IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 Crl.Rev.Pet.No. 767 of 2001() ----------------------------- CRA.43/1997 of ADDL.SESSIONS COURT, NORTH PARAVUR ST.254/1992 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- K.A.LATHEEF, KANJIRATHINKAL HOUSE, EDAPURAM, ASOKAPURAM.P.O., ALUVA BY ADV. SRI.SANTHOSH SUBRAMANIAN SRI.SHEJI P.ABRAHAM RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. FOOD INSPECTOR, EDAPPALLY CIRCLE, EDAPPALLY, ERNAKULAM 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P .NO.3593/01 IN CRRP 767/02 DISMISSED 15.6.10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.767 OF 2001 --------------------------------------------- Dated 15th June, 2010 O R D E R Food Inspector, Edappally Circle after disclosing his identity and intention to take sample, purchased 450 gm. Of coriander powder from shop No.VII/522 of Keezhmadu panchayat run by the petitioner at about 12.30 p.m on 26/11/1991. He prepared three samples and sent one sample to the Public Analyst and produced the remaining samples to the Local Health Authority. Ext.P3 report was received from the Public Analyst stating that coriander powder is adulterated as sample contained not less than 20% of wheat powder. By Ext.P4 registered notice dated 17/2/1992, petitioner was served with copy of Ext.P3 CRRP 767/01 2 report and also made him aware of his rights to apply under Section 13(2) of P.F.A.Act within ten days of receipt copy of the report. It was received by the petitioner under Ext.P5 on 19/2/1992. Though petitioner filed Crl.M.P.1145/1992, under Section 13(2) of Prevention of Food Adulteration Act to send one of the remaining samples to the Central Food Laboratory, learned Magistrate dismissed the application on the ground that application was not filed within ten days of receipt of copy of the report of Public Analyst. Petitioner pleaded not guilty. Learned Magistrate on the evidence of Pws.1 to 4 and Exts.P1 to P12 and DW1 and Ext.D1 on the side of the petitioner found him guilty of the offence under Section 2(ia)(a)(c), 7(i)(v) read with Section 16(1)(a) (ii) of P.F.A.Act and Rule 5 and 50 of CRRP 767/01 3 P.F.A.Rules. He was sentenced to rigorous imprisonment for six months and fine of Rs.1,000/- and in default simple imprisonment for one month for the offence under Section 2 (ia)(a)(c), 7(i)(v) read with Section 16(1)(a) (ii) of P.F.A.Act. No separate sentence awarded for the offence under Rule 5 and 50 of P.F.A.Rules. Petitioner challenged the conviction and sentence before Additional Sessions court, North Paravur in Crl.A.43/1997. Learned Additional Sessions Judge on re- appreciation of the evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the Learned counsel CRRP 767/01 4 appearing for the petitioner is that serious prejudice was caused to the petitioner by denying an opportunity to get the sample examined by the Central Food Laboratory. Relying on the decision of the Division Bench in Food Inspector v. Karunagappally Co-OP. M.S.Society Ltd( 1986 KLT 174) and the unreported decision in Crl.R.P.215/1996, learned counsel would argue that though there was a delay of five days in filing the application under Section 13(2) of P.F.A.Act on receipt of copy of Ext.P3 report, that is not a justifiable ground to deny the opportunity especially when petitioner has shown sufficient reason for the delay in his application filed before the learned Magistrate. It was argued that petitioner received the copy of Ext.P3 report only on 19/2/1992 and on 5/3/1992 itself CRRP 767/01 5 application was filed and delay of less than five days should not have been made a valid ground to deny the opportunity and when evidence of PW3 Public Analyst and Ext.P3 report of Public Analysis does not disclose that there was a proper chemical analysis, conviction denying the opportunity to get the sample examined by Central Food Laboratory is illegal. Learned counsel would argue that though the petitioner was convicted for not having a license under the P.F.A.Rules, no sentence was awarded for the offence under Rule 50 of P.F.A Rules and when the non awarding of the sentence was not challenged by the prosecution, in the revision filed by the accused, sentence cannot be awarded for that offence and therefore, conviction is to be set aside. CRRP 767/01 6 4. Learned Public Prosecutor submitted that when petitioner did not apply to send the second sample to the Central Food Laboratory within the period provided under Section 13(2), his right got extinguished and as provided under sub Section 5 of Section 13, report of the Public Analysis has become conclusive and petitioner is not entitled to contend that prejudice was caused to him and the conviction is perfectly legal. 