For a successful prosecution under the Prevention of Food Adulteration Act, food analysis must be conducted in a laboratory recognized under Section 23(1-A)(ee).

ORDER

The revision petition is filed questioning the legality and correctness of the judgments in Crl.A. No.522/2011 of the Court of Session, Ernakulam (Appellate Court) and ST No.4364/2006 of the Court of the Judicial First Class Magistrate-I, Perumbavoor (Trial Court), holding the revision petitioner guilty for the offences under Sec.2(ia) (a) 7(i) (v) read with Sec.16 (ia) (ii) of the Prevention of Food Adulteration Act, ( for brevity, PFA Act) 1954 read with Sec.32(e) (f) and 50 of the Prevention of Food Adulteration Rules ( for brevity, PFA Rules) and convicting and sentencing him for the above offences. The revision petitioner was the first accused and the 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. The prosecution case is that, on 22.2.2006, the Food Inspector, Perumbavoor Circle (the complainant), found the first accused engaged in selling food articles in a vehicle bearing registration No.KL-5B/3904 which belonged to the second accused. The Food Inspector purchased banana chips weighing 200 grams from the accused. On sending a sample for analysis to the Public Analyst, it was reported by Ext P12 Form III report that the sample was adulterated as it contained synthetic colour of tartrazine. Hence, the accused committed the above offences.

3. The accused pleaded not guilty to the substance of accusation read over to him.

4. The prosecution examined PWs 1 to 3 and marked Exts P1 to P23 in evidence. The accused examined DW1.

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

6. Aggrieved by the said judgment, the first accused filed Crl.A. No.522/2011 before the Appellate Court.

8. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, dismissed the appeal confirming the judgment of the Trial Court.

7. It is aggrieved by the concurrent judgments of the courts below, the revision petition is filed.

8. Heard; Sri. Jeswin P.Varghese, the learned counsel appearing for the revision petitioner and Smt.Nima Jacob, the learned Public Prosecutor appearing for the respondent – State.

9. The learned Counsel appearing for the revision petitioner placed reliance on the judgments of the Honourable Supreme Court inPepsico India Holdings Pvt. Ltd v. Food Inspector and Another [2010 (4) KHC 767] and the Division Bench of this Court inRasheed 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.

10. 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.

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

12. 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 Cour