of ADDL.SESSIONS COURT, N.PARAVUR ST.1818/1991 of J.M.F.C.-I, N.PARAVUR ..... REVISION PETITIONER/APPELLANT/ACCUSED: K.K.MOIDEEN, S/O KOYAKUTTY, KALAPURAKKAL HOUSE, KAKKAT, BINANIPURAM P.O., PARUR TALUK. BY ADVS.SRI.SANTHOSH SUBRAMANIAN SRI.SHEJI P.ABRAHAM RESPONDENTS/RESPONDENTS/COMPLAINANT: 1. FOOD INSPECTOR, ANGAMALY CIRCLE, ANGAMALY. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-08-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.Hema, J. --------------------------- Crl.R.P.No.903 of 2001 ---------------------------- Dated this the 28th day of August, 2009 ORDER The revision petitioner was convicted by the Judicial Magistrate of First Class for offence under Section 7(1) read with Section 16(1)(a) (i) of the Prevention of Food Adulteration Act (for short, 'the Act') and under Section 7(iii) and (v) read with Section 16(1)(a)(ii) of the Act, 1954 and Rule 50(1) of Prevention of Food Adulteration Rules, 1955 (for short 'the Rules'). 2. The revision petitioner was sentenced thereunder to undergo simple imprisonment for six months each and also to pay a fine of `.1,000/- each and in default of which to undergo simple imprisonment for a further period of one month each under Section 16(1)(a)(i) read with Section 2(ia)(a) and (m) and Section 7(1) of the Act and under Section 16(1)(a)(ii) read with Section 7(iii) and (v) of the Act and Rule 50(1) of the Rules. 3. In appeal, the conviction and sentence were confirmed by the Sessions Court. This revision is filed challenging the said conviction and sentence. Revision petitioner was first accused, who is the vendor. He is also the alleged owner of the business. Second accused is the CRRP 903/2001 2 manufacturer of the article sampled in this case. The case against second accused was split up, since he was absconding. The first accused alone stood trial. 4. According to prosecution, on 17.7.1997 at 1.30 p.m., PW1, the Food Inspector, visited the grocery shop run by petitioner and PW1 purchased one bottle of coconut vinegar (750 ml.) exhibited for sale from revision petitioner after giving Form VI notice and the price. Thereafter, the article was sampled in accordance with law and sent for chemical examination. On examination of one of the samples by the Public Analyst, it was found not to conform to the standard prescribed for coconut vinegar and hence, a complaint was launched, after complying with all legal formalities. Second accused was also brought into array of accused as the manufacturer. First accused got the other sample analysed through Central Food Laboratory and as per the said report also, the sample was adulterated. 5. PWs 1 to 5 were examined. Exhibits P1 to P17 and MO1 were marked on the side of prosecution. The accused marked Exhibits D1 to D3 on his side and also examined DWs 1 to 3. On an analysis of evidence, various contentions raised by revision petitioner were repelled by both the courts below. They concurrently held that revision petitioner was the owner of the shop from where the article was purchased and that he himself had sold the article to PW1. It was also CRRP 903/2001 3 held that he did not have the licence at the relevant time. The coconut vinegar sold by petitioner to PW1 was found not to conform to the standard prescribed for the article. 6. Learned counsel for revision petitioner argued that revision petitioner is entitled to the benefit under Section 19(2) of the Act and he cannot be convicted for the offences. As per evidence and complaint, the food article sampled in this case was manufactured by the second accused. As per Section 19(2) of the Act, vendor shall not be deemed to have committed an offence pertaining to sale of adulterated food if he proves certain conditions laid down in the said section. As per sub-section (2) of Section 19, vendor has to prove either that he has purchased the article of food from a duly licensed manufacturer, distributor or dealer, if licence is prescribed for sale of such article or in any other case, he has written warranty from any manufacturer, distributor or dealer. 7. Admittedly, coconut vinegar is a food article, which requires licence for selling and hence, the case falls under Section 19(2)(a)(i) of the Act. Petitioner has absolutely no case that second accused, from whom he allegedly purchased the article, is a duly licensed manufacturer, distributor or dealer. He failed to prove that second accused, who is the alleged manufacturer, is a duly licensed manufacturer and therefore, he cannot claim benefit under Section 19 CRRP 903/2001 4 (2) of the Act. A decision was cited by learned counsel for revision petitioner, which is reported in P.Unnikrishnan v. Food Inspector (1995 SCC (Crl.) 853), but, it was a case falling under Section 19(2) (a)(ii) and not under Section 19(2)(a)(i). Therefore, the dictum laid down in the decision cited above will not apply to the facts of this Case. Learned counsel also relied on the decision reported in Hamsa v. Food Inspector (2005 (2) KLT 998) in support of his contention, which was rendered following the decision cited above. Both these decisions will not apply to the facts of this case. 8. The next point argued by learned defence counsel is that there is no violation of Rule 50 of the Rules by petitioner. His case is that petitioner is not the owner of the business and hence he cannot be convicted for violation of Rule 50. He submitted that as per evidence of PW1, a boy was present in the shop and according to accused, the sample was taken from the boy. Since no adult persons were available, petitioner was sent for and when he reached the place he was made to sign Form VI notice. He has absolutely nothing to do with the shop, except that he is the brother of the actual owner, it is argued. 