5. Ext.P3 report of chemical analysis is dated 13/2/1991. Evidence of PW1 with Ext.P4 copy of the notice and Ext.P5 postal acknowledgment card establishes that copy of Ext.P3 was sent to the petitioner by District Food Inspector on 17/2/1991. It was received by the petitioner under Ext.P5 on 19/2/1992. Sub Section 2 of Section 13 provides that on CRRP 767/01 7 receipt of copy of the report of chemical analysis, such person may make an application to the court “within a period of ten days from the date of receipt of copy of the report” to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. Proviso to Sub Section 5 provides that any document purporting to be a report signed by a public analyst, unless it has been superseded under sub section (3) or any document purporting to be a certificate signed by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein in any proceedings under the Act or under Sections 272 to 276 of Indian Penal Code. Section 13(2) does not provide that on the failure of such person to file an application within ten days of receipt of the CRRP 767/01 8 report of chemical analysis, his right under Sub Section 2 will get extinguished. Division Bench of this court in Karunagappally Co- operative Society's case (supra) considered the question whether period of ten days prescribed under Section 13(2) of the P.F.A Act is an inflexible rule and whether a person could apply to send the second sample to Central Food Laboratory after the expiry of ten days from the date of receipt of the report. This court held that period of ten days has been prescribed only to ensure that steps are taken expeditiously with a view to avoid delay in the trial and termination of the case and Section 13 does not provide that a person is not entitled to apply to the court after the expiry of the period fixed therein, to send the second sample to the laboratory. This court CRRP 767/01 9 held that if an accused makes an application, after expiry of the period and satisfies the court that there has been no laches on his part, it is open to the court to invoke the power and jurisdiction and allow the application though made after the expiry of the period provided under Section 13(2). Therefore, it was held that the period of ten days prescribed under Section 13(2) is not an inflexible period and for satisfactory reasons, court can exercise the power and send the second sample to the Central Food Laboratory even after the said period. 6. Though learned Public Prosecutor relied on the decision of the Apex court in State of Haryana v. Brij Lal Mittal and others (1998 (5) SCC 343) and relying on paragraph 7 of the decision argued that on the failure to CRRP 767/01 10 apply within the period fixed under Section 13, the right to apply under Section 13(2), to send the second sample to the Central Food Laboratory is extinguished, Honourable Supreme Court was considering Section 25 of the Drugs and Cosmetics Act therein. Section 25 of that Act deals with report of Government Analyst. Sub Section (3) therein provides that any document purporting to be a report signed by Government Analyst in this Chapter shall be evidence of the facts stated therein and such evidence shall be conclusive unless the person from whom sample has been taken or the person whose name, address and other particulars have been disclosed under Section 18A, within 28 days of the receipt of a copy of the report, notified in writing to the Inspector or the court, before which any CRRP 767/01 11 proceedings in respect of the sample, are pending that they intend to adduce evidence in contravention of the report. Wording in Section 13(2) of P.F.A.Act is different from the wording in Sub Section 3 of Section 25 of Drugs and Cosmetics Act. Section 13(2) does not provide that on the failure of such person to file an application within ten days of date of receipt of a copy of the report of the Public Analyst, the report of the public analyst shall be conclusive. In such circumstances, based on the finding of the Honourable Supreme Court that on the failure to notify the inspector that they intend to adduce evidence in contravention of the report within 28 days, not only the right of the manufacturer to get the sample tested by the Central Drug Laboratory through the court CRRP 767/01 12 concerned stood extinguished, the report would be conclusive. That cannot be made applicable to Section 13(2) of P.F.A.Act. As stated by this court in Karunagappally Co-Operative Society's case (supra) if such person could satisfactorily explain the delay for the failure in filing the application within the period of