IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.Rev.Pet.No. 1765 of 2005() ------------------------------ CRA.221/2001 of ADDL. SESSIONS COURT (ADHOC I), KOZHIKODE ST.1113/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... PETITIONER/APPELLANT/3RD ACCUSED: ------------------------------------------------------------- N.ABOOBACKER, 'SAMNEUS', THATTARAKKAL PARAMBA P.O. WEST HILL, KOZHIKODE. BY ADV. MR.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT AND STATE: --------------------------------------------------------------------- 1. THE FOOD INSPECTOR, KUNNAMANGALAM CIRCLE. 2. STATE, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON 03/06/2009 PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A.NO.11668/05 IN CRRP.NO.1765/2005 DISMISSED 3/06/2009 SD/- S.S.SATHEESACHANDRAN,JUDGE /TRUE COPY/ P.A. TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.1765 OF 2005 (A) ----------------------------------- Dated this the 3rd day of June, 2009 O R D E R Concurrent verdict of guilty rendered against the revision petitioner, 3rd accused (A3), a manufacturer of a food product, for having used an exaggerated expression of the quality of the product in the packet, and thus infringing Rule 37 D of the Prevention of Food Adulteration Rules, 1955, for short, 'the PFA Rules', is challenged in this revision. He was prosecuted with two others, A1 and A2, the vendors of the food product, who claimed protection under Section 19 of the PFA Act, as having purchased the food product from a duly licensed manufacturer, the revision petitioner, for the offences punishable under Section 16 (1) A (I) read with Section 7 (1), Section 2 (1a)(a) and (m) and Rule 5 Para A 17.11 of Appendix B of P.F.A. Act, 1954 and Rule 37 D of the PFA Rules. The trial Magistrate, on the materials produced, found that A1 and A2, the vendors, are entitled to the protection under Section 19 of the PFA Act, and that the only offence established is the CRRP.1765/05 2 violation of Rule 37 D of the PFA Rules, as against the revision petitioner, the manufacturer of the food product. A1 and A2 were acquitted of the offences imputed and the revision petitioner (A3), convicted and sentenced under the first Proviso of Section 16 (1) of the PFA Act, and sentenced to undergo simple imprisonment for three months and to pay Rs.500/- as fine with default term of simple imprisonment for one month more. In appeal, the Additional Sessions Judge, Kozhikode, confirmed the conviction and upheld the sentence without any modification. Aggrieved, the revision petitioner (A3) has preferred this revision. 2. The Prosecution case in brief is thus: PW1, Food Inspector filed a complaint against the accused, three in number, on the following allegations: PW1, while acting as Food Inspector of Kunnamangalam Circle visited the grocery shop conducted by A1 and A2 in Door No.1/1586 in Mukkom town, within her jurisdiction, on 23.12.1999 at about 11.40 a.m. and purchased three bottles of gingelly oil, each having 150 ml, for the purpose of taking sample as per the CRRP.1765/05 3 provisions of the Act. Sample was taken in the manner provided by the Act and one of the three bottles of the sample was sent to the Public Analyst, who after analysis, sent a report stating that the product was adulterated. A1, at the time of sale, had purchased Ext.D1 bill dated 15.12.1999 to show that the gingelly oil was purchased from 'M/s Niyo Condiments', manufactured by the 3rd accused (A3). Receiving the report of the analyst, complaint was filed alleging that all the respondents have committed the offences punishable under Section 16 (1) A (I) read with Section 7 (1), Section 2 (1a)(a) and (m) and Rule 5 Para A 17.11 of Appendix B of P.F.A. Act, 1954 and Rule 37 D of the PFA Rules. The accused entered appearance pursuant to summons, and on the application moved by A3 under Section 13 (2) of the PFA Act, second sample was sent over for analysis to the Central Food Laboratory. After analysis over the sample, the Director of the Central Food Laboratory sent Ext.D2 certificate stating that the sample conformed to the standards prescribed and it was not adulterated, but, the packet of the food product was labelled with exaggerated expression violating Rule 37 D of CRRP.1765/05 4 the PFA Rules. The trial proceeded after receiving the report with prosecution examining PWs.1 to 6 and marking Exts.P1 to P32 to prove its case. Exts.D1 and D2, the cash bill produced by A1 and A2 and the report from the Director of the Central Food Laboratory were also exhibited. None of the accused adduced any other evidence. As already stated, the learned Magistrate acquitted A1 and A2 of the offences charged and the revision petitioner (A3) was found guilty of having committed the offence under Rule 37 D of the PFA Rules, and he was accordingly convicted and sentenced for such offence as referred to above. 