9. On going through the judgment, I find that the above contentions are rejected in the light of the evidence. Courts below have relied on certain admissions made by petitioner in the petition filed by him, which will indicate that he is the vendor. I do not find any CRRP 903/2001 5 perversity in such findings and merely because a boy was present at the time of sampling, petitioner's contention that he is not the owner cannot be accepted, as rightly held by both the courts below. In such circumstances, the allegation made by the Food Inspector that petitioner is the owner has to be accepted and hence, petitioner has to take licence under Rule 50(1) of the Rules. As per evidence, he has not taken any licence. There is also no reason to interfere with such concurrent findings that petitioner has sold the article without taking a licence for sale. 10. The next argument is that there is violation of Rule 22A of the Rules and accused is prejudiced because of the violation. A sealed container having 750ml. of vinegar was taken as sample by PW1 and it was divided into three parts, out of which one sample was sent to Public Analyst and another to Central Food Laboratory. Both the reports would reveal that the article was not conforming to the standards prescribed for coconut vinegar. But, learned counsel for accused would argue that as per Rule 22A of the Rules, the Food Inspector ought to have taken three samples containing 750ml. each which were present in the shop, as admitted by PW1. The sealed container ought to have been opened by the Food Inspector, since it is likely that accused will be prejudiced by such opening. CRRP 903/2001 6 11. Both the courts below considered the above argument and it was held that there was no violation of Rule 22A of the Rules. The decision reported in Food Inspector v. Kodungallur S.S. Bank Ltd. (1998 (4) KLT 27) was relied on. But, learned Public Prosecutor submitted that in the light of the decision reported in State of Punjab v. Devinder Kumar (1983 SCC (Crl.) 501), Rule 22A does not prohibit taking sample after opening the sealed container, where the sealed container contains a quantity larger than what is required for the purpose of Section 11 read with Rule 22. On going through the above decision, it is clear that opening of a sealed container and dividing the same into three for purposes of sample will not violate Rule 22A. 12. It is well settled that even if there is violation of Rule 22A, it will not be fatal to prosecution. It was held in Food Inspector v. Abooty (1989 (2) KLT 578 (FB)) that if there is violation of Rule 22A, accused has to establish that violation was prejudicial to him and then alone he will be entitled for any benefit. Learned counsel for revision petitioner submitted that prejudice was caused to accused since article is coconut vinegar which contains acetic acid. It is an acid that is likely to evaporate once the sealed container is opened. The variation which occurred due to evaporation will adversely affect the nature of the article and also result of analysis, it is argued. CRRP 903/2001 7 13. Learned counsel for petitioner placed reliance upon a passage from the Book “The Chemical Analysis of Foods and Food Production” written by Morris B.Jacobs, which reads as follows: “In general, the analysis of vinegar proceeds along lines that have been previously detailed. Specific gravity, solids, ash, soluble ash, insoluble ash, alkalinity of ash and acidity may be estimated as usual. Fixed acids, which in the case of vinegar, is largely lactic acid and not malic acid, volatile acids and alcohol are determined as detailed by Herstein and Jacobs.” 14. On going through the above cited passage, I do not find anything therein to support defence plea. There is also nothing in the above extract to show that volatile acid, which may present in vinegar, would evaporate, if it is exposed. The extract only refers to nature of test, which has to be conducted in the case of analysis of vinegar. It is also to be noted that extract relates to vinegar and not to coconut vinegar, which are different in nature and quality. 