Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
&
MR. JUSTICE K.P.JYOTHINDRANATH
17TH DAY OF NOVEMBER 2015
Crl.Rev.Pet.No. 1814 of 2002
N.K.RASHEED,
Vs
THE FOOD INSPECTOR,
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 17TH DAY OF NOVEMBER 2015/26TH KARTHIKA, 1937
Crl.Rev.Pet.No. 1814 of 2002 ( )
---------------------------------
AGAINST THE JUDGMENT IN CRA 186/1997 of ADDL.SESSIONS JUDGE (ADHOC-I),
THALASSERY
AGAINST THE JUDGMENT IN STC 834/1992 of JUDICIAL FIRST CLASS
MAGISTRATE,THALASSERY
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
-------------------------------------------------------
N.K.RASHEED,
S/O.ERAMU, SUPER BAZAR, GROCERY SHOP
DOOR NO.18/112, T.C.ROAD, THALASSERRY.
BY ADVS.SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.T.P.SAJID
RESPONDENTS/COMPLAINANT & STATE:
-----------------------------------------------
1. THE FOOD INSPECTOR,
THALASSERY MUNICIPALITY, THALASSERY.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADGP SRI.TOM JOSE PANDIJAREKKARA
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-11-2015 ALONG WITH CRL.R.P.NO.1518 OF 2003 & CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003,
317 & 439 of 2004, 2594 of 2005
and
Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011,
1374 and 1391 of 2012, 2755 of 2013
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of November, 2015
O R D E R
C.T. Ravikumar, J.
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
2
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
3
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
4
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
5
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
6
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
7
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
8
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 17TH DAY OF NOVEMBER 2015/26TH KARTHIKA, 1937
Crl.Rev.Pet.No. 1814 of 2002 ( )
---------------------------------
AGAINST THE JUDGMENT IN CRA 186/1997 of ADDL.SESSIONS JUDGE (ADHOC-I),
THALASSERY
AGAINST THE JUDGMENT IN STC 834/1992 of JUDICIAL FIRST CLASS
MAGISTRATE,THALASSERY
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
-------------------------------------------------------
N.K.RASHEED,
S/O.ERAMU, SUPER BAZAR, GROCERY SHOP
DOOR NO.18/112, T.C.ROAD, THALASSERRY.
BY ADVS.SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.T.P.SAJID
RESPONDENTS/COMPLAINANT & STATE:
-----------------------------------------------
1. THE FOOD INSPECTOR,
THALASSERY MUNICIPALITY, THALASSERY.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADGP SRI.TOM JOSE PANDIJAREKKARA
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-11-2015 ALONG WITH CRL.R.P.NO.1518 OF 2003 & CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003,
317 & 439 of 2004, 2594 of 2005
and
Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011,
1374 and 1391 of 2012, 2755 of 2013
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of November, 2015
O R D E R
C.T. Ravikumar, J.
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
2
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
3
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
4
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
5
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
6
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
7
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
8
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 17TH DAY OF NOVEMBER 2015/26TH KARTHIKA, 1937
Crl.Rev.Pet.No. 1814 of 2002 ( )
---------------------------------
AGAINST THE JUDGMENT IN CRA 186/1997 of ADDL.SESSIONS JUDGE (ADHOC-I),
THALASSERY
AGAINST THE JUDGMENT IN STC 834/1992 of JUDICIAL FIRST CLASS
MAGISTRATE,THALASSERY
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
-------------------------------------------------------
N.K.RASHEED,
S/O.ERAMU, SUPER BAZAR, GROCERY SHOP
DOOR NO.18/112, T.C.ROAD, THALASSERRY.
BY ADVS.SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.T.P.SAJID
RESPONDENTS/COMPLAINANT & STATE:
-----------------------------------------------
1. THE FOOD INSPECTOR,
THALASSERY MUNICIPALITY, THALASSERY.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADGP SRI.TOM JOSE PANDIJAREKKARA
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-11-2015 ALONG WITH CRL.R.P.NO.1518 OF 2003 & CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003,
317 & 439 of 2004, 2594 of 2005
and
Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011,
1374 and 1391 of 2012, 2755 of 2013
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of November, 2015
O R D E R
C.T. Ravikumar, J.
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
2
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
3
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
4
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
5
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
6
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
7
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
8
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 17TH DAY OF NOVEMBER 2015/26TH KARTHIKA, 1937
Crl.Rev.Pet.No. 1814 of 2002 ( )
---------------------------------
AGAINST THE JUDGMENT IN CRA 186/1997 of ADDL.SESSIONS JUDGE (ADHOC-I),
THALASSERY
AGAINST THE JUDGMENT IN STC 834/1992 of JUDICIAL FIRST CLASS
MAGISTRATE,THALASSERY
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
-------------------------------------------------------
N.K.RASHEED,
S/O.ERAMU, SUPER BAZAR, GROCERY SHOP
DOOR NO.18/112, T.C.ROAD, THALASSERRY.
BY ADVS.SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.T.P.SAJID
RESPONDENTS/COMPLAINANT & STATE:
-----------------------------------------------
1. THE FOOD INSPECTOR,
THALASSERY MUNICIPALITY, THALASSERY.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADGP SRI.TOM JOSE PANDIJAREKKARA
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-11-2015 ALONG WITH CRL.R.P.NO.1518 OF 2003 & CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003,
317 & 439 of 2004, 2594 of 2005
and
Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011,
1374 and 1391 of 2012, 2755 of 2013
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of November, 2015
O R D E R
C.T. Ravikumar, J.
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
2
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
3
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
4
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
5
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
6
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
7
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
8
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
Provided that consultation with the Committee may be
dispensed with if the Central Government is of the opinion
that circumstances have arisen which render it necessary to
make rules without such consultation, but, in such a case,
the Committee shall be consulted within six months of the
making of the rules and the Central Government shall take
into consideration any suggestions which the Committee
may make in relation to the amendment of the said rules.
(1-A) In particular and without prejudice to the
generality of the foregoing power, such rules may provide
for all or any of the following matters,namely:
(a) specifying the articles of food or classes of food for
the import of which a license is required and prescribing the
form and conditions of such license, the authority
empowered to issue the same [the fees payable therefor, the
deposit of any sum as security for the performance of the
conditions of the license and the circumstances under which
such license or security may be cancelled or forfeited] ;
(b) defining the standards of quality for, and fixing the
limits of variability permissible in respect of any article of
food;
(c) laying down special provisions for imposing
rigorous control over the production, distribution and sale
of any article or class of articles of food which the Central
Government may, by notification in the Official Gazette,
specify in this behalf including registration of the premises
where they are manufactured, maintenance of the premises
in a sanitary condition and maintenance of the healthy state
of human beings associated with the production,
distribution and sale of such article or class of articles;
(d) restricting the packing and labelling of any article
of food and the design of any such package or label with a
view to preventing the public or the purchaser being
deceived or misled as to the character, quality or quantity of
the article or to preventing adulteration;
(e) defining the qualifications, powers and duties of
Food Inspectors and public analyst;
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
34
(ee) defining the laboratories where samples of
articles of food or adulterants may be analysed by public
analysts under this Act;
(f) prohibiting the sale of defining the conditions of
sale of any substance which may be injurious to health when
used as food or restricting in any manner its use as an
ingredient in the manufacture of any article of food or
regulating by the issue of licenses the manufacture or sale
of any article of food;
(g) defining the conditions of sale or conditions for
license of sale of any article of food in the interest of public
health;
(h) specifying the manner in which containers for
samples of food purchased for analysis shall be sealed up or
fastened up;
(hh) defining the methods of analysis;
(i) specifying a list of permissible preservatives, other
than common salt and sugar, which alone shall be used in
preserved fruits, vegetables or their products or any other
article of food as well as the maximum amounts of each
preservative;
(j) specifying the colouring matter and the maximum
quantities thereof which may be used in any article of food;
(k) providing for the exemption from this Act or of any
requirements contained therein and subject to such
conditions, if any, as may be specified, of any article or class
of articles of food;
(l) prohibiting or regulating the manufacture,
transport or sale of any article known to be used as an
adulterant of food;
(m) prohibiting or regulating-
(i) the addition of any water, or other diluent or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
35
adulterant to any article of food;
(ii) the abstraction of any ingredient from any article
of food;
(iii) the sale of any article of food to which such
addition or from which such abstraction has been made or
which has been otherwise artificially treated;
(iv) the mixing of two or more articles of food which
are similar in nature or appearance;
(n) providing for the destruction of such articles of
food as are not in accordance with the provisions of this Act
or of the rules made thereunder.
(2) Every rule made by the Central Government under
this Act shall be laid as soon as may be after it is made
before each House of Parliament while it is in session for a
total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before
the expiry of the session immediately following the session
or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses agree
that the rule should not be made, the rule shall thereafter
have effect only in such modified form or be of no effect, as
the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that rule.
17. Bearing in mind the various decisions referred
supra and also the provisions of law referred hereinbefore
we will consider the question what exactly is the dictum laid
down by the Hon'ble Apex Court in Pepsico's case (supra).