3. I heard the learned counsel for the revision petitioner (A3) and also the learned Public Prosecutor. A threefold challenge was pressed into service by the learned counsel for the revision petitioner to challenge the conviction imposed against the 3rd accused. Complaint was filed by the Food Inspector on the basis of the report of the Public Analyst over the sample, imputing the allegations that the food product, gingelly oil, manufactured by A3 and sold by A1 and A2 was CRRP.1765/05 5 adulterated, and thus the offence under the PFA Act and Rules are committed by the accused. When the report of the Director of the Central Food Laboratory was obtained over the second sample, the edifice of the complaint as a whole was shattered, according to the counsel, as that report disclosed that the food product conformed to the standards prescribed and was not adulterated. Prosecution of A3 for violation of Rule 37 D of the PFA Rules on the basis of the report of the Director of the Central Food Laboratory that the packet contained an exaggerated expression of the product, according to the counsel, could not have been pursued on the complaint already filed by the Food Inspector, and if at all any prosecution thereof was demanded, then, it is the submission of the counsel that the complaint already filed should have been withdrawn and a fresh complaint from the Food Inspector imputing such offence was warranted. Secondly, it is urged that the concern named in Ext.D1 bill shown as 'Niyo Condiments' and the one run by A3 namely 'Neo Condiments' are totally different and the Food Inspector neither inspected nor verified the registers maintained at that concern, submits CRRP.1765/05 6 the counsel. Ext.P19 reply received from the Health Inspector would show that the concern run by A3 as 'Neo Condiments' and not 'Niyo Condiments' covered by Ext.D1 bill. That being so, and especially where no inspection of that concern was conducted by the Food Inspector, the court below went wrong in holding A3 as the manufacturer of the food product covered by Ext.D1 bill and founding a conviction against him for the offence with which he was found guilty, submits the counsel. Lastly, the learned counsel inviting my attention to Rule 37 D of the PFA Rules, submitted that the expression used as 'Super pure' in the package does not come within the expression used under that Rule, which could be considered as an exaggeration of the quality of the product. In this context, the learned counsel also submitted that the Central Food Laboratory analysed the sample after the expiry date, but still the oil was found to be conformed to the standards prescribed and free from any adulteration. The expression used as 'Super pure' by the manufacturer, which is not mentioned as one among the exaggerated expressions covered by Rule 37 D of the PFA Rules, in the circumstances, cannot CRRP.1765/05 7 be considered as one exaggerating the quality of the product, according to the counsel. On the above submissions made, the learned counsel urged for reversing the conviction and sentence imposed against the 3rd accused, the revision petitioner. 4. I have perused the records of the case giving consideration to the submissions made by the counsel. The challenge canvassed that a fresh complaint was required to proceed against A3 for violating Rule 37 D of the PFA Rules as disclosed from the report of the Director of the Central Food Laboratory (Ext.D2) has no merit at all. Certificate of the Director of the Central Food Laboratory, needless to point out, can be brought in evidence only in the post-institutional stage of the case and once such a report is received, the evidence in the form of the Public Analyst stands substituted by the certificate of the Director of the Central Food Laboratory. In Food Inspector v. Sreenivasa Shenoy (2000 (3) KLT 1 (SC)), adverting to the substitution of the Analysis report of the Public Analyst by the certificate of the Director of the CRRP.1765/05 8 Central Food Laboratory the apex court has observed thus: “No legal provision required the case to be switched back to the pre-institution stage. A post-institutional development while exercising a statutory right conferred on the accused for challenging the report of the Public Analyst during trial is not a premise for turning the key backward for a fresh institution of the prosecution, whatever be the result of the analysis made by the Central Food Laboratory. The trial has to proceed with the certificate on record which superseded the Report of the Public Analyst.” The trial proceeded against the accused only after receiving Ext.D2 report from the Director of the Central Food Laboratory and the particulars of the charge brought to the notice of the accused including the infringement of Rule 37 D of the PFA Rules and no prejudice had been caused to the accused in such trial as borne out by the materials covered in the case. So much so, this was a case where the prosecution was instituted validly by the Food Inspector, on the basis of