IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 Crl.Rev.Pet.No. 899 of 2000 CRA.124/1998 of ADDL. SESSIONS COURT, THRISSUR CC.312/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONERS/ACCUSED/APPELLANTS: 1. P.E.MATHAI, MANAGER SARA SPICES KIZHAKKAMBALAM ERNAKULAM DISTRICT 2. M/S SARA SPICES KIZHAKKAMBALAM REPRESENTED BY P.E.MATHAI, MANAGER BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENTS: 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 2. THE FOOD INSPECTOR KUNNAMKULAM MUNICIPALITY KUNNAMKULAM BY ADV. SRI.A.K.CHINNAN SMT.GIJI MATHEW PUBLIC PROSECUTOR SRI.AMJITH ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.899 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of February 2008 ORDER Petitioner No.1 is stated to be the Manager of M/S Sara Spices, Kizhkkambalam which is a partnership firm engaged in the manufacture of various food products. Petitioner No.2 is the firm. Petitioners and another were prosecuted by the Food Inspector, Kunnamkulam Municipality for offences punishable under Section 16(1)(a)(i) read with Section 7(1) and 17 a (i) of the Prevention of Food Adulteration Act. The trial court found the petitioners guilty. However, accused No.3, the vendor/licensee of the Grocery shop was acquitted. The appellate court confirmed the above order of conviction and sentence in appeal. Hence, this revision petition. 2. The prosecution case in brief was that on July 21, 1994 at about 10.45 a.m. the Food Inspector had inspected the grocery shop run by accused No.3 bearing Door No.IV/29 of Kunnamkulam Municipality and purchased 600 gms. of coriander powder for the purpose of analysis as contemplated under the Act and the Rules. It is not in dispute that Form VI notice was issued by the Food Inspector to accused No.3/vendor at the time of purchase of the Crl.R.P.No.899 OF 2000 :: 2 :: food article. According to the Food Inspector, the vendor had informed her that the article in question had been purchased by him from M/S Sara Spices (petitioner No.2) under a warranty. Ext.D2, invoice was also produced before the Food Inspector for perusal. Accordingly, Ext.P15 notice was issued by the Food Inspector to the manufacturer as contemplated under Section 11 of the Act. The Food Inspector forwarded the sample for analysis as contemplated under the Act and the Rules. The Public Analyst in his report (Ext.P14) certified that the sample did not conform to the standard prescribed under the Act and the Rules and therefore it was adulterated. It came on record that the Central Food Laboratory issued Ext.P22 report confirming the above opinion of the Regional Food Laboratory. Petitioners were implicated in the case along with the vendor after complying with the other statutory formalities. 3. Before the trial court, the Food Inspector was examined as PW1 and two other witnesses were examined as PW2 and 3. Exts.P1 to P26 were also marked on the side of the prosecution. DW1 and 2 were examined and Exts.D1 to D9 were marked on the Crl.R.P.No.899 OF 2000 :: 3 :: side of the defence. 4. As mentioned earlier, the trial court acquitted accused No.3. Accused No.1, the firm was found guilty of the offences and accordingly convicted and sentenced to pay a fine of Rs.2,000/-. Accused No.2, the “nominee of the firm” was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.2,000/- and in default to undergo simple imprisonment for a further period of three months. The learned Sessions Judge in appeal confirmed the above order of conviction and sentence. 5. Learned counsel for the petitioners has raised several contentions in support of his plea that the courts below had egregiously erred in holding the petitioners guilty of the offences alleged against them in the absence of any cogent or satisfactory evidence. It is contended by the learned counsel that the Food Inspector had not forwarded a copy of Form VI notice to the petitioners as provided under Rule 12 of the Rules. It is also pointed out by the learned counsel that even the copy of Form VI notice which is produced by the prosecution as Ext.P2 did not Crl.R.P.No.899 OF 2000 :: 4 :: reveal any details or particulars of the food packets which were allegedly purchased by the Food Inspector. The thrust of the argument of the learned counsel is that Ext.P6 would not show whether the food article allegedly purchased by the Food Inspector was manufactured by M/S Sara Spices. According to the learned counsel, the possibility of some fake food produced in the name of the firm could have been kept for sale by the vendor. If only those details were given in Form VI notice and also if the said notice had been forwarded to the petitioners, it would have been possible for them to verify and find out whether or not any such foul play had taken place at all. 6. But as rightly pointed out by the learned counsel for the Food Inspector, Ext.P15 notice had been issued by the Food Inspector as contemplated under Section 11 in which it had been specifically mentioned that six food packets of coriander powder manufactured by the firm had been purchased by her from accused No.3 for the purpose of analysis. But it is conceded by the learned counsel that batch number, serial number, etc. of the product had not been indicated in Ext.P15. But he points out that Crl.R.P.No.899 OF 2000 :: 5 :: the details of the bill under which the vendor had purchased the product from the firm, including the date of purchase, had been clearly indicated in Ext.P15. 7. Learned counsel further submits that Ext.P13 cash/invoice issued by the firm to the vendor also did not contain any batch number, serial number, etc. of the food products. But still, it cannot be assumed that the food packets would not have contained those details. The fact remains that the Food Inspector had not bothered to indicate those numbers either in Form VI notice or in Ext.P15. I have perused Ext.P4 mahazar prepared by the Food Inspector. In the said mahazar also the details like serial number, batch number, etc. of the food packets had not been indicated. 8. But there is one crucial flaw in the prosecution case which in my view would enable accused no.2 to get an order of acquittal. The case of the prosecution is that the Firm had not nominated any person as its nominee as provided under Section 17 of the Act. To a written query made by the Food Inspector in this regard, the Firm had informed the Food Inspector that accused No.2 was its nominee. The said communication had been produced in the case Crl.R.P.No.899 OF 2000 :: 6 :: as Ext.P21. In the said communication, the General Manager of the Firm had informed the Food Inspector that petitioner No.2 had been nominated under Section 17(2) of the Act. 9. As rightly pointed out by the learned counsel for the petitioners, it had not been indicated whether Ext.P21 nomination was pursuant to a resolution passed by the firm. It is also pointed out that the nomination was not as provided under rule 12(b) read with Section 17 of the Act. Rule 12(b) postulates that the nomination should be in Form VIII. The form prescribes that the nominee must give an undertaking that he/she accepts the above nomination in pursuance of Section 17(2) of the Act read with Rule 12(b) of the Rules. 10. Admittedly, the prosecution had not produced any such nomination in the prescribed format as contemplated under Rule 12(b). A vain attempt was made by the learned counsel for the Food Inspector to salvage the situation by saying that Form VIII notice duly signed by the second accused and the resolution of the Firm were in fact available in the file and that it was an omission on the part of the Prosecutor to mark the said document in Crl.R.P.No.899 OF 2000 :: 7 :: evidence during trial. He prays that an opportunity may be given to adduce further evidence. I am not prepared to give any credence to the above contention. Similarly, I am also not persuaded to accede to the request made by the learned counsel to remit the case back to the trial court so that lacuna can be filled up. In my view, it is too late in the day for the prosecution to raise such a contention. The prosecution cannot be allowed to fill up the lacuna in this case particularly at this stage. Therefore, I am satisfied that petitioner no.1/accused no.2 could not have been convicted for the offence alleged against him. But as regards the order of conviction against the firm, I do not find any material illegality or irregularity. Therefore, the order of conviction and sentence passed against the firm/petitioner no.2 is confirmed. Petitioner no.1 is acquitted. Revision petition is disposed of in the above terms. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.899 OF 2000 :: 8 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.899 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 28th Feb. 2008