The best way to reach out to the same, is to refer to the
decision in Pepsico India Holdings (P) Ltd. v. Food
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
36
Inspector [2009 (2) KLT 69] (for short Pepsico India
Holdings' case only) rendered by a learned Judge of this
court from which the decision of the Hon'ble Apex Court in
Pepsico's case (supra) arose. It is relevant to extract
paragraph 5 in the said decision and it reads thus:
5. The learned counsel for the petitioners submits that the
cognizance taken against the petitioners is totally unjustified
and prays for invocation of the extraordinary inherent
jurisdiction under S. 482 Cr.P.C. to quash the prosecutions
against the petitioners on the following six specific grounds:
(1) No rules having been framed at the relevant time under
S. 23 (1a) (ee) of the Act by the Central Government
defining the laboratories where samples of articles of
food or adulterants may be analysed by the Public
Analysts under this Act, the Public Analysts who have
submitted the relevant reports in all these prosecutions
cannot be held to have complied with the law and
therefore their reports are liable to be eschewed and
ignored.
(2) No methods of analysis having been defined under S. 23
(1a) (hh) of the Act by the Central Government, the
reports submitted by the Public Analysts by following
whatever methods they thought to be appropriate are not
valid and correct and cannot be accepted at all - even at
this stage.
(3) At any rate, there are no validated methods of analysis
identified by the scientists so far to ascertain the
percentage pesticide residue present in a carbonated
beverage (i. e. , a complex matrix article) and therefore
the reports of the Public Analysts cannot be reckoned as
legally acceptable to found prosecutions against the
petitioners.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
37
(4) The Public Analysts in the reports issued by them have
not specifically opined that the presence of pesticide
residue at the levels detected by them is injurious to
health and consequently their conclusion that the article
is adulterated under S. 2 (ia) (h) of the Act cannot be
legally taken cognizance of.
(5) Even assuming that the Public Analysts in their reports
have opined that the presence of pesticide residue at the
levels detected by them are injurious to health, their
opinion that the presence of pesticide residue at that
level renders the articles injurious to health under S. 2
(ia) (h) of the Act is perverse and cannot be accepted -
even at this stage.
(6) At any rate, in the light of the decision in S. M. S.
Pharmaceuticals Ltd. v. Neeta Bhalla, (2005 (4) KLT 209
(SC)), the indictees who are only Directors of the
Company and against whom no better or specific
allegations are raised are not liable to face prosecution.
It is those grounds which were considered by the learned
Single Judge while rendering the decision in Pepsico India
Holdings' case (supra). Ground No.1 and 2 extracted above
would reveal that they relate to non-framing of the rules as
enabled under Section 23 (IA) (ee) and (hh) of the Act.
Evidently after considering the rival contentions it was held
by the learned Single Judge that the provisions under
Section 23 (IA) (ee) and (hh) are only enabling provisions
and not provisions which are mandatory in nature and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
38
further it was held that in such circumstances non-
formulation of rules under Section 23 (IA) (ee) and (hh)
could not be held fatal to the prosecution. Virtually,
contentions raised under ground 3, 4, 5 as extracted above,
in that case were resisted by the learned Public Prosecutor
contending that the petitioners therein, who are indictees,
did not choose to take resort to the valuable right available
under Section 13 (2)of the PFA Act. Evidently the further
contention was that an indictee who had not chosen to
invoke such a valuable right conferred on him could not
seek for premature termination of the prosecution seeking
invocation of the extra ordinary jurisdiction under Section
482 Cr.P.C. It is the decision rendered by the learned Single
Judge after considering grounds 1 to 6 as extracted above
that was taken up before the Hon'ble Apex Court which
ultimately culminated in Pepsico's case supra. As far as this
bunch of cases are concerned, their fate would depend upon
the answers to the question as to what is the ratio decidendi
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
39
of the decision in Pepsico's case (supra). It is in this context
that the fact that the learned Judge in Pepsico India
Holdings' case held that the provisions under Section 23
(IA) (ee) and (hh) are only enabling provisions and are not
mandatory and that the said findings were reversed by the
Hon'ble Apex Court in Pepsico's case (supra) assumes
relevance. Paragraph 27 in Pepsico's case (supra) reads
thus:-
"Sri. K N Bhat learned Senior Advocate who
appeared for the State of Kerala contended that
Section 23 of the 1954 Act though empowered the
Central Government to make rules to, inter alia,
define the laboratories where samples of articles of
food could be analysed by public analyst under the
Act as also to define the method of analysis under
sub Section 23 (IA) (ee) and (hh), the said power is
only discretionary and it was for the Central
Government act on the basis thereof. It was
further contended that non formulation of Rules
under Section 23 (IA) (ee) and (hh) for analysis of
beverages could not be construed as fatal to the
prosecution".
Evidently, referring to paragraph 37 of the decision in
Pepsico's case the learned ADGP contended that the width
of the dispute involved in Pepsico's case was only related to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
40
sweetened carbonated water and therefore the, decision in
Pepsico's case could not be understood as a binding
precedent in respect of other food items. Paragraph 37 of
the decision in Pepsico's case reads thus:
From the submissions made on behalf of the
respective parties, it is apparent that the width of the
dispute to be settled in these Appeals is not very wide. We
are only required to consider as to whether the presence
of 0.001 mg of Carbofuran per litre found in the
sweetened carbonated water, manufactured by the
Appellant-Company, can be said to be adulterated as per
Rule 65 of the 1955 Rules and under Section 2(ia)(h) of
the 1954 Act, particularly in the absence of any validated
standard of analysis provided for under the 1954 Act or
1955 Rules.
True that to support the said contention paragraph 39 and
40 thereunder were also brought to our notice. At the same
time, the relevant aspect to be noticed is that after
considering the rival contentions the findings of this Court
in Pepsico India Holding's case was virtually summarised
by the Hon'ble Apex Court in paragraph 41 thus:
The High Court summarised its view into several grounds
of challenge. Grounds 1 and 2 relate to the non-framing of
Rules under Section 23(1-A) (ee) and (hh) of the 1954 Act.
Grounds 3, 4 and 5 deal with the challenge thrown on
behalf of the Appellants to the submissions that the report
of the Public Analyst was not final and that the same could
be challenged under Section 13(2) of the said Act. Ground
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
41
6 deals with the criminal liability of the Directors of the
Company on account of the allegations against the
Company.
Going by the same it is evident that the Hon'ble Apex Court
found that this court summarised its view into several
grounds of challenge and further found that ground 1 & 2
relate to the non framing of Rules under Section 23(1-A)
(ee) and (hh) of the 1954 Act and grounds 3 to 5 deal with
the challenge thrown on the behalf of the appellants therein
to the submissions that a report of the public analyst was
final and the same could have been challenged under
Section 13 (2) of the said Act. It further held in paragraphs
44 & 45 thus:
44. The High Court also misconstrued the provisions of
Section 23(1-A)(ee) and (hh) in holding that the same were
basically enabling provisions and were not mandatory and
could, in any event, be solved by the Central Government by
framing Rules thereunder, by which specified tests to be
held in designated Laboratories could be spelt out.
Consequently, the High Court also erred in holding that the
non- formulation of Rules under the aforesaid provisions of
the 1954 Act could not be said to be fatal for the
prosecution.
45. As far as Grounds 3, 4 and 5 are concerned, the High
Court failed to consider the reasons given on behalf of the
Appellants for not sending the Company's sample to the
Forensic Laboratory, to the effect that, since neither any
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
42
validated method of analysis had been prescribed under
Section 23(1- A)(ee) and (hh) of the 1954 Act, nor had any
Laboratory been particularly specified for such examination,
such an exercise would have been futile. In our view, no
useful purpose could have been served by sending the
second sample to the Forensic Laboratory, unless a defined
tolerance limit of the presence of the pesticides was
available in regard to sweetened carbonated water. It may
be noted that the High Court had itself observed that mere
presence of insecticide residue to any extent could not
justify an allegation that the article of food was adulterated,
but contrary to such observation, the High Court went on to
hold that the sweetened carbonated water manufactured by
the appellants was adulterated within the meaning of
Section 2(ia)(h) of the 1954 Act.
