Testing the sample in a laboratory defined under Section 23(1-A)(ee) of the Prevention of Food Adulteration Act, 1954 is essential for a successful prosecution.

ORDER :

The revision petition is filed questioning the legality, propriety and correctness of the judgments in Crl.A.No.845/2010 of the Court of the Additional Sessions Judge, (Adhoc-I), Thrissur (Appellate Court) and C.C. No.88/2004 of the Court of the Judicial First Class Magistrate-I, Thrissur(Trial Court), finding the revision petitioner guilty for the offences under Section 7(iii) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, and read with Rule 50 of the PFA Rules(in short, ‘Act & Rules). The revision petitioner was the accused and the second respondent was the complainant before the Trial Court. For the sake of convenience, the parties are referred to as per their status before the Trial Court.

Prosecution case in brief:

2. On 25.09.2003, the first respondent/ complainant purchased 1½ Kgs of coconut oil from the shop owned by the accused. On an analysis of the sample, by Ext P12 Form III report of the Public Analyst, it was found that the sample was adulterated, because it did not confirm to the standards prescribed under the PFA Rules. The complainant further found that the samples were not labelled and sealed, as contemplated under the PFA Rules. Hence, the accused has committed the above offence.

3. The accused pleaded not guilty to the charges framed against him.

4. In the trial, PWs 1 to 5 were examined and Exts P1 to P20 were marked in evidence.

5. The learned Magistrate, after analysing the materials placed on record, found the accused guilty and convicted and sentenced him to undergo simple imprisonment for a period of six months and pay a fine of Rs.1,000/-, and in default to undergo simple imprisonment for a further period of one month.

6. Aggrieved by the said judgment, the accused preferred Crl.A. No.845/2010 before the Appellate Court.

7. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment dismissed the appeal and confirmed the conviction and sentence passed by the Trial Court.

8. It is challenging the concurrent judgments of the courts below, the revision petition is filed.

9. Heard; Sri. M.H. Hanil Kumar, the learned counsel appearing for the revision petitioner and Smt. Nima Jacob, the learned Public Prosecutor appearing for the respondents 1 &2.

10. The learned Counsel appearing for the revision petitioner placed reliance on the judgments of the Honourable Supreme Court in Pepsico India Holdings Pvt. Ltd v. Food Inspector and Another [2010 (4) KHC 767] and the Division Bench of this Court in Rasheed v. Food Inspector [2016 (2) KLT 390] and argued that since the sample was analysed in a laboratory not recognised by the Central Government as provided under Section 23(1-A)(ee) of the Act, the prosecution has to fail and the revision petitioner is to be acquitted. He submitted that without even going into merits of the other grounds urged, the revision petition is to be allowed.

11. The learned Public Prosecutor on the contrary contended that the decision in Pepsico India Holdings Pvt. Ltd. (supra) needs to be reconsidered, particularly because Section 8 of the Act enables the Central Government and the State Government to appoint a Public Analyst for the local areas as assigned by the Central Government and State Government. In the State of Kerala, Public Analysists have been appointed invoking the above provision. Therefore, the decision in Pepsico India Holdings Pvt. Ltd. (supra) has no application to the case on hand. Hence, the revision petition may be dismissed.

12. Is there any illegality, impropriety or irregularity in the impugned judgments.

13. The Hon’ble Supreme Court rendered the judgment in Pepsico India Holdings Private Ltd. (supra) on 18.11.2010. Subsequent to the pronouncement of the judgment, there were several cases filed before this Court to quash the proceedings initiated under the Act.

14. There was cleavage of opinion and divergent views taken by three learned Single Judges of this Court in interpreting the ratio decide