IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Crl.Rev.Pet.No. 737 of 2000() ----------------------------- CRA.155/1993 of I ADDL. SESSIONS COURT, TRIVANDRUM ST.49/1989 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... REVN. PETITIONER/APPELLANT/ ACCUSED ---------------------------- R.BHAGULAYAN, KANIVILA VEEDU, POONKULAM, VELLAYANI P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.SATHEESH KUMAR RESPONDENTS/ RESPONDENTS/ COMPLAINANT & STATE ---------------------- 1. C.USHA RANI, FOOD INSPECTOR, TRIVANDRUM CIRCLE, T.B. CENTRE CAMPUS, TRIVANDRUM 37. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/01/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J = = = = = = = = = = Cr.R.P. No. 737 OF 2000 = = = = = = = = = = = = = Dated this the 29th day of January, 2008. = = = = = = = = = = = = = = = = = = = = = = O R D E R The petitioner was prosecuted by the Food Inspector, Thiruvananthapuram Circle, before the Judicial 1st Class Magistrate No. I for offences punishable under Sections 16(1)(a) (i) r/w Section 2 (ix) (a) and Section 7(ii) of the Prevention of Food Adulteration Act, 1954 as amended by Act 34/76. The trial court found the petitioner guilty of the offences alleged against him and he was accordingly convicted and sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1,000/-. In default of payment of fine the petitioner was directed to undergo simple imprisonment for three months. The above order of conviction and sentence was challenged by the petitioner in appeal before the Sessions Court. Initially the appeal was allowed and the order of conviction and sentence was set aside. However this court in Cr. R.C 11/96, which was registered suo motu, reversed the order of acquittal and directed the Sessions court to dispose of the appeal afresh after considering the Cr.R.P. No. 737 OF 2002 2 question whether the article sold by the accused to the Food Inspector was misbranded or not. The learned Sessions Judge thereafter passed the impugned judgment confirming the order passed by the trial court. Hence this revision petition. 2. The case of the prosecution as spoken to by PW3, the Food Inspector, was that on 15.02.1989 at about 1.30 pm, he had inspected the provision store run by the petitioner and purchased 750 gm of toor dhall ( ) for Rs. 6/- being the value thereof. The article was sampled as prescribed by the Act and the Rules in three parts and one such part was sent to the Public Analyst for analysis. PW2, the Public Analyst, in Ext.P4 report certified that the sample consisted wholly of mazoor dhall and was therefore misbranded under Section 2(ix) (c) of the Prevention of Food Adulteration Act. In other words, the analyst found that the sample was not “toor dhall” as described on the sample bottle. 3. It is contended by learned counsel for the petitioner that the courts below were not at all justified in holding the petitioner guilty of the charge of “misbranding”. At the time of inspection made by PW3, only one variety of dhall namely “toor Cr.R.P. No. 737 OF 2002 3 dhall”, was available. The Food Inspector had asked for 750 gm of the said dhall after paying Rs.6/-. The petitioner had never told PW3 that it was toor dhall. 4. But it is pointed out by the learned Government Pleader that in Ext.P11 voucher for receipt of value of the dhall, the accused in his own hand, had written that he had sold toor dhall. But learned counsel for the petitioner contends that Ext.P11 may not be of much significance, since the petitioner had only written down what had been dictated by the Food Inspector. He further submits that the petitioner hails from a rural area with only primary education to his credit. The shop was also situated in a remote village. The handwriting in Ext.P11 of course indicates that its author is not well educated. Plenty of mistakes are seen in Ext.P11. Therefore I am persuaded to give some credit to the submission made by the learned counsel in this regard. 5. In this context, it is to be noticed that PW3 did not have a case that other varieties of dhall were also available in the shop and that the petitioner had given mazoor dhall though PW3 had asked for toor dhall. I have carefully perused Ext.P13 Cr.R.P. No. 737 OF 2002 4 mahazar as well as the deposition of PW3. There is nothing on record to show that other varies of dhall were available in the shop. More significantly, PW3 did not have a case that petitioner had inscribed or written “toor dhall” on the bag/container in which the dhall was kept in the shop. For that reason also I am persuaded to accept the version of the petitioner that the Food Inspector had asked for the dhall which was seen in the shop and he had given the said commodity which was available. 6. I am persuaded to take the above view for yet another reason. The Public Analyst had not found that the food article analysed was adulterated in any manner. It did not contain any foreign matter or damaged/insect damaged grain. The sample wholly consisted of mazoor dhall and nothing else. Similarly the sample did not contain any added colouring matter or broadened hair and excreta. Moisture was also within the permitted limits. 7. Petitioner has been undergoing the ordeal of this prosecution for the last more than 19 years. He is now in his 50's. The evidence on record indicates that he is a petty trader. Having regard to the entire facts and circumstances I am satisfied that the petitioner is entitled to get the benefit of doubt. Cr.R.P. No. 737 OF 2002 5 I am of the view that the evidence on record will not indicate that the petitioner had sold mazoor dhall in the name of toor dhall thereby attracting the offence of misbranding. Therefore, the order of conviction and sentence passed against the petitioner is set aside and he is acquitted. The revision petition is allowed. A.K. BASHEER, JUDGE bkn/-