Paragraph 45 thereunder would reveal that the Hon'ble
Apex Court found that the High Court failed to consider the
reasons given on behalf of the appellants for not sending
the Company's sample to the forensic laboratory, viz.,
neither any validated method of analysis had been
prescribed under Section 23 (I-A) (hh) and no laboratory
was specified for such examination under Section 23 (IA)
(ee). It was in that context the Hon'ble Apex Court held that
no fruitful purpose could have been served by sending the
second sample to the forensic laboratory. Thus it is evident
that in Pepsico India Holding's case a learned Judge of this
Court held that the provision under Section 23 (I-A) (ee) and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
43
(hh) are only enabling provisions and are not mandatory
and in such circumstances non-formulation of rules under
Section 23(1A) (ee) and (hh) could not be held fatal to the
prosecution. But, the Hon'ble Apex Court categorically
found that the High Court has erred in holding that non-
formulations of provisions under the 1954 Act could not be
said to be fatal to the prosecution. As regards the nature of
the provision under Section 23 (IA) (ee) and (hh) are
concerned the findings of this Court in Pepsico's case that
they are only enabling provisions and are not mandatory
were reversed by the Hon'ble Apex Court holding that this
Court misconstrued them. When the Hon'ble Apex court
held that the provisions under the Section 23 (I-A) (ee) and
(hh) are not directory in nature these provisions which are
not directory shall have to be taken only as mandatory in
nature. True that such a finding was arrived at, while
dealing with a case where the item of food involved was
sweetened carbonated water. Merely because the item of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
44
food involved in that case is sweetened carbonated water
and at that point of time its tolerance limit was not
prescribed they cannot be taken as reasons for holding that
the decision of the Hon'ble Apex Court that the said
provision are not directory has to be confined only in
respect of the food item sweetened carbonated water. As
held by the Hon'ble Apex Court in Islamic Academy of
Education's case to find out the ratio decidendi of Pepsico's
decision the entire judgment has to be read. We have
already dealt with it. Evidently, the Hon'ble Apex Court
considered the provisions under Section 23 (1A) (ee) and
(hh) and held that this Court in 'Pepsico India Holding's
case' has misconstrued the provisions of Section 23 (1A)
(ee) and (hh) in holding that they are basically enabling
provisions and are not mandatory. It was also held that this
Court also erred in holding that the non-formulation of
Rules under the aforesaid provisions of 1954 Act could not
be said to be fatal for the prosecution. It is also very
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
45
relevant to note that the Hon'ble Apex Court has also held
that this court failed to consider the reasons given on behalf
the appellants therein for not sending to the
company's sample to the forensic laboratory. Evidently, the
Hon'ble Apex Court further observed that such an exercise
viz; by sending the second sample to the Forensic
Laboratory, would have been only futile as neither any
validated method of analysis had been prescribed nor any
laboratory had been particularly specified for such
examination. When such reasonings form the basis for
interfering with the findings of this Court in Pepsico India
Holding's case in respect of sweetened carbonated water,
how can it be said that those reasonings are confined only
to sweetened carbonated water and not applicable to any
other food items. It is also to be noted that by no stretch of
imagination it can be said that those provisions are
applicable only in respect of sweetened carbonated water
and are unrelated to other food items. As held by the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
46
Hon'ble Apex Court in the absence of any other additional
or different fact which could make a world of difference the
same principle cannot be applied differently. When a
learned Single Judge's finding that the provision under
Section 23 (1A) (ee) and (hh) are only enabling provisions
and are not mandatory was held as misconstructions of
these provisions and the further finding that non-
formulation of the Rules under Section 23 (1A) (ee) and (hh)
could not be said to be fatal for the prosecution was held as
erred decision by the Hon'ble Apex Court and how can
another Bench of this Court, whatever be strength,
maintain, virtually, the same views by distinguishing the
Apex Court decision or refrain from following the Apex
Court's decision when it is cited. In our considered view the
decision that those provisions cannot be said to be directory
the Hon'ble Apex Court is to be applied in all cases
wherever a report of a public analyst in respect of an item
of food as adulterated has to form the basis for prosecution.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
47
Needless to say that such cases when the analysis that
culminated in the report was made from a laboratory which
was not a defined one in terms of Section 23 (1A) (ee) of the
Act applying the ratio in Pepsico's case the failure to
conduct it from a defined laboratory has to held as fatal to
the prosecution. It is also to be noted that no such
laboratories were defined while 'the Act' was in force or in
other words till the Act was repealed. As held by the
Hon'ble Apex Court in Fuzlunbi's case whether the earlier
decision of the Apex Court is altogether unpalatable and to
be interpreted narrowly by following the known devices is
an area permissible to be resorted only by the Hon'ble Apex
Court and as far as the High Courts are concerned once
such earlier decision was cited it is impermissible to deviate
from it not merely because of the jurisprudence of
precedence, but also because the mandate under Article
141 of the Constitution of India. On scanning of the
decision of the Hon'ble Apex Court in Pepsico's case (supra)
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
48
we can only arrived at the conclusion that there is a
declaration binding under Article 141 of the Constitution of
India to the effect that the provisions under Section 23 (I-A)
(ee) and (hh) are not directory. If it is not directory it can
only be mandatory. In such circumstances when once the
Hon'ble Apex Court held as above the respondents cannot
be heard to contend that the said provisions are virtually
directory in nature. The upshot the discussion makes us to
hold that the decision in Tito Varghese's case (supra)
cannot be said to be correctly decided inasmuch as it
cannot be said that the decision in Pepsico's case is only
binding precedent as regards the food article 'sweetened
carbonated water'.
18. Bearing in mind the fact that the Hon'ble Apex
Court in Pepsico's case (supra) held that the provisions
under Section 23 (I-A) (ee) and (hh) are not directory and
that this court has erred in holding that they are only
enabling provisions we will proceed further to answer the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
49
referred questions. For answering the terms of reference a
broad understanding of the said declaration is necessary.
When once the Hon'ble Apex Court held that the said
provisions are not directory and the failure to adhere to the
provisions cannot be said to be not fatal to the prosecution
it has to be understood and applied in all cases where a
public analyst was to carry out an analysis and to give a
report to form the basis for launching the prosecution.
Thus, evidently, for that purpose the report should be one
made after conducting an analysis in a laboratory defined
under Section 23 (I-A) (ee). It is to be noted that after the
decision in Pepsico's case (supra) by the Hon'ble Apex Court
a notification was followed whereby rule in relation to
Section 23 (I-A) (hh) was framed as Rule 4 (9) of the PFA
Rules. Thus, in the light of Pepsico's case (supra) in order
to be reliable and to be taken the basis for the purpose of
launching prosecution a report by a public analyst must be
one made after conducting an analysis in a laboratory
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
50
defined under Section 23 (I-A) (ee) of the Act. In that
context the indisputable common case is that till the
repealing of 1954 Act no laboratory was defined in terms of
the provision under Section 23 (I-A) (ee). If that be so,
there could not have been any question of conducting an
analysis by a public analyst under the PFA Act in a
laboratory defined under Section 23 (I-A) (ee) of the PFA
Act. In view of the above findings and conclusions we will
answer the questions referred.
First question referred is as follows:
(1) Could all the prosecutions under the Act of 1954 be stifled
by raising a contention that the laboratories or methods of
analysis were not defined?
In the light of what we have held herein before the said it
can only be answered in the following manner:
Wherever an analysis has to be conducted from a
laboratory to find whether the particular sample of item of
the particular food article is adulterated, to form the basis
for initiation of prosecution under the PFA Act the report of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
51
the analyst in relation to that sample must be one
conducted in a laboratory defined under Section 23 (IA-)
(ee). Since no such laboratory was defined till the repealing
of the PFA Act wherever an analysis from a laboratory was
inevitable for making a report regarding item concerned as
adulterated there cannot be any successful prosecution in
the absence of such a report. In such circumstances the
prosecution proceedings have to be terminated for the
failure to define laboratories in terms of Section 23 (IA-)
(ee) and the consequential failure to conduct an analysis of
the particular sample by the public analyst from such a
laboratory. In other words taking note of the nature of the
food article involved and the method to be employed to find
out the adulteration if an analysis from a laboratory is not at
all required in such circumstances the prosecution cannot
be stifled on the ground that the laboratories in terms of
provisions under Section 23 (IA) (ee) were not defined. It
cannot be said that all the prosecutions under the 1954 Act
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
52
should be stifled owing to the failure to define laboratories
in terms of Section 23 (I-A) (ee) as there may be cases
registered against persons for contravention of the
provisions under Section 16 (1) (c), 16 (1) (d) and 14A
(Prevention of Food Adulteration Act, 1954). So also a case
where the article in food was lifted and sent for analysis
prior to the introduction of the provisions under Section 23
(I-A) (ee) viz 1.4.1976 cannot be stifled as anything
previously done could not be invalidated owing to the failure
to define laboratory in terms of Section 23 (I-A) (ee) in view
of the provisions under Section 23 (2). In the context of the
term of reference No.1 it is to be noted that subsequent to
Pepsico's case (supra) the method of analysis was, in fact,
defined and it was brought into by incorporating Rule 9 (4)
in the PFA Rules with effect from 25.3.2008.
19. The second question referred is as hereunder:
(2) Is it proper to hold that since Central Government has not
taken steps to effectuate Sec.23(1A) (ee) and (hh) of the Act
of 1954, no prosecution will lie under the Act of 1954 even if
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
53
it is established that the standards prescribed for various
food items have been flouted?
In respect of items of food articles where, for holding that
the standard prescribed for the same was flouted or it was
not maintained if an analysis from a laboratory is inevitable
in such cases also if the analysis was conducted by the
public analyst under the PFA Act in a laboratory not defined
in terms of Section 23(1A) (ee), in the light of Pepsico's
decision, no prosecution will lie based a report made after
such an analysis.
The last question referred is follows:
(3). Whether the ratio in Pepsico's case (supra) can be applied
to all cases of alleged food adulteration under the Act of 1954
irrespective of the fact whether or not standards have been
prescribed for food items?
In cases where standard is prescribed or in respect of a
food item to say that the said item of food is adulterated and
to launch the prosecution, if an analysis from a laboratory
by a public analyst is inevitable in such circumstances also
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
54
the ratio in Pepsico's case (supra) will be applicable. In the
light of the answers to the referred questions it has become
absolutely unnecessary to go into the question referred
herein before based on the decision in Narayana Reddiar's
case which was declined to be referred.
20. Having answered the reference as above, we are
of the view that the fate of the criminal revision petitions
and the Crl.M.Cs. depend upon the question whether in
respect the item of food involved in individual cases, the
sample of which was collected, an analysis from a
laboratory is required or not for holding the same as
adulterated. If the answer is in the affirmative necessarily
in the absence of a report made after an analysis from a
laboratory defined in terms of the provisions under Section
23 (I-A) (ee) there can be no successful prosecution. We
will therefore, consider the individual cases in the aforesaid
manner and in the light of the answers to the referred
questions. Needless to say that if the answer to the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
55
aforesaid question in respect of a particular case is in the
negative there can be no legal impediment in continuing
with the prosecution. In view of the fact that till the
repealing of the said Act no laboratories were defined in
terms of Section 23 (I-A) (ee) all those cases have to be
decided based on a consideration as aforesaid.