ten days from the date of receipt of copy of the report, the right to get the second sample examined by the Central Food Laboratory cannot be rejected mechanically as has been done by the learned Magistrate in this case. 7. Crl.M.P.1145/1992 was filed by the petitioner under Section 13(2) of P.F.A.Act on 5/3/1992. It shows that he has specifically stated that he was being treated for urinary and liver diseases and therefore, he was not CRRP 767/01 13 in a position to travel and he could not have filed the application within ten days of receipt of the report and delay was occasioned not due to any laches or negligence but due to reasons beyond his control. As stated earlier Ext.P5 postal acknowledgment card shows that copy of Ext.P3 report of the Public Analyst was received by the petitioner only on 19/2/1992. As provided under Section 13(2) he has to apply within ten days from 19/2/1992. Therefore, application should have been filed on or before 2/3/1992. Instead Crl.M.P.1145/1992 was filed on 5/3/1992. Learned Magistrate dismissed the petition by order dated 11/3/1992. The sole reason is the delay consequent to the failure to file the application within ten days. learned Magistrate did not consider the reason for the delay CRRP 767/01 14 stated in the petition in Crl.M.P.1145/1992. Learned Magistrate has not dismissed the petition for the reason that the reason for the delay shown in the application is not sufficient or correct. In fact delay of three days would not have made any difference in the case. In such circumstances, learned Magistrate was not justified in dismissing the application without considering the cause for the delay stated by the petitioner. If that be so, by the dismissal of the application, right of the petitioner to get the second sample examined by the Central Food Laboratory was illegally rejected. It definitely caused serious prejudice to the petitioner. Though learned counsel appearing for the petitioner argued that as the mode of analysis was not mentioned in Ext.P3, and the evidence of PW3 that iodine CRRP 767/01 15 test was conducted to detect starch was not disclosed in Ext.P3, the report cannot be accepted. There is no rule that mode or particulars of the analysis is to be furnished in the report of public analyst and hence the report cannot be challenged on that ground. Honourable Supreme court in Dhian Singh v. Municipal Board, Saharanpur and another(AIR 1970 SC 318) settled the legal position. Approving the decision of High Court of Allahabad in Nagar Mahapalica of Kanpur v. Sri Ram (1964 AIR Allahabad 270) wherein it was observed that report of public analyst under Section 13 of PFA need not contain the mode or particulars of analysis nor the test applied, but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not CRRP 767/01 16 adulterated as defined in Section 2(1) of the Act, it was held that the report cannot be challenged for not furnishing the mode or the particulars of analysis. 8. Ext.P3 report was submitted when Form III as now stands was not incorporated. In such circumstances, challenge on Ext.P3 on that ground cannot be accepted. At the same time, by the dismissal of Crl.M.P.1145/1992 and the consequential denial to get the second sample examined, prejudice is caused to the petitioner. It is fatal to the prosecution. Hence conviction of the petitioner for the offence under Section 16(1)(a)(ii) of P.F.A.Act can only be set aside. 9. Though the petitioner was also convicted for not having a license under Rule 50 of P.F.A.Rules, learned Magistrate did not CRRP 767/01 17 award a sentence for the said offence. Prosecution did not challenge the non awarding of sentence for that offence in spite of the conviction. As a result, though petitioner was convicted for violation of Rule 50 of P.F.A.Rules, there is no sentence. Question is whether it is open for this court to award a sentence in a revision filed by the accused was considered by this court in Poulose v. Food Inspector ( 1992 (1) KLT 522). It was held that as the Food Inspector has not filed an appeal and appeal was only by the accused against his conviction and sentence, revisional court cannot award the sentence for the first time. Hence when the conviction is to be set aside, no sentence could be awarded for the offence under Rule 50. Revision is allowed in part. The CRRP 767/01 18 conviction for the offence under Section 16(1) (a)(ii) of P.F.A.Act in S.T.254/1992 on the file of Judicial First Class Magistrate-I, Aluva as confirmed by learned Additional Sessions Judge, North Paravur in Crl.A.43/1997 is set aside. Petitioner is acquitted of the said offence. M.SASIDHARAN NAMBIAR, JUDGE. uj.