MATHAI KURIAKOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) Heard counsel for revision petitioner and the Public Prosecutor.

(2.) Revision petitioner faced trial in the Court of learned Chief Judicial Magistrate, Kottayam in CC No. 125 of 1990 on a complaint preferred by the Food Inspector. Complaint was that the Food Inspector inspected the hotel allegedly run by the revision petitioner on 04/04/1990 at about 10.30 a.m. and purchased 600 ml of curd from the curd kept in that hotel in an aluminium vessel of 10 litre capacity. It was packed into three samples after following the procedure as per law and the sample packets were properly packed, sealed and labelled. One of the sample packets was sent for analysis to the public analyst who after analysis informed that it was adulterated. Food Inspector preferred complaint against the revision petitioner for offences punishable under S.7(i) read with S.16(1)(a)(i) of the Prevention of Food Adulteration Act (for short, 'the Act') and R.50(1) of the Prevention of Food Adulteration Rules (for short, 'the Rules'). Revision petitioner faced trial for the said offences, was found guilty under S.70(i) read with S.16(1)(a)(i) of the Act and sentenced to undergo simple imprisonment for six months and payment of fine of Rs.1,000/-. Revision petitioner carried the matter in appeal. Learned Additional Sessions Judge after considering the evidence found that conviction of the revision petitioner under S.16(1)(a)(i) of the Act is not sustainable but found him guilty under S.16(1)(a)(ii) of the Act and R.50(1) of the Rules and sentenced him to undergo simple imprisonment for three months and payment of fine of Rs.500/-. Aggrieved, revision petitioner has preferred this revision. It is contended by the counsel that revision petitioner was convicted by the learned Additional Sessions Judge for an offence for which he was acquitted by the learned Chief Judicial Magistrate. There was no revision or appeal against that acquittal by the State and hence learned Additional Sessions Judge was not correct in finding the revision petitioner guilty as stated above. Learned counsel placed reliance on the Gurudeth v. State of Kerala, 1988 KHC 675 : 1988 (2) KLT SN 37 :1990 Supp SCC 148 : 1990 SCC (Cri) 641 and Appasaheb v. State of Maharashtra, 2007 KHC 3443 : 2007 (4) KLT 463 (SC) : 2007 (1) KLJ 897 : AIR 2007 SC 763 : 2007 (9) SCC 721 .

(3.) There can be no dispute that for an offence for which revision petitioner was acquitted by the Trial Court, learned Additional Sessions Judge while hearing the appeal against conviction for another offence could not have found the revision petitioner guilty of the offence for which the Trial Court had acquitted him. Complaint preferred by the Food Inspector quoted the Section of offences as 17(i) and 16(1) of the Act (without describing sub clause in 16(1)(a) and R.50 of the Rules. It is not stated in the complaint that revision petitioner was running the hotel without licence but of course, in Ext. P11, letter issued by the Executive Officer of the Local Authority to the Food Inspector which was appended to the complaint the fact of revision petitioner doing business without licence is stated. Therefore, it cannot be stated that the absence of a positive statement in the complaint that the revision petitioner is doing business without licence is fatal. But, in the Court charge also there was no mention that revision petitioner was engaged in business without licence and cognizance was taken by the learned Chief Judicial Magistrate only for the offence under S.7(i) read with S.16(1)(a)(i) of the Act. It is important to note that while pronouncing judgment against the revision petitioner, learned Chief Judicial Magistrate had convicted the revision petitioner only for the offence under S.7(i) of the Act. Even if it is assumed that revision petitioner had faced trial for offence under S.7(i) of the Act read with R.50(1) of the Rules, no conviction was entered by the learned Chief Judicial Magistrate for that offence. If that be so, learned Additional Sessions Judge was not correct in finding the revision petitioner guilty for that offence. On that ground, conviction and sentence of the revision petitioner under S.7(i) read with S.16(a)(ii) of the Act read with R.50(1) of the Rules cannot stand and are liable to be set aside and I do so.