Crl.R.P.No.1814 of 2002
21. This criminal revision petition is filed against the
judgment in Crl.Appeal No.186 of 1997 passed by the Court
of Additional Sessions Judge (Adhoc-I), Thalasserry
confirming the conviction and sentence passed by the Court
of Judicial First Class Magistrate, Thalasserry in S.T.No.834
of 1992.
22. The item of food article involved in this case is
'Ragi' and the standard therefor, is prescribed under
Appendix B-A.18.06. The sample was lifted on 6.2.1992.
Evidently, on a complaint filed based on Ext.P13 report of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
56
the public analyst cognizance was taken. True that Ext.P13
was superseded by Ext.P14 report of the Central Food
Laboratory based on an application filed by the revision
petitioner under section 13(2) of the PFA Act. Going by
Ext.P13 report, the result of analysis was as follows:-
Moisture : 8.8 percent
Foreign matter : Absent
Other edible grains : Absent
Weevilled grains : Absent
Damaged grains : Absent
Test for coaltar dyes : Positive
Coaltar dye-Carmoisine
(Colour Index 14720) : Present
23.The opinion of the public analyst was that the
sample analysed contained Coaltar dye-Carmoisine and
therefore, adulterated. Going through the provisions under
Rules 23 and 29 of the PFA Rules, it is evident that in the
article of food mentioned above, the use of Coaltar dye-
Carmoisine is impermissible. Evidently, in this case the
presence of Coaltar dye-Carmoisine is detected based on an
analysis conducted not in a laboratory as defined under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
57
section 23(1A)(ee) of the PFA Act. In the light of the dictum
laid down by the Hon'ble Apex Court in Pepsico India
Holdings Pvt.Ltd v. Food Inspector [2010 (4) KLT 706
(SC)], as long as a report of public analysis is one prepared
not from a laboratory defined in terms of the provisions
under section 23(1A)(ee) of the PFA Act, it cannot be a basis
for a prosecution. In such circumstances, when the
indisputable position obtained in this case is that Ext.P13
report based on which the complaint was filed was not a
report prepared based on an analysis conducted by a
laboratory defined in terms of section 23(1A)(hh) the trial
court could not have taken cognizance based on such a
complaint. In such circumstances, this revision petition is
liable to succeed and accordingly, it is allowed. The
judgment in Crl.Appeal No.186 of 1997 passed by the Court
of Additional Sessions Judge (Adhoc-I), Thalasserry and the
judgment passed by the Court of Judicial First Class
Magistrate, Thalasserry in S.T.No.834 of 1992 are set aside.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
58
The bail bond stands cancelled.
Crl.R.P. No.1518 OF 2003
24. This criminal revision petition is filed against the
judgment in Crl.Appeal No.98 of 2000 passed by the Court
of Session, Manjeri confirming the conviction and sentence
passed by the Court of Judicial First Class Magistrate,
Ponnani in S.T.No.3272 of 1991.
25. The item of food article involved in this case is
gingelly oil and the standard therefor, is prescribed under
Appendix B.A.17.11. The sample was lifted on 22.10.1991.
Evidently, at that point of time, neither the laboratory in
terms of the provisions under section 23(1-A)(ee) nor the
method of analysis in terms of the provisions under section
23(1-A)(hh) were defined by the Central Government.
Ext.P10 is the report of the public analyst. True that it was
superseded by Ext.P11 report based on an application filed
by the revision petitioner under section 13(2) of the PFA
Act. The trial court took cognizance on the complaint based
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
59
on Ext.P10 report. Based on the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt.Ltd v. Food
Inspector [2010 (4) KLT 706 (SC)], a report of a public
analyst in order to be reliable and to form the basis for
prosecution, must be one based on an analysis conducted
from a laboratory defined in terms of the provisions under
section 23(1-A)(ee) after following the prescribed method
under section 23(1-A)(hh). It is common case that Ext.P10
is not such a report. Indisputably, till the repealing of PFA
Act, no such laboratories were defined. In such
circumstances, in terms of the dictum laid down by the
Hon'ble Apex Court in Pepsico's case to the effect that the
provisions under section 23(1-A)(ee) is mandatory, the trial
court could not have taken cognizance on the complaint
based on Ext.P10 report. In short, this revision petition is
liable to be allowed. Accordingly, it is allowed. The
judgment in Crl.Appeal No.98 of 2000 passed by the Court
of Session, Manjeri and the judgment passed by the Court of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
60
Judicial First Class Magistrate, Ponnani in S.T.No.3272 of
1991 are set aside. The bail bond stands cancelled.
Crl.R.P. No.1665 OF 2003
26. This criminal revision petition is filed against the
judgment in Crl.Appeal No.388 of 1998 passed by the
Additional Sessions Judge (Fast Track Court-I),
Thiruvananthapuram confirming the conviction and
sentence passed by the Court of Judicial First Class
Magistrate, Attingal in C.C.No.436 of 1993.
27. The item of food article involved in this case is 'rose
rice' and the standard therefor is prescribed under
Appendix B.A.18.06.04. The sample was lifted on
25.11.1992. Ext.P14 is the report of the public analyst
based on which the complaint was filed. The result of
public analysis is as follows:-
Moisture:(obtained by heating the
pulverised grains at 130:C-133:C for two
hours)-12.9 percent.
Foreign matter-Coating of Kavi (Red
Ochre):Present.
Damaged grains:Absent
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
61
Weevilled grains:Absent
Iron as Fe2O3 arising as a result of
coating of kavi:35.8 milligrammes per
1000 grammes.
28. Though Ext.P14 was subsequently superseded by
Ext.P17 report of the Central Food Laboratory, it is evident
that in this case, for finding out the sample of item of food
whether adulterated or not, an analysis from a laboratory
was conducted. In fact, a scanning of Ext.P14 report itself
would reveal that for finding the sample was adulterated for
the reasons stated therein an analysis from a laboratory was
inevitable and in fact, it was conducted by the public
analyst which culminated in Ext.P14 report. We have found
that the basis of complaint is the report of the public analyst
and evidently, for finding whether the sample of an item of
food the sample of which was collected on 25.11.1992 was
adulterated or not, the public analyst had conducted
analysis from a laboratory and Ext.P14 is its report. It is
evident that an analysis from a laboratory was inevitable to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
62
find out whether the sample of food taken in this case was
adulterated or not. But, in the light of the decision in
Pepsico India Holdings Pvt.Ltd v. Food Inspector
[2010 (4) KLT 706 (SC)], such a report must have been
one prepared by a public analyst after conducting an
analysis in a laboratory defined in terms of the provisions
under section 23(1-A)(ee) after following the prescribed
method under section 23(1-A)(hh). Indisputably, till the
repealing of PFA Act, no such laboratories were defined. In
such circumstances, in terms of the dictum laid down by the
Hon'ble Apex Court in Pepsico's case to the effect that the
provisions under section 23(1-A)(ee) is mandatory, the trial
court could not have taken cognizance on the complaint
based on Ext.P14 report. In short, this revision petition is
liable to be allowed. Accordingly, it is allowed. The
judgment in Crl.Appeal No.388 of 1998 passed by the Court
of Additional Sessions Judge, Thiruvananthapuram and the
judgment passed by the Court of Judicial First Class
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
63
Magistrate-I, Attingal in C.C.No.436 of 1993 are set aside.
The bail bond stands cancelled.
Criminal R.P.No.2173 of 2003
29. This criminal revision petition is filed against the
judgment in Crl.A.No.7/1997 dated 26.7.2003 passed by the
Court of Additional District and Sessions Judge (Adhoc)
Court-I, Pathanamthitta confirming the order of conviction
passed by the Court of Judicial First Class Magistrate,
Ranny in C.C.No.485/1995.
30. The article of food involved in this case is 'bengal
gram' (Cicer arietinum Linn). Appendix B-A.18.06.08 of the
PFA Rules. Evidently in this case Ext.P18 is the report of
the public analyst. A perusal of the same would reveal that
after the analysis it was reported that the presence of uric
acid in the sample was 400 gm per kilogram. The sample
was collected on 18.1.1992. Indisputably, as on 23.02.1995
no laboratories in terms of the provisions under Section 23
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
64
(1-A) (ee) were defined. So also the method of analysis in
terms of Section 23 (1A) (hh) was also not defined.
Evidently, in this case in such circumstances the public
analyst must have conducted the analysis from a laboratory
not defined in terms of Section 23 (1-A) (ee) without
following any defined method. True that in this case after
receiving the report of the public analyst the sample was
sent for analysis from the Central Food Laboratory. But, in
the light of the dictum laid down by the Hon'ble Apex Court
in Pepsico's case taking into account the fact that there
was no report by the public analyst after conducting an
analysis in a laboratory defined under Section 23 (1-A) (ee)
following the method of analysis prescribed under 23 (1A)
(hh) cognizance could not have been taken in this case.
When that be the circumstances, the impugned judgement
invites interference and this revision petition is liable to be
allowed.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
65
31. No doubt, for determining the question whether
the presence of uric acid is beyond the prescribed limit, an
examination in a laboratory by a public analyst is inevitable
and, but at the same time, in this case it was conducted not
in a laboratory defined under Section 23 (1-A) (ee).