15. Further, the matter relates to a scientific matter and it is not proper for this court to hold (merely based on the above passage) that volatile acid, if any, present in coconut vinegar, as stated by learned defence counsel, would evaporate or that such evaporation will affect the quality of the article, etc. It is well settled that if accused is relying upon any passage from an authority touching scientific matters, unless such passage is put to an expert, the court shall not rely upon the CRRP 903/2001 8 authority to come to any finding. 16. Therefore, in the absence of examination of an expert and without the relevant passage being put to such expert, I am not inclined to accept the argument to come to a finding that the quality of article sampled in this case was affected since the container was opened, as argued. In short, there is no material on record to suggest that any prejudice was caused to accused and hence, even if it is accepted that there is violation of Rule 22A of the Rules, accused cannot be acquitted on the ground of such violation. 17. On going through the judgments and evidence on record, I find that conviction entered against the accused for sale of adulterated article and violation of Rule 50(1) is only sustainable. However, learned defence counsel argued that sentence imposed against revision petitioner is not in accordance with law. It was submitted that violation of Rule 50 will call for only a maximum punishment which may extend to three months, as per second proviso to Section 16(1) of the Act. He has also cited a decision reported in Chaturi v. State of U.P. (1981 FAJ 1), in support of his argument. 18. I have gone through Section 16 of the Act. A reading of the said Section would go to show that act of sale of adulterated food is dealt with in Section 16(1)(a) under two separate heads, depending upon the nature of the article involved. The proviso to Section 16(1) CRRP 903/2001 9 would apply to cases falling under Sections 16(1)(a)(i) and 16(1)(a)(ii) under different situations. The second proviso to Section 16(1), which is relied upon by learned defence counsel, will apply only to cases falling under Section 16(1)(a)(ii). In cases relating to food article which will fall under Section 16(1)(a)(ii), second proviso will squarely apply and in such cases, sentence of imprisonment may extend to three months and fine may extend to Rs.500/-. Thus, for application of second proviso to section 16(1), the court must be satisfied that the food item involved in the case falls under the category covered under Section 16(1)(a)(ii) of the Act. 19. In this case, the article of food involved is coconut vinegar (it falls within the meaning of Section 2(1)(a)(m) of the Act) and the above article falls under Section 16(1)(a)(i) of the Act and not under Section 16(1)(a)(ii). Nothing is brought out in evidence to show that the article falls under Section 16(1)(a)(ii). Hence, second proviso to Section 16(1) cannot be applied to the present case and the argument raised that accused can be awarded maximum sentence of only three months cannot be accepted. As pointed out by learned Public Prosecutor, the minimum imprisonment prescribed in the case of adulteration of article, which falls under Section 16(1)(a)(i), is not less than six months. The sentence imposed in this case is only six months' imprisonment and hence, no interference is called for in respect of the CRRP 903/2001 10 sentence. On going through the decision reported in Chaturi's case referred above, I find that the said decision is not applicable to the facts of this case. It was a case where the State fairly conceded that the particular proviso will apply, so that the sentence could be lesser. 20. Lastly, learned defence counsel submitted that sentences were ordered to run consecutively. On the facts of this case, he requested that sentences may be ordered to run concurrently. According to him, even if the entire prosecution case is accepted, petitioner is only a petty vendor, who cannot be fastened with the liability of selling adulterated article, since it was manufactured by second accused. There is sufficient evidence to show, on the basis of admission made by PW1, that food article contained a label which showed that it was manufactured by second accused. The accused was able to establish by defence evidence and documents produced thatsecond accused was convicted in another case, as the manufacturer. Actually, the liability is on the second accused. Bu, petitioner is held liable only because he failed to establish the requirements under Section 19(2) of the Act, it is submitted. 21. On hearing both sides, I am satisfied that the request can only be accepted in the light of the facts stated above. Hence, the following order is passed: CRRP 903/2001 11 1. The conviction and sentence passed against petitioner are confirmed. 2. The sentence shall run concurrently instead of consecutively. Subject to this modification, this Crl.R.P. is partly allowed. (K.Hema, Judge) krs CRRP 903/2001 12 K.Hema, J. -------------------------- Crl.R.P.No.903 of 2001 -------------------------- ORDER 28th August, 2009