RAMESAN C Vs. P P GOPINATHAN ACHARI

JUDGEMENT

(1.) The revision petitioner was prosecuted by the first respondent Food Inspector, Changanacherry Circle in CC No. 36/1991 on the file of the Chief Judicial Magistrate, Kottayam, with an allegation that on 31/01/1991, when the first respondent inspected the bakery run by the revision petitioner in Building No. II / 196 at Kumaramcode in Puthuppally Panchayat, the revision petitioner was not possessing a licence under the Prevention of Food Adulteration Act and hence committed offence under S.7(iii) of the Prevention of Food Adulteration Act, 1954 read with R.50(i) of the PFA Rules framed thereunder.

(2.) After examining the first respondent as PW 1 under S.244 CrPC and marking documents, a charge was framed against the revision petitioner to which he pleaded not guilty when it was read over and explained under S.246 CrPC. Hence he was sent for trial. On the side of the prosecution, PWs 1 to 6 were examined and Exts. P1 to P10 were marked. During the course of cross examination of PWs 1 and 4, Exts. D1 to D3 were marked. Ext. D1 is a licence obtained in Form No. V as contemplated under the PFA Rules for stock and sale of food articles. Ext. D2 is the copy of application for issue of licence in Form No. II under the PFA Rules for manufacture of food articles and Ext. D3 is the licence obtained thereon issued after the inspection by the first respondent. The revision petitioner took up a defence that he had obtained due licence. The learned Magistrate on appraisal of the evidence arrived a finding that Ext. D1 licence in Form No. V produced by the revision petitioner in defence is for stock and sale of food articles. It was further found that Ext. D3 licence in Form No. II for the manufacture of food articles was applied on 31/03/1991 as evidenced by Ext. D2 and was obtained on the very same day. In the above circumstance, the learned Magistrate found that as on the date of inspection by the first respondent, the revision petitioner had no licence in Form No. II for the manufacture of food articles. On such conclusion, he was found guilty for the offences alleged, convicted thereunder and sentenced to simple imprisonment for six months and a fine of Rs.1,000/- with a default clause for simple imprisonment for ten days. Though he preferred Crl. Appeal No. 86/1996 before the Sessions Judge, Kottayam he was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed.

(3.) In the complaint it was alleged to the effect that when the first respondent inspected the shop, the revision petitioner was doing bakery busines. 600 gms. of maida was purchased and it was sampled in accordance with the rules. However, there is no case for PW 1 that the revision petitioner was doing manufacturing of food articles in the same building. Whereas, in pre - charge stage, he gave evidence to the effect that the revision petitioner had not obtained PFA licence. He had no case that the revision petitioner was manufacturing food products and for that he had not obtained licence in Form No. II, which is a licence for the manufacture of food products. As a result, no charge was also framed for not obtaining licence in Form No. II. The charge was to the effect that the revision petitioner had no licence, without specifying whether it is in Form No. II or V. During cross examination when confronted with Ext. D1, it was admitted that it is a PFA licence. Even thereafter also it was not stated that the revision petitioner was engaged in manufacturing process or that the licence intended was one in Form No. II. The finding of the Courts below that there was no licence in Form No. II for manufacturing is without any specific pleading and charge, that too without supporting evidence to the effect that the revision petitioner had been manufacturing food products in the building which was inspected by the first respondent. In the above circumstance, I find that the learned Magistrate as well as the Sessions Judge had gone wrong in finding that the revision petitioner is guilty for not obtaining licence in Form No. II for the manufacture of food products. When the statute mandates separate licences, one for manufacture in Form No. II and another for stock and sale in Form No. V and the prosecution being for want of licence, first respondent would have specified in the complaint as well as in evidence, as to what all activities, the revision petitioner had been doing in the premises and which of the licence he had not obtained. By simply stating that the revision petitioner had been doing bakery business, it could not presumed that the revision petitioner had been manufacturing food articles. When the allegation in the complaint and evidence are vague, always, the benefit shall go to the accused, here in this case, the revision petitioner. Since there is no mention in the complaint as well as in the charge sheet that there was no licence in Form No. II, the conviction and sentence under challenge are not sustainable for want of allegation and evidence and are liable to be set aside.