IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 Crl.Rev.Pet.No. 1321 of 2002() ------------------------------ CC.178/1989 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM CRA.142/1998 of ADDL.SESSIONS (SPL.) COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT-2ND ACCUSED: ------------------------------------------- V.N. PONNAMMA, THERATHU, VELLOOR P.O., PAMPADY PANCHAYATH. BY ADV. SRI.MATHEW JOHN (K) SRI.BABY THOMAS RESPONDENT(S): RESPONDENTS/COMLPLAINANT: ---------------------------------------- 1. THE FOOD INSPECTOR, MEENADAM PANCHAYATH CHANGANACHERRY CIRCLE, PERUNNAI P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 1321 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 28th day of July, 2011 O R D E R Revision petitioner is the second accused in C.C.No.178/1989 on the file of the Chief Judicial Magistrate Court, Kottayam and appellant in Crl.A.No. 142/1998 on the file of the Addl. Sessions (Spl) Court, Kottayam. Both the accused were convicted under section 7(i) and (iii) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as “the Act”) and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for one month each by the trial court by judgment dated September 1, 1998. On appeal by the second accused, the lower appellate court by judgment dated August 27, 2002 confirmed her conviction under CRRP 1321/2002 2 section 7(i) of the Act, but set aside her conviction under section 7(iii) of the Act and dismissed the appeal maintaining the sentence. The second accused has come up in revision challenging her conviction and sentence. 2. The case of the complainant, Food Inspector, Meenadam Panchayat in Changanacherry Circle, as testified by him as PW1 and as detailed in the complaint, in brief, is this:- The first accused was conducting a retail provision shop bearing door No. MP.I-237 at Puthenpurackalpady in Ward No.I of Meenadom Pancyayat. He was engaged in the sale of food article without obtaining licence under the Prevention of Food Adulteration Rules. The second accused was running a concern under the name and style “Priya Curry Powder” in door No.III/518 of Pampady Panchayat and she was engaged in the manufacture and sale of curry powder, including chilly powder. 3. On June 17, 1989 at about 10.30 a.m. PW1, the complainant-Food Inspector, inspected the provision shop CRRP 1321/2002 3 run by the first accused. He purchased five packets of chilly power which bear the label of the second accused. On analysis, the Public Analyst found that the said chilly powder contained not less than 20% of wheat starch and coal-tar-dyes carmosine and sunset yellow colour. Thus, according to the complainant, the accused persons have committed offences punishable under sections 2(1)(a) and 7(i) and (iii) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act and read with rule 5 Appendix B item A.05.0 and rule 5 of the Prevention of Food Adulteration Rules. 4. On receipt of the complaint, the trial court recorded the sworn statement of PW1. As a prima facie case was made out against the accused persons, notices were issued to them. Pursuant to the notice, the accused persons appeared before the trial court. After hearing both sides, charge under sections 2(1)(a) and 7(i) and (iii) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act was framed, to which they pleaded not guilty. CRRP 1321/2002 4 Thereafter PW1 was recalled and further cross-examined and PWs.2 to 6 were examined and Exts.P1 to P20 were marked on the side of the complainant. When questioned under section 313 Cr.P.C. by the trial court, the first accused submitted that he had purchased the chilly powder from the second accused. The second accused denied all incriminating circumstances against her and denied having manufactured chilly powder under the label “Priya Curry Powder” and sold to the first accused. Dws.1 to 4 were examined and Ext.D1 was marked on the side of the accused persons. 5. The trial court, on an appreciation of the evidence, found the second accused guilty of the offences punishable under section 7(i) and (iii) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, convicted her thereunder and sentenced her as afore said. On appeal by the second accused, the lower appellate court confirmed her conviction under section 7(i) of the Act, but set aside her conviction under section 7(iii) of the Act and dismissed CRRP 1321/2002 5 the appeal maintaining the sentence. The second accused has come up in revision challenging her conviction and sentence. 6. Against his conviction and sentence, the first accused filed Crl.A.No.138/1998 before the lower appellate court. The lower appellate court by judgment dated August 27, 2002 set aside his conviction under section 7(i) of the Act. But his conviction under section 7(iii) of the Act read with rule 50 of the Prevention of Food Adulteration Rules was confirmed and the sentence was reduced to simple imprisonment for three months and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month. On revision by the first accused (Crl.R.P. No.1329/2002), this Court by order dated June 23, 2009 reduced the sentence to imprisonment till rising of court and to pay fine of Rs.500/-, in default to undergo simple imprisonment for two weeks. 7. Heard the counsel for the revision petitioner and the Public Prosecutor. CRRP 1321/2002 6 8. The counsel for the revision petitioner submitted that there was no evidence to show that the revision petitioner was manufacturing and selling the chilly powder and that in any event the sentence imposed on her is harsh and excessive. The Public Prosecutor on the other hand supported the judgment of the lower courts. 9. The fact that PW1 the Food Inspector inspected the shop of the first accused, that he purchased five packets of chilly powder containing label “Priya Curry Powder”, which, on analysis by the Chemical Analyst, found to have been adulterated with 20% of wheat starch and coal-tar-dyes carmosine is proved by the evidence adduced on the side of the complainant Food Inspector. The above fact was also admitted by the first accused who was examined as DW2 before the trial court. 10. PW1 is the de facto complainant-Food Inspector. PW2 is the Special Grade Executive Officer, Pampady Panchayat in whose presence the sample was taken. PW3 is the Peon in the office of the complainant. PW4 is the CRRP 1321/2002 7 District Food Inspector. PW5 is an independent witness. PW6 is the Secretary, Meenadom Grama Panchayat. Ext.P1 is the notification dated 4-11-1985 authorizing the complainant to detect the case and file cases before the court. 11. The specific case of the revision petitioner/second accused is that she did not manufacture chilly powder or sold to the first accused, but the evidence on the side of the first accused DWs.1 to 3 and Ext.D1 proved beyond doubt that the chilly powder in question was sold to the first accused by the revision petitioner. DW1 is an independent witness. He submitted that he used to purchase chilly powder from the revision petitioner/second accused, which was manufactured by her under the title “Priya Curry Powder”. Nothing was brought out during his cross- examination to discredit his evidence. DW2 is the first accused who also testified likewise. DW3 is the Executive Officer of Pampady Panchayat who issued Ext.D1 certificate to the effect that on inspection of the register for the period CRRP 1321/2002 8 1988-'1989 it was found that licence No.19 was issued to the second accused for the manufacture of chilly powder. 12. DW2 was recalled for marking Ext.D1. He would say that “Ponnamma” mentioned in Ext.D1 is second accused. On this point there was no cross-examination by the second accused. It is clear from the above facts that the second accused was conducting manufacture and sale of chilly powder and that the same was purchased by first accused from which PW1 Food Inspector took the sample and the same was found to be adulterated. That being so, the conviction of the revision petitioner under section 7(i) of the Act has to be confirmed. 13. As regards the sentence, the trial court sentenced the revision petitioner to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month. The revision petitioner is a lady aged 57. Further, the incident happened in 1989 i.e. more than twenty years ago. Taking into consideration the above fact, I feel that a sentence of CRRP 1321/2002 9 imprisonment till the rising of court and to pay a fine of Rs.10,000/- with default sentence would meet the ends of justice. 14. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 7(i) of the Prevention of Food Adulteration Act is confirmed. She is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for two months. One month time is granted for payment of fine. The revision petitioner shall surrender before the trial court on or before August 16, 2011 to suffer the sentence. Her bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE. mn CRRP 1321/2002 10 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 1321 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R