32. In the said circumstances, this criminal revision
petition is allowed and the judgement in Crl.A.No.7/1997
dated 26.7.2003 passed by the Court of Additional District
and Sessions Judge (Adhoc) Court-I, Pathanamthitta
confirming the order of conviction and the judgement in
C.C.No.485/1995 passed by the Court of Judicial First Class
Magistrate, Ranny are set aside. The bail bond stands
cancelled.
Crl.R.P. No.2511 of 2003
33. This criminal revision petition is filed by the second
accused in S.T.No.3881 of 1997 on the files of the Court of
Judicial First Class Magistrate, Kunnamkulam. He was
tried for various offences under the Prevention of Food
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
66
Adulteration Act, 1955 (for short the 'PFA Act') read with
different rules under the Prevention of Food Adulteration
Rules (for short the 'PFA Rules') along with the first accused
therein. Feeling aggrieved by his conviction as also the
acquittal of the revision petitioner herein/second accused
therein, the first accused preferred Crl.A.No.330 of 2000
and Crl.R.P.No.63 of 2000 before the Court of III Additional
Sessions Judge (Adhoc) Fast Track Court No.I, Thrissur. In
fact, Crl.R.P.No.63 of 2000 was filed by the first accused in
S.T.No.3881 of 1997 against the order of acquittal of the
revision petitioner herein/second accused. The said appeal
and the revision petition were jointly heard and the learned
Sessions Judge, by a common judgment, allowed the appeal
and the order of conviction passed against the second
accused by the learned Magistrate was set aside and he was
acquitted. But at the same time, the learned Sessions Judge
allowed the revision petition and the acquittal of the
revision petitioner/second accused was set aside and the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
67
case was remanded to the court below for fresh disposal
against the first counter petitioner therein ie., against the
revision petitioner herein. It is in the said circumstances
that this revision petition has been filed.
34. During the course of argument, a question crop up
for consideration whether against the order of the learned
Sessions Judge in revision, a second revision would lie
before this Court. It is contended by the learned counsel for
the revision petitioner that as regards the revision
petitioner, he had not invoked the revisional powers and in
fact, the revision before the Court of Session was filed by
the first accused in S.T.No.3881 of 1997. It is further
submitted that in such circumstances, the revisional power
of this Court would still be available. True that a revision
before High Court against an order in revision by the Court
of Session is maintainable if both revision petitions were not
filed by the same parties. This position is clear from a
perusal of the provisions under section 399(3) of the Code
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
68
of Criminal Procedure, 1973. In such circumstances, there
cannot be any doubt with respect to the position that as
long as the revision before the Sessions Judge was not filed
by the revision petitioner herein this revision petition filed
against the order in revision passed by the Court of Session
in Crl.R.P.No.63 of 2000 is maintainable before this Court.
35. The item of food article involved in this case is
'greenpeas'. Going by Ext.P13 report of the public analyst,
the presence of moisture content is 9.7 %. Weevilled grains
6.6% and Uric acid content is 107 grams per kilogram in the
sample. The sample was lifted on 18.1.1996. Evidently, at
that point of time, neither the laboratory in terms of the
provisions under section 23(1-A)(ee) and the method of
analysis in terms of the provisions under section 23(1-A)(hh)
were defined by the Central Government. At the same time,
it is evident that for ascertaining whether the article of food
the sample of which was collected on 18.1.1996 was
adulterated or not, the public analyst conducted analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
69
from a laboratory and it is after such analysis that Ext.P13
report was filed. In the light of the dictum laid down by the
Hon'ble Apex Court in Pepsico India Holdings Pvt.Ltd v.
Food Inspector [2010 (4) KLT 706 (SC)], after 1.4.1976,
in order to be reliable and to form the foundation for a
prosecution, a report by a public analyst must be one based
on the analysis conducted in a laboratory as defined under
section 23(1-A)(ee) of PFA Act. Indisputably, even till the
repealing of PFA Act, no such laboratories were defined
though the method of analysis was defined prior to its
repealing. In such circumstances, we are of the view that
the decision in Pepsico's case is squarely applicable in this
case inasmuch as the report of the public analyst viz.,
Ext.P13 is the basis for the prosecution against the revision
petitioner herein. When the position of law, after 1.4.1976
in order to be reliable and to be a foundation for a
prosecution, report must be one based on the analysis
conducted from a laboratory defined under section 23(1-A)
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
70
(ee) and in view of the position that Ext.P13 is not such a
report the trial court could not have taken cognizance on
the complaint filed based on the said report. In such
circumstances, this revision petition is liable to be allowed.
Accordingly, it is allowed. Order passed by the Court of III
Additional Sessions Judge (Adhoc) Fast Track Court No.I,
Thrissur in Crl.R.P.No.63 of 2000 is set aside.
Criminal R.P.No.317 of 2004
36. This criminal revision petition is filed against the
judgment in Crl.A.No.280/2002 dated 19.12.2003 passed by
the Court of Additional Sessions Judge-III (Adhoc) Fast
Track Court-I, Thrissur confirming the order of conviction
passed by the Court of Judicial First Class Magistrate,
Chalakudy in S.T.No.564/1995.
37. The article of food involved in this case is
'horsegram'. The date of lifting of sample was on 23.2.1995.
Admittedly, no specific standard has been prescribed
therefor and the standard to be followed was the general
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
71
standard under Appendix 18.06.14, viz., under the head the
caption 'ANY OTHER FOODGRAMS for any other food
grains not specified'. Indisputably, as on 23.02.1995 no
laboratories in terms of the provisions under Section 23
(1-A) (ee) were defined. So also the method of analysis in
terms of Section 23 (1-A) (hh) was also not defined then.
Evidently, in this case in such circumstances the public
analyst could have conducted and must have conducted an
analysis from a laboratory not defined in terms of Section
23 (1-A) (ee) and following a method not defined. There is
conspicuous absence of the method followed in the report
by the public analyst which is Ext.P12. True that in this
case after receiving the report of the public analyst the
sample was sent for analysis from the Central Food
Laboratory. But in the light of the dictum laid down by the
Hon'ble Apex Court in Pepsico's case and taking into
account the fact that there was no report by the public
analyst after conducting an analysis in a laboratory defined
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
72
under Section 23 (1-A) (ee) following the method of analysis
prescribed Section 23 (1-A) (hh) cognizance could not have
been taken in this case on the complaint. When that be the
circumstances, the impugned judgement invites
interference and this revision petition is liable to be
allowed.
38. In the said circumstances, this criminal revision
petition is allowed and the judgement in Crl.A.No.280/2002
dated 19.12.2003 passed by the Court of Additional
Sessions Judge-III (Adhoc) Fast Track Court-I, Thrissur
confirming the order of conviction and the judgment of the
Court of Judicial First Class Magistrate Court, Chalakudy in
S.T.No.564/1995 are set aside. The bail bond stands
cancelled.
CRL.R.P. No.439 OF 2004
39. This criminal revision petition is filed against the
judgment in Crl.Appeal No.25 of 2001 passed by the Court
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
73
of Additional District & Sessions Judge, Kozhikode
confirming the conviction and sentence passed by the Court
of Judicial First Class Magistrate, Kozhikode in S.T.No.515
of 1999.
40. The item of food article involved in this case is
'curd' and the standard therefor, is prescribed under
Appendix B.A 11.02.04. The sample was lifted on
27.11.1996. Evidently, at that point of time, neither the
laboratory in terms of the provisions under section 23(1-A)
(ee) and the method of analysis in terms of the provisions
under section 23(1-A)(hh) were defined by the Central
Government. After the report from the public analyst the
complaint was filed and the revision petitioner herein
applied for analysis from the Central Food Laboratory in
terms of the provisions under section 13(2) of the PFA Act
and Ext.P13 is the report of the Central Food Laboratory.
Ext.P10 is the report of public analyst. The said report of
analysis runs as follows:-
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
74
Milk fat : 6.0 percent
Milk solids not fat : 6.3 percent
Test for starch : Negative
Test for cane sugar : Negative
41. True that based on the application submitted by
the revision petitioner under section 13(2) of the PFA Act,
an analysis from the Central Food Laboratory was
conducted and Ext.P13 is the report. We have found that
the basis of a complaint of this nature is the report of the
public analyst and evidently, for finding that the item of
food the sample of which was collected on 27.11.1996 was
adulterated or not, the public analyst had conducted
analysis from a laboratory and Ext.P10 is its report. It is
evident that an analysis from a laboratory was inevitable to
find out whether the sample of food taken in this case was
adulterated or not. In the light of the decision of the
Hon'ble Apex Court in Pepsico India Holdings Pvt.Ltd v.
Food Inspector [2010 (4) KLT 706 (SC)], such a report
must be prepared by a public analyst after conducting an
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
75
analysis in a laboratory defined in terms of the provisions
under section 23(1-A)(ee) after following the prescribed
method under section 23(1-A)(hh). Indisputably, till the
repealing of PFA Act, no such laboratories were defined. In
such circumstances, in terms of the dictum laid down by the
Hon'ble Apex Court in Pepsico's case to the effect that the
provisions under section 23(1-A)(ee) is mandatory, the trial
court could not have taken cognizance on the complaint
based on Ext.P10 report. In short, this revision petition is
liable to be allowed. Accordingly, it is allowed. The
judgment in Crl.Appeal No.25 of 2001 passed by the Court
of Additional District & Sessions Judge, Kozhikode and the
judgment passed by the Court of Judicial First Class
Magistrate, Kozhikode in S.T.No.515 of 1999 are set aside.
The bail bond stands cancelled.
