IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 Crl.Rev.Pet.No. 2437 of 2005() ------------------------------ CRA.435/2003 of ADDL.SESSIONS COURT, KOZHIKODE CC.181/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... REVISION PETITIONER(S): APPELLANTS/ACCUSED: ------------------------------------------------------------------------------ 1. P.K.ACHANKUNHU, S/O.ABRAHAM,PUTHANKAYYIL HOUSE, P.O.ELATTERI, KOYILANDY. 2. S.P.PHILOMINA, W/O.BHASKARAN, VADAKKEKUTTOTH HOUSE, OLLUR.P.O., KUNNATHARA,KOYILANDY. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------------- 1. FOOD INSPECTOR, KOYILANDY CIRCLE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SRI. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON 09/04/2010 PASSED THE FOLLOWING: Kss P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.2437 of 2005. = = = = = = = = = = = = Dated this the 9th day of April, 2010. O R D E R On 20.11.1997 at 2.00 p.m. the first respondent Food Inspector, Koyilandy Circle inspected the premises bearing Door No.6/457-A in Ulliyeri Grama Panchayat owned by the second revision petitioner, wherein banana chips manufacturing business was managed by the first revision petitioner. From out of 50 Kgs. of stock, 1st respondent purchased 600 grms. of banana chips for a value of Rs.30/- for the purpose of analysis in accordance with the statutory provisions of the Prevention of Food Adulteration Act (PFA Act) and the rules made thereunder. The banana chips so purchased was packed and sealed as sample packets as per the procedure laid down and one of the samples was sent to the Public Analyst for analysis. After analysis, the Public Analyst issued Ext.P11 report in Form No.III certifying that Crl.R.P.No.2437 of 2005. -: 2 :- the sample of banana chips contained Tartrazine, a prohibited colouring material and hence it didn't conform to the standard prescribed under the Prevention of Food Adulteration Rules. Consequently, the revision petitioners were prosecuted before the Judicial Magistrate of the First Class, Koyilandy in CC.No.181/1998 in accordance with the statutory procedures and in compliance of the mandatory provisions. 2. The learned Magistrate took cognizance and issued process responding to which they entered appearance. Evidence was recorded under Sec.244 of the Code of Criminal Procedure. After enquiry, on finding that there are sufficient materials to send the revision petitioners for trial, a charge for offence under Sec.16(1-A) (i) read with Sec.7(i), 2(ia)(b) and (j) and Sec. 29 of the Prevention of Food Adulteration Act and Rules framed thereunder was framed. The revision petitioners pleaded Crl.R.P.No.2437 of 2005. -: 3 :- not guilty when the charge was read over and explained to them. They were sent for trial. After trial, on analysing the evidence of Pws.1 to 4 and Exts.P1 to P22, the learned Magistrate arrived a conclusion of guilty. Consequently, the revision petitioners were convicted and sentenced to simple imprisonment for six months and a fine of Rs.2,000/- each with a default sentence of simple imprisonment for one month each. Though they preferred Crl.Appeal No.435/2003 before the Sessions Judge, Kozhikode, they were not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed alleging various grounds. 3. The revision petitioners filed a petition as Crl.M.A.No.9003/3009 seeking an order to amend the memorandum of revision petition mainly incorporating a plea that Tartrazine is a synthetic food colour permitted Crl.R.P.No.2437 of 2005. -: 4 :- under the Food Products Order, 1955 and that the first respondent had violated Rule 14 of the Prevention of Food Adulteration Rules. 4. Though various grounds were alleged in the memorandum of revision, none of them was argued, except that Tartrazine is a permitted colour under the Food Products Order and the Food Products Order and the said order being one coming under the Essential Commodities Act, it has an overriding effect as against the Prevention of Food Adulteration Act and hence no offence is made out and hence the conviction and sentence under challenge are not sustainable. Going by the evidence on record and the judgments of the courts below, I find that the sample was taken in accordance with strict compliance of the statutory procedures, which the courts below found against the revision petitioners. In that fact finding process, courts below had committed no error, illegality or impropriety. Crl.R.P.No.2437 of 2005. -: 5 :- Hence the only question to be considered is whether the conviction under challenge is liable to be interfered for the reason that Tartrazine is a permitted colour as per the Food Products Order. 5. The learned counsel had relied upon a decision reported in Achamma v. Union of India (2004(3) KLT 81). In that case, the material sold was synthetic vinegar in bottles with label containing the word 'non-fruit'. Food Products Order mandates label with wordings 'synthetic'. Since the word 'synthetic' was not mentioned in the label, prosecution was launched with an allegation that sample was misbranded as per Sec.2(ix)(g) of the Prevention of Food Adulteration Act. This Court found that though the word 'synthetic' was not mentioned in the label, the sample purchased contained a proper label as mandated by the Food Products Order. Consequently, the prosecution was quashed. Crl.R.P.No.2437 of 2005. -: 6 :- 6. Here in this case, the set of facts has no similarity. There is no label at all as mandated by clause 8 of the Food Product Order. Neither it was packed as contemplated by Part XX of the Food Products Order. In the event of colouring materials are added, Rule 24 of the Prevention of Food Adulteration Rules mandates that it shall contain a label to that effect, failing which the vendor or licencee as the case may be is liable to be prosecuted. There is no case for the revision petitioners that there was label under Rule 24. Though, under the Food Products Order, 1955, Tartrazine is a permitted colour, no man is permitted to carry on the business of manufacture of food products except in accordance with the terms of an effective licence as contemplated under clause 4 of the Food products Order. Since the revision petitioners have no case that they had obtained licence under the Food Products Order, revision petitioners are not entitled to take Crl.R.P.No.2437 of 2005. -: 7 :- shelter under the Food Products Order. There isn't any suggestion to the first respondent, who was examined as Pw1 that revision petitioners had obtained due licence under the Food Products Order. In the above circumstance, since there is no label as contemplated under Rule 24 of the PFA Rules regarding extraneous additions of colouring matter or any label as mandated by Clause 8 of the Food Products Order or it was packed as contemplated under Part XX of the Food Products Order and having not obtained due licence as prescribed under the Food Products Order, I find that the conviction under challenge is unassailable merely because Tartrazine is a permitted colour. Whereas, I am of the opinion that since Tartrazine is a permitted colour as per the Food Products Order, the revision petitioners are entitled to a lenient sentence deviating from the minimum prescribed and that sentence of imprisonment till the rising of the court with fine imposed by the courts below would meet the ends of justice. Crl.R.P.No.2437 of 2005. -: 8 :- In the result, this revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till the rising of the court and fine as ordered by the trial court and confirmed in appeal with default sentence thereon. P.S.GOPINATHAN (Judge) Kvs/-