IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Crl.Rev.Pet.No. 268 of 2002(C) ----------------------------- CRA.107/1994 of SESSIONS COURT, MANJERI ST.1234/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER: ACCUSED: ----------------------------- E.P.UNNEN, S/O.SAIDALI, ERASSERI PALLIYIL, ANAMANGAD, ALIPARAMBA PANCHAYAT MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. FOOD INSPECTOR,ALIPARAMBA PANCHAYATH, MALAPPURAM CIRCLE, MALAPPURAM POLICE. 2. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P. No.268 of 2002 ------------------------------------- Dated this the 27th day of March, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under the provisions of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act'). The petitioner/accused has been found guilty, convicted and sentenced under Section 2(ia) (m) and Section 7 (i) r/w Section 16(1) (a)(i) of the Act. He faces a sentence of S.I for a period of 10 months and to pay a fine of Rs.2,000/- and in default to undergo S.I for a further period of 3 months. 2. The prosecution alleged that the petitioner herein had sold the samples of synthetic vinegar to the Food Inspector, PW2 on 06.04.93 at the shop of the petitioner. The said sample on analysis was found to be adulterated and did not conform to the standards prescribed for synthetic vinegar in A.20.01 of the appendix B to the P.F.A Rules. 3. Cognizance was taken on the basis of a complaint filed by the Food Inspector. Accused entered appearance and denied the offence alleged against him. Thereupon the prosecution examined PWs 1 to 5 and proved Exts.P1 to P21. The accused Crl.R.P. No.268 of 2002 2 pleaded not guilty. He denied the circumstances which appeared in evidence and which were put to him. In 313 examination, he appears to have taken a stand that while he was not available in his shop, someone had delivered bottles of vinegar and when he returned, the Food Inspector demanded sale of such bottles and it was accordingly that the sampling was done. No defence witness was examined. But Ext.D1, a gazette notification was proved. 4. The courts below concurrently came to the conclusion that the appellant had succeeded in establishing all ingredients of the offence punishable under Section 16(1) (a)(i) of the Act. Accordingly they proceeded to pass the impugned judgments. 5. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of the challenge which the petitioner/accused wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner raises various contentions. 6. First of all it is contended that the procedure for sampling adopted by the Food Inspector is not correct. Several bottles of synthetic vinegar were available in the shop and from them, 3 separate bottles were purchased as samples. These bottles were not opened. The contents of the samples were not Crl.R.P. No.268 of 2002 3 mixed up and made homogeneous. This, it is contended, amounts to violation of the provisions of the Food Adulteration Act and Rules. No proper sampling has been done. The article purchased has not been made homogeneous before it was divided into 3 and samples drawn. For these reasons, the prosecution must fail, it is contended. 7. I find no merit in this contention. Both courts have adverted to Rule 22 A of the P.F.A Rules. That is an enabling provision which permits the Food Inspector to purchase the contents of one or more of such containers as required to satisfy Rule 22. Mahazar prepared by the Food Inspector shows unmistakably and the evidence of Food Inspector as PW2 confirms that there were identical label declarations for all the bottles and this is a clear answer to the contention raised that there has been no proper sampling. Rule 22 A permits such sampling. All necessary circumstances to attract Rule 22 A have been satisfactorily established and in these circumstances I find no merit in the contention that the sampling done is not proper. 8. It is then contended that after purchasing the bottles, wax sealing has not been done. It is then contended that because there was no such wax sealing, there was possibility of evaporation and consequent alteration in the contents of the Crl.R.P. No.268 of 2002 4 bottles. I find no merit in this contention at all. The evidence of the Food Inspector shows that it was a sealed bottle containing synthetic vinegar that was purchased by him. According to him, he found no reasons to further seal it. The report of the public analyst shows that the public analyst found the sample to be untampered and the seal to be intact. In these circumstances the contentions that there has been no proper sampling, consequently loss of contents by evaporation is possible and further that the report of analysis submitted by the public analyst cannot be reckoned as valid cannot be accepted. The evidence clearly shows that sample was purchased in sealed bottles and consequently the grievance that the Food Inspector did not seal it further is found to be without any merit. 