Crl.R.P No.2594 OF 2005
42. This criminal revision petition is filed against the
judgment in Crl.Appeal No.162 of 1997 passed by the Court
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
76
of II Additional Sessions Judge, Thiruvananthapuram.
43. While considering the reference we have made it
clear that the decision of the Hon'ble Apex Court in
Pepsico's case could not be applicable in a case where
prosecution was launched for any of the violations
absolutely unconnected with adulterations. It is the case of
the petitioner that the item of food article the sample of
which was collected on 21.4.1993 was found adulterated not
based on an analysis conducted from a laboratory defined in
terms of Section 23(1A)(ee) of the PFA Act. But at the same
time, it is evident that there is conviction for the offence
under Rule 50 of the Prevention of Food Adulteration Rules,
1955. It is also to be noted that in this case, the lower court
records were not called for. In such circumstances, place
this matter before the Single Bench for considering the
same in accordance with law, after calling for the records.
Crl.M.C.No.417 of 2011
44. The petitioner is the 2nd accused in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
77
C.C.No.1130 of 2009 on the files of the Court of Judicial
First Class Magistrate, Vaikom. Annexure-D is the report
of the Public Analyst based on which Annexure-A complaint
was filed. Going by Annexure-D report of the Public Analyst
the food article which is a `Milk Chocolate' on analysis
found to have been contained uric acid to an extent of not
less than 71.0% per ppm and that consumption of uric acid
is injurious to health and therefore, it is unfit for human
consumption. It is on that ground that the sample of food
which was collected on 11.11.2003 was found adulterated.
Evidently, the presence of uric acid in the aforesaid food
article was found only after conducting an analysis from a
laboratory as is evident from Annexure-D. The presence of
uric acid could not have been detected without conducting
an analysis from a laboratory. In fact, in this case,
Annexure-D would reveal that such analysis was conducted
and the extent of uric acid present in the sample was
detected based on such an analysis. In view of the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
78
indisputable position obtained that till the repealing of the
Prevention of Food Adulteration Act, 1954 no laboratory in
terms of Section 23(1-A)(ee) was defined by the Central
Government Annexure-D could not be a report prepared by
the Public Analyst after conducting an analysis from such a
laboratory defined in terms of the said provision under the
Prevention of Food Adulteration Act. In view of the decision
of the Hon'ble Apex Court in Pepsico India Holdings (P)
Ltd. v. Food Inspector (2010 (4) KLT 706 (SC)) in order
to be reliable and to form a foundation for a prosecution
wherever a report of the Public Analyst from a laboratory is
required it must be one prepared after conducting an
analysis from a laboratory defined under Section 23(1-A)
(ee) of the Prevention of Food Adulteration Act, 1954.
45. Having heard the learned counsel for the
petitioners and also the learned Public Prosecutor and also
in view of the indisputable position that such laboratories
were not defined till the repealing of the Prevention of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
79
Food Adulteration Act, 1954 the report which formed the
basis for the complaint can only be said to be a report
prepared without conducting an analysis in a laboratory
defined under Section 23(1-A)(ee) of the Act. In the said
circumstances, in the light of the decision in Pepsico's case
(supra) we have no hesitation to hold that there cannot be a
successful prosecution against the petitioner. In such
circumstances, it is an eminently fit case for invocation of
the inherent power under Section 482, Cr.P.C. in the
interest of justice, and it avoid the wasteful exercise of the
invaluable judicial time. In the said circumstances, this
Crl.M.C. is allowed. The complaint and all further
proceedings against the petitioner in C.C.No.1130 of 2009
on the files of the Court of Judicial First Class Magistrate,
Vaikom are hereby quashed.
Crl.M.C.Nos.2105, 2106, 2932 & 3128 of 2011
46. The item of article involved in all these cases is one
and the same viz., `Turmeric powder'.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
80
47. In Crl.M.C.No.2105 of 2011 the first petitioner is
the nominee of the second petitioner company (M/s.ITC
Limited). They were respectively accused Nos.3 and 4 in
C.C.No.221 of 2011 on the files on the Court of Judicial First
Class Magistrate -1, Thrissur. In Crl.M.C.No.2106 of 2011
the petitioner who is the nominee of M/s.ITC Ltd. was the
second accused in C.C.No.157 of 2011 on the files of the
Court of Additional Chief Judicial Magistrate, Ernakulam.
In Crl.M.C.No.2932 of 2011 the petitioner was the first
accused in C.C.No.157 of 2011 on the files of the same
court. In Crl.M.C.No.3128 of 2011 the petitioners are
respectively the distributor and vendor of the products of
M/s.ITC Ltd. and they were respectively accused Nos.1 and
2 in C.C.No.221 of 2011 on the files of the Court of Judicial
First Class Magistrate -1, Thrissur. All these criminal
miscellaneous cases have been filed seeking quashment of
the proceedings before the respective trial court essentially,
based on the contentions relying on the decision of the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
81
Hon'ble Apex Court in Pepsico India Holdings private
Limited v. Food Inspector and another ((2011) 1 SCC
(Cri) 8 = (2011) 1 SCC 176). The crux of the contentions
in all these cases is that presence of foreign starch and
Lead Chromate was assigned as the reason for holding the
sample of articles involved in these cases as adulterated.
Ash was also detected without conducting a chemical test.
With respect to the question whether the percentage of the
ingredients such as ash insoluble in HCl could have been
ascertained by mere ocular examination without conducting
a chemical test virtually came up before the Hon'ble Apex
Court and in paragraph 5 of the decision in Jagdish
Chandra v. State of U.P. (1981 (1) FAC 33) it was held
thus:-
"A glance at the above Rules would show
that the percentage of the various
ingredients such as ash insoluble in HCl or
volatile oil or moisture in the sample in
question, cannot be ascertained with any
degree of accuracy by mere ocular
examination under a microscope. Chemical
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
82
tests, including treatment of the ash in the
sample with Hydrochloric Acid would be a
must. Since in the instant case, the sample
was not subjected to any chemical test or
analytical process, the opinion of the Public
Analyst was not entitled to any weight
whatsoever."
From the aforesaid decision it is evident that in order to find
the percentage of ash insoluble in HCl mere ocular
examination is not sufficient whereas chemical test has to
be conducted. That apart, in all these cases, the report of
the Public Analyst based on which complaints were filed
have been produced as Annexure-C. They would reveal that
apart from the ash insoluble in HCl presence of foreign
starch and Lead Chromate was also detected. Annexure-C
in all these cases would reveal that the method of test
employed for detecting the same was D.G.H.S. Manual. As
held by the Hon'ble Apex Court in respect of ash insoluble
in HCl there cannot be any doubt with respect to the
position that the presence of foreign starch and Lead
Chromate also could not have been ascertained with any
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
83
degree of accuracy without conducting chemical test. In
the light of the decision of the Hon'ble Apex Court in
Pepsico's case (supra) such analysis or the chemical test
should have been conducted by the Public Analyst and in
order to make the report reliable it should have been
conducted only from a laboratory defined under Section 23
(1-A)(ee) of the Prevention of Food Adulteration Act, 1954.
Indisputably, no such laboratories were defined in terms of
the said provision till the repealing of the Prevention of
Food Adulteration Act, 1954.
48. We have heard the learned counsel for the
petitioners in these cases and also the learned Public
Prosecutor
49. Indisputably, in all these cases cognizance
was taken by the respective trial courts on the complaints
filed based on Annexure-C report, the report of Public
Analyst. The nature of the result has already been referred
to hereinbefore. A perusal of Annexure-C report in all these
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
84
cases would reveal that presence of articles insoluble in
dilute HCl and Lead Chromate was detected. For the
detection of the same an analysis from a laboratory by a
Public Analyst was inevitable and in fact, such analytical
reports are the foundation for the prosecution in all these
cases. At the same time, in view of the indisputable position
obtained from the fact that till the repealing of the
Prevention of Food Adulteration Act, 1954 no laboratories
from where a Public Analyst could conduct an analysis in
terms of Section 23(1-A)(ee) were defined there could not
have been a report after conducting analysis in such a
laboratory defined in terms of the aforesaid provision.
When that was lacking, in view of the decision of the
Hon'ble Apex Court in Pepsico's case (Supra) there cannot
be a successful prosecution as the provision under Section
23(1-A)(ee) is mandatory. In view of the said
circumstances, without all peradventure we can say that
there cannot be any successful prosecution in any of these
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
cases. When that be the position, to avoid the wasteful
exercise and also to avoid the loss of invaluable judicial time
we are of the view that the proceedings in all the above
cases to be terminated invoking the inherent power under
Section 482 Cr.P.C. in the interest of justice. In the
aforesaid cases cognizance was taken of the offences under
Sections 2(ia), (a), (c), (h), 7(i) (v) vi) read with 16(1-A) 17
(1)a(i), (b) and Rule 5 of appendix `B' item A, 05-20-01 and
44(h) of PFA Rules 1955 on the complaints filed based on
Annexure-C reports of the Public Analyst and the said
reports were prepared by the Public Analyst after
conducting an analysis in a laboratory which is not one
defined under Section 23(1-A)(ee) of the Prevention of Food
Adulteration Act, 1954. In the said circumstances, in view
of the manner in which we answered the questions referred,
in the light of the decision of the Hon'ble Apex Court in
Pepsico's case (supra), the said reports of the Public
Analyst could not have been the basis for taking cognizance
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
on the complaints filed based on Annexure-C reports of the
Public Analyst as they could not be sustained in the eye of
law. In the said circumstances, the complaints based on
Annexure-C reports and all further proceedings in
C.C.No.221 of 2011 pending on the files of the Court of
Judicial First Class Magistrate -1, Thrissur to the extent it
applies to the petitioners in Crl.M.C.Nos.2105 & 3128 of
2011 and the complaints based on Annexure-C reports and
all further proceeding in C.C.No.157 of 2011 on the files of
the Court of Additional Chief Judicial Magistrate,
Ernakulam to the extent it applies to the petitioners in
Crl.M.C.Nos.2106 & 2932 of 2011 stand quashed. The
Crl.M.Cs are allowed to the above extent.