the report received from the Public Analyst that the sample analysed was adulterated. Once prosecution is instituted CRRP.1765/05 9 validly as observed by the apex court in Food Inspector's case (supra), “the matter is in the hands of the judicial functionary and further proceedings can be controlled by such functionary”. So much so, the statutory right conferred on the accused to challenge the report of the Analyst by having the second analysis of the second sample, through a different agency, can never be the basis to claim a switchback for a fresh institution of the prosecution on the basis of the subsequent report especially where that report supersedes the previous report of the Analyst. The trial has to proceed with the certificate on record which superseded the report of the Public Analyst, and that being so, charge for infringing Rule 37 D of the PFA Rules which did not form part of the complaint with the other offences levelled in the complaint is proper, valid and correct. At any rate, the materials would convincingly show no prejudice whatsoever had been caused to the accused in proceeding with the trial including the offence for the violation of Rule 37 D of the PFA Rules. 5. PW1, the Food Inspector, had not inspected and CRRP.1765/05 10 verified the registers maintained in the concern of A3 and that 'Niyo Condiments' covered by Ext.D1 bill and 'Neo Condiments' run by A3 are different, canvassed by the learned counsel to assail the conviction, it is noticed, had been pressed into service before the trial Magistrate and also the Sessions Judge in appeal, and both of them repelled that line of defence giving cogent and convincing reasons analysing the materials tendered by the prosecution. Evidently, the spelling difference in the name of the concern covered by Ext.D1 bill with that of Ext.P19 report of the Health inspector was sought to be taken advantage by the revision petitioner to set up a case that his manufacturing concern was different and distinct. The trial Magistrate has adverted to the evidence of PW6, the Health Officer and also Ext.P32 to conclude that both the concerns 'Niyo Condiments' and 'Neo Condiments' are one at the same and the plea raised based on the spelling differences by the accused (A3) was hyper technical. The Sessions Judge, after reappreciating the evidence has concurred with that finding of fact over which a further enquiry in revisional jurisdiction on the facts presented is CRRP.1765/05 11 found to be not at all warranted. So that challenge pressed into service to assail the conviction is also meritless. 6. Plea canvassed by the counsel that the expression 'Super pure' in the package is not one of the expressions covered by Rule 37 D of the PFA Rules as an exaggeration of the quality of the product, is also found to be not acceptable. Rule 37 D of the PFA Rules reads thus: [37-D. Labelling of edible oils and fats:- “The package, label or the advertisement of edible oils and fats shall not use the expressions “Super-Refined”, “Extra-Refined”, “Micro-Refined”, “Double- Refined”, “Ultra-Refined”, “Anti- Cholesterol”, “Cholesterol Fighter”, “Soothing to Heart”, “Cholesterol Friendly”, “Saturated Fat Free” or such other expressions which are an exaggeration of the quality of the Product;] It is to be noticed, the expressions named under the rule are not the only expressions, which could be treated as exaggeration of the quality of the product, but also 'such other expressions' of similar nature which would tend out an CRRP.1765/05 12 exaggeration of the quality of the product. The expression used 'Super pure' on the label, over the bottle containing the food product, gingelly oil, manufactured by the 3rd accused cannot be viewed as a simple expression not coming within the mischief of Rule 37 D of the PFA Rules. The analysis over the second sample even after the expiry would show that it conformed to the standards prescribed and was free from adulteration, has no relevance in examining the question whether labelling over the bottle contained an expression amounting to exaggeration of the quality of the product. The use of the expression 'Super pure' in the label of the bottle amounted to exaggeration of the quality of the product as found by the trial Magistrate and upheld by the Sessions Judge, and the use of such expression violated Rule 37 D of the PFA Rules, in the proved facts of the case, has only to be accepted as true and correct. Challenges pressed into service to assail the conviction of the accused are found to be devoid of any merit. 7. As regards the sentence imposed, it is seen, only the CRRP.1765/05 13 mandatory minimum prescribed by the Statute as covered by the first Proviso to Section 16 (1) of the PFA Act had been imposed, and no interference with such punishment is permissible. Revision is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.1765 OF 2005 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 3rd June, 2009