9. There is a vague contention that the article is an article of primary food and therefore proviso to Section 2(ia)(m) would apply. I am unable to understand the basis of this contention. Primary food is defined in Section 2(xiia) of the Act and an article of food, to be called an article of primary food, must be a produce of agriculture or horticulture in its natural form. Synthetic vinegar cannot by any stretch of imagination be held to be a produce of agriculture or horticulture in its natural form. This contention must also hence fail. Crl.R.P. No.268 of 2002 5 10. A contention is urged that the petitioner is entitled to succeed in his defence under Section 19(2) of the Act. Firstly such a defence is not raised before the courts below. In fact, the crucial answer given in 313 examination clearly shows that the petitioner had no intention to contend that he had purchased the article from any duly licenced manufacturer. That is evident from the contention raised that some persons had delivered articles in his absence and they were hence available in the shop. A contention under Section 19 of the Act has not been raised nor is there material to substantiate such a contention. In fact the totality of circumstances even suggests that either the petitioner must be the manufacturer or he is attempting to shield such manufacturer. In these circumstances the plea raised before me now that the petitioner is entitled to succeed under Section 19(2) of the Act cannot be accepted. Of course, I note that identical label declarations are there and the name of an establishment is shown in such declaration. In the absence of a specific contention on the part of the petitioner that he had purchased the articles from such establishment specified in the identical label declaration on the sample bottles, the petitioner cannot be heard to raise a grievance now that he is entitled to a Crl.R.P. No.268 of 2002 6 defence under Section 19(2) of the Act and that the same has not been considered by the courts below. 11. The learned counsel for the petitioner contends that the right of the accused under Section 13(2) of the Act has been offended inasmuch as there was no precise specification of the court before which the complaint was filed. In this aspect, the counsel relies on Ext.D1 notification. The intimation under Section 13(2) of the Act only shows that a complaint was filed before the Judicial Magistrate of the First Class, Perinthalmanna. At the time when the sample was taken, there was only one Judicial Magistrate of the First Class at Perinthalmanna. Under Ext.D1, another Magistrate court was constituted at Perinthalmanna. Ext.D1 notification is dated 15.06.93; whereas the notice under Section 13(2) of the Act was served on the petitioner on 19.06.2003. The courts below had considered this. But they have come to the conclusion that the right of the accused under Section 13(2) of the Act cannot be said to be prejudiced by the non specification in the notice as to whether the complaint was filed before the newly constituted court or the court that was existent earlier. I concur with the conclusions of the courts below. There was only one court of the Judicial Magistrate of the First Court till 15.06.1993 and the mere fact Crl.R.P. No.268 of 2002 7 that it was not specified in the notice whether the complaint was filed before the Judicial Magistrate of the First Class-I or II at Perinthalmanna cannot in the facts and circumstances of this case be held to have prejudicially affected the petitioner or frustrated his right under Section 13(2) of the Act. Whether the right under Section 13(2) f the Act has been frustrated or not is a question of fact to be decided on the basis of the facts of each case. The conduct of the petitioner is relevant. He did not make any application before either court. Even after he entered appearance, he did not make any application before the court which had taken cognizance. I am satisfied that the courts below are absolutely correct in coming to the conclusion that the accused was not in any way prejudiced by the omission to specify whether the complaint was filed before the first or the second court. 12. I am satisfied, in these circumstances, that the challenge on merits about the impugned order cannot succeed. 13. Lastly and finally it is contended that the sentence imposed is excessive. Sentence of S.I for a period of 10 months and a fine of Rs.2,000/- is imposed by the courts below. I am satisfied that imposition of a mandatory minimum imprisonment of 6 months is sufficient in the facts and circumstances of this Crl.R.P. No.268 of 2002 8 case. The substantive sentence of imprisonment can hence be reduced from S.I for a period of 10 months to S.I for a period of 6 months. This petition can succeed only to the above extent. 14. In the result: i) This revision petition is allowed in part; ii) The impugned judgments are upheld in all other respects. But the substantive sentence of imprisonment is reduced from S.I for a period of 10 months to S.I for a period of 6 months. 15. Petitioner shall appear and his sureties shall produce him before the trial court on 02.05.09. Till then the sureties shall not be executed. If the petitioner does not so appear, needless to say, appropriate action under Section 446 Cr.P.C can be initiated against the petitioner and his sureties by the learned Magistrate. (R.BASANT, JUDGE) rtr/-