Crl.M.C.Nos.1374 & 1391 of 2012
50. The petitioners in the captioned Criminal
Miscellaneous Cases are one and the same. The item of
food article involved in these cases is also the same viz.,
`Tomato Sauce'. In S.T.No.2267 of 2009 on the files of the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
Court of Judicial First Class Magistrate-I, Kannur they are
respectively accused Nos.2 and 3 and same is their status in
C.C.No.891 of 2009 which is pending on the files of the
Court of Judicial First Class Magistrate, Malappuram. In
the former case the petitioners seek quashment of the
proceedings in S.T.No.2267 of 2009 and in the latter case
the petitioners seek quashment of all the proceedings in
C.C.No.891 of 2009, taking up the contention that in the
light of the dictum laid down by the Hon'ble Apex Court in
Pepsico India Holdings (P) Ltd. v. Food Inspector
(2010 (4) KLT 706 (SC)) taking of cognizance on the
complaints which culminated in the above proceedings are
absolutely unsustainable and as such the complaints as also
all further proceedings based thereon are liable to be
quashed. Evidently, in Crl.M.C.No.1374 of 2012 Annexure-
A2 complaint was filed based on Annexure-A1 report of the
Public Analyst. It was on the said complaint that
cognizance was taken and the case is pending as
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
S.T.No.2267 of 2009 before the Court of Judicial First Class
Magistrate-I, Kannur. In Crl.M.C.No.1391 of 2012
Annexure-A2 complaint was filed based on Annexure-A1
report of the Public Analyst and it was on the said complaint
that cognizance was taken and the case is pending as
C.C.No.891 of 2009 before the Court of Judicial First Class
Magistrate, Malappuram.
51. A perusal of Annexure-A1 in both the cases would
reveal that the Public Analyst on analysis of the sample
which was collected in the former case on 24.2.2009 and in
the latter case on 15.9.2009 found that the acidity as
`Acetic acid' is less than the prescribed standard as per
Item No.A.16.27 of Appendix B of Prevention of Food
Adulteration Rules, 1955. In the former case, as against the
prescribed standard which is not less than 1.0 percent the
result shows that only 0.77 percent was present. In the
latter case as against the aforesaid prescribed standard in
the sample acidity as acetic acid is only 0.76%. It is on the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
basis of such results that the samples collected were found
as adulterated owing to the fact that they do not conform to
the standard prescribed for Tomato Sauce. From the facts
expatiated above it is evident that in both the cases a test
was conducted using the samples collected by the Public
Analyst and it is the result of such analysis culminated in
Annexure-A1 reports. In the light of the indisputable
position it is evident that the tests which culminated in
those reports were not conducted from a laboratory defined
under Section 23(1-A)(ee) of the Prevention of Food
Adulteration Act, 1954. In the light of the decision of the
Hon'ble Apex Court in Pepsico's case (supra) in order to be
reliable and to form a foundation for such a prosecution
after 1.4.1976 viz., the date of incorporation of the
provisions under Section 23(1-A)(ee) the report of the Public
Analyst must be one based on an analysis conducted from a
laboratory defined under Section 23(1-A)(ee) of the
Prevention of Food Adulteration Act, 1954. Evidently,
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
Annexure-A1 report cannot be said to be made based on
analysis conducted in such a laboratory as the indisputable
position obtained is that till the repealing of Prevention of
Food Adulteration Act, 1954 no such laboratory was defined
under Section 23(1-A)(ee) of the Prevention of Food
Adulteration Act, 1954. In the said circumstances, in the
light of the decision in Pepsico's case (supra) cognizance
could not have been taken on the complaint which was filed
based on Annexure-A1 reports. In the said circumstances,
the captioned Crl.M.Cs are liable to be allowed.
52. In the result, the Crl.M.Cs are allowed. The
complaints and all the proceedings in C.C.No.891 of 2009
on the files of the Court of Judicial First Class Magistrate,
Malappuram and in S.T.No. 2267 of 2009 on the files of the
Court of Judicial First Class Magistrate-I, Kannur, in so far
as they relate to the petitioners stand quashed.
Crl.M.C.No.2755 of 2013
53. Accused Nos.5 and 6 in S.T.No.3613 of 2011 on the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
files of the Court of Judicial First Class Magistrate-I,
Kottayam are the petitioners. They filed the captioned
miscellaneous case seeking quashment of Annexure-I
complaint and Annexure-IV report and all proceedings in
S.T.No.3613 of 2011 on the files of the Court of Judicial
First Class Magistrate-I, Kottayam. Evidently, cognizance
was taken on Annexure-I complaint. Annexure-I complaint
was filed based on Annexure-IV report of the Public Analyst.
The item of food involved in this case is `Margarine'. The
standard thereof is prescribed under item No.A.12 of
Appendix B of Prevention of Food Adulteration Rules, 1955.
In Annexure-IV report of the Public Analyst it was found
that the free fatty acid of extracted fat (as oleic acid) as
against the standard prescribed thereof viz., not more than
0.25%, the sample analysed contained only 0.1% that is,
within the limit. It was found to be adulterated on the
ground that though the prescribed standard as per item
No.A.12 of of Appendix B of the Prevention of Food
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
Adulteration Rules, 1955 in respect of fat is "not less than
80.0% m/m" the sample contained only 77.6%. True that,
the said report was superseded by Annexure-V report of the
Central Food Laboratory. But, at the same time, it is
evident that the basis for the prosecution is the report of
Public Analyst viz., Annexure-IV and complaint was filed
based on the same. As noticed hereinbefore, it is evident
from Annexure-IV that for arriving at the results noted
thereunder an analysis was conducted by the Public Analyst
from a laboratory. In the light of the decision in Pepsico
India Holdings (P) Ltd. v. Food Inspector (2010 (4)
KLT 706 (SC)) we have answered the reference to the
effect that wherever an analysis by a Public Analyst from a
laboratory is to be conducted inevitably in order to be
reliable and to form a basis for a prosecution it must be one
conducted from a laboratory defined under Section 23(1-A)
(ee) of the Prevention of Food Adulteration Act, 1954. Since
the indisputable position obtained is that no such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
laboratories were defined till repealing of the Prevention of
Food Adulteration Act, 1954 Annexure-IV can only be a
report prepared after conducting an analysis from a
laboratory which was not defined in terms of the aforesaid
provision. In the said circumstances, in the light of the
decision in Pepsico's case (supra) and the aforesaid finding
it cannot be a reliable one and needless to say, in such
circumstances, on Annexure-I complaint filed relying on
such a report viz., Annexure-IV cognizance could not have
been taken, in the matter. When that be so, we have no
hesitation to hold that the complaint and all the proceedings
in S.T.No.3613 of 2011 pending against the petitioners who
are accused Nos.5 and 6 therein, before the Court of
Judicial First Class Magistrate-I, Kottayam are liable to be
interfered with.
54. Accordingly, this Crl.M.C. is allowed. The
complaint and all further proceedings in S.T.No.3613 of
2011 pending before the Court of Judicial First Class
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
94
Magistrate-I, Kottayam to the extent it applies to the
petitioners who are accused Nos.5 and 6 stand quashed.
Sd/-
C.T. RAVIKUMAR
JUDGE
Sd/-
K.P. JYOTHINDRANATH
JUDGE
Print Page
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
&
MR. JUSTICE K.P.JYOTHINDRANATH
17TH DAY OF NOVEMBER 2015
Crl.Rev.Pet.No. 1814 of 2002
N.K.RASHEED,
Vs
THE FOOD INSPECTOR,
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 17TH DAY OF NOVEMBER 2015/26TH KARTHIKA, 1937
Crl.Rev.Pet.No. 1814 of 2002 ( )
---------------------------------
AGAINST THE JUDGMENT IN CRA 186/1997 of ADDL.SESSIONS JUDGE (ADHOC-I),
THALASSERY
AGAINST THE JUDGMENT IN STC 834/1992 of JUDICIAL FIRST CLASS
MAGISTRATE,THALASSERY
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
-------------------------------------------------------
N.K.RASHEED,
S/O.ERAMU, SUPER BAZAR, GROCERY SHOP
DOOR NO.18/112, T.C.ROAD, THALASSERRY.
BY ADVS.SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.T.P.SAJID
RESPONDENTS/COMPLAINANT & STATE:
-----------------------------------------------
1. THE FOOD INSPECTOR,
THALASSERY MUNICIPALITY, THALASSERY.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADGP SRI.TOM JOSE PANDIJAREKKARA
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-11-2015 ALONG WITH CRL.R.P.NO.1518 OF 2003 & CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003,
317 & 439 of 2004, 2594 of 2005
and
Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011,
1374 and 1391 of 2012, 2755 of 2013
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of November, 2015
O R D E R
C.T. Ravikumar, J.
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
2
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
3
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
4
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
5
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
6
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
7
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
8
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 17TH DAY OF NOVEMBER 2015/26TH KARTHIKA, 1937
Crl.Rev.Pet.No. 1814 of 2002 ( )
---------------------------------
AGAINST THE JUDGMENT IN CRA 186/1997 of ADDL.SESSIONS JUDGE (ADHOC-I),
THALASSERY
AGAINST THE JUDGMENT IN STC 834/1992 of JUDICIAL FIRST CLASS
MAGISTRATE,THALASSERY
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
-------------------------------------------------------
N.K.RASHEED,
S/O.ERAMU, SUPER BAZAR, GROCERY SHOP
DOOR NO.18/112, T.C.ROAD, THALASSERRY.
BY ADVS.SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.T.P.SAJID
RESPONDENTS/COMPLAINANT & STATE:
-----------------------------------------------
1. THE FOOD INSPECTOR,
THALASSERY MUNICIPALITY, THALASSERY.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADGP SRI.TOM JOSE PANDIJAREKKARA
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-11-2015 ALONG WITH CRL.R.P.NO.1518 OF 2003 & CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003,
317 & 439 of 2004, 2594 of 2005
and
Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011,
1374 and 1391 of 2012, 2755 of 2013
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of November, 2015
O R D E R
C.T. Ravikumar, J.
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
2
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
3
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
4
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
5
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
6
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
7
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
8
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 17TH DAY OF NOVEMBER 2015/26TH KARTHIKA, 1937
Crl.Rev.Pet.No. 1814 of 2002 ( )
---------------------------------
AGAINST THE JUDGMENT IN CRA 186/1997 of ADDL.SESSIONS JUDGE (ADHOC-I),
THALASSERY
AGAINST THE JUDGMENT IN STC 834/1992 of JUDICIAL FIRST CLASS
MAGISTRATE,THALASSERY
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
-------------------------------------------------------
N.K.RASHEED,
S/O.ERAMU, SUPER BAZAR, GROCERY SHOP
DOOR NO.18/112, T.C.ROAD, THALASSERRY.
BY ADVS.SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.T.P.SAJID
RESPONDENTS/COMPLAINANT & STATE:
-----------------------------------------------
1. THE FOOD INSPECTOR,
THALASSERY MUNICIPALITY, THALASSERY.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADGP SRI.TOM JOSE PANDIJAREKKARA
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-11-2015 ALONG WITH CRL.R.P.NO.1518 OF 2003 & CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003,
317 & 439 of 2004, 2594 of 2005
and
Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011,
1374 and 1391 of 2012, 2755 of 2013
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of November, 2015
O R D E R
C.T. Ravikumar, J.
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
2
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
3
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
4
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
5
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
6
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
7
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
8
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 17TH DAY OF NOVEMBER 2015/26TH KARTHIKA, 1937
Crl.Rev.Pet.No. 1814 of 2002 ( )
---------------------------------
AGAINST THE JUDGMENT IN CRA 186/1997 of ADDL.SESSIONS JUDGE (ADHOC-I),
THALASSERY
AGAINST THE JUDGMENT IN STC 834/1992 of JUDICIAL FIRST CLASS
MAGISTRATE,THALASSERY
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
-------------------------------------------------------
N.K.RASHEED,
S/O.ERAMU, SUPER BAZAR, GROCERY SHOP
DOOR NO.18/112, T.C.ROAD, THALASSERRY.
BY ADVS.SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.T.P.SAJID
RESPONDENTS/COMPLAINANT & STATE:
-----------------------------------------------
1. THE FOOD INSPECTOR,
THALASSERY MUNICIPALITY, THALASSERY.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADGP SRI.TOM JOSE PANDIJAREKKARA
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-11-2015 ALONG WITH CRL.R.P.NO.1518 OF 2003 & CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R"
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003,
317 & 439 of 2004, 2594 of 2005
and
Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011,
1374 and 1391 of 2012, 2755 of 2013
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of November, 2015
O R D E R
C.T. Ravikumar, J.
This bunch of cases viz. Criminal Revision Petitions
filed by the convicts who faced prosecution and Criminal
Miscellaneous Cases filed by the accused who are facing
prosecution, for offences under different Sections of the
Prevention of Food Adulteration Act, 1954 (for short, "PFA
Act") read with different rules of the Prevention of Food
Adulteration Rules 1955 (for short, "PFA Rules"), relating to
food adulteration were placed before us on orders of
reference. All the Crl.M.Cs. except Crl.M.C.No.2755/2013
were referred as per order dated 25.9.2014 and all the
other cases including Crl.M.C.No.2755/2013 were
subsequently referred based on the order of reference dated
25.9.2014. Apparently, the order of reference dated
25.9.2014 was made in the wake of cleavage of opinion and
divergent findings made by three learned Single Judges
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
2
regarding the ratio decidendi in the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt. Ltd. v. Food
Inspector [2010 (4) KLT 706 (SC)], in different cases.
The questions referred to the Division Bench are as follows:
"(1) Could all the prosecutions under the Act of 1954
be stifled by raising a contention that the laboratories or
methods of analysis were not defined?
(2) Is it proper to hold that since Central
Government has not taken steps to effectuate Sec.23(1A) (ee)
and (hh) of the Act of 1954, no prosecution will lie under the
Act of 1954 even if it is established that the standards
prescribed for various food items have been flouted?
(3). Whether the ratio in Pepsico's case (supra) can
be applied to all cases of alleged food adulteration under the
Act of 1954 irrespective of the fact whether or not standards
have been prescribed for food items?"
2. Before answering the reference, it has become
inevitable for us to consider another question of importance
which could decide the width of jurisdiction while deciding
the captioned cases received on reference. The question is
whether a learned Single Judge could refer only one or
some of the questions that arise/arises for consideration to
the Division Bench and retain the case for consideration in
all other respects or could decide any other question or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
3
questions not referred, but involved in the referred case. In
fact, that question is no more res integra in view of the
decisions of a Division Bench of this Court in Kallara
Sukumaran v. Union of India [1987 (1) KLT 226] and a
larger Bench of this Court comprised of seven Honourable
Judges in Babu Premarajan v. Supdt. of Police [2000
(3) KLT 177] (F.B.)]. As a matter of fact, those decisions
were also considered by the learned Single Judge while
passing the order of reference dated 25.9.2014.
3. While dealing with the power of a Single Judge
under Section 3 of the Kerala High Court Act,1958 (for
short, "the Act") in contradistinction to the powers of a
Division Bench under Section 4 of the Act, in Kallara
Sukumaran's case (supra) a Division Bench of this Court
held thus:-
"It is clear from Section 3 of the Act that a Single Judge
is empowered to adjourn the case for being heard and
determined by a bench of two Judges. Section 3 does not
confer any power on the Single Judge to refer only one of the
questions that arises for consideration to the Division Bench.
Section 4 of the Act, on the other hand, makes it clear that a
Division Bench can refer the entire case or a question of law
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
4
to a Full Bench. If the legislature intended to confer power
on a Single Judge to refer only a question of law to the
Division Bench, it would have made a specific provision to
that effect as has been done in Section 4 of the Act. There
cannot, therefore, be any doubt that a Single Judge is not
competent to refer only a question of law to the Division
Bench. The Single Judge, can, if he so desires, refer the
entire case to the Division Bench.
(emphasis added)
In Babu Premarajan' case (cited supra) the Larger Bench
held as follows:
"When a single Judge adjourns the case for being heard
and determined by a Bench of two Judges under Section 3 of
the Act, he passes a judicial order, though discretionary one.
An order of adjournment is, therefore, a judicial order."
The Bench further went on to observe and held thus:
"We are of the opinion that, in the scheme of the
provisions of the Act, the words "adjourn it for being heard
and determined by a Bench of two Judges" appearing in
Section 3 must be construed narrowly, meaning thereby, a
reference to another forum of two Judges for being heard
and determined by them. The word "adjourn" cannot be
given a wide meaning which would normally imply a single
Judge adjourning it to himself or the matter coming before
another single Judge due to change of sitting; a Division
Bench adjourning a matter to its own forum or the matter
coming before another Division Bench due to change of
sitting. But when a matter is adjourned by a single Judge
under Section 3 of the Act to a larger forum of two Judges, in
our view, the word "adjourn" must be construed to mean
"refer". The word "adjourn" in Section 3 must be construed
narrowly, only to mean "refer".
4. Thus in the light of the aforesaid decisions, a
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
5
learned Single Judge (if opted to refer a case) while
referring the case could neither decline to refer any other
particular question (if it actually arises for consideration)
nor decide any of the issues or any of the questions of law,
involved in that referred case in and vide the order of
reference. The reasons therefor are discernible from those
decisions. In view of Section 3 as interpreted by this Court
in the aforesaid decisions, a learned Single Judge can refer
only the entire case to a large Bench of two Judges. True
that, going by the said larger Bench decision, an order of
adjournment passed under Section 3 of the High Court Act,
though a discretionary one, it is a judicial order. But, when
it is invoked the order cannot go beyond the bounds of its
limited scope. For a proper understanding of the position
the question what is the binding effect of a decision by a
learned Single Judge on a question of law or an issue
involved in the referred cases, while making a judicial order
of reference of that case, has also to be looked into. The
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
6
answer to that question also lies embedded in Babu
Premarajan's case (supra). Paragraph Nos.47 and 48
therein read thus:-
Paragraph No.47:
"In the view that we have taken in the preceding
paragraph on the latter part of Question No. (2) viz. that an
order of reference by a single Judge to a Division Bench is not
capable of being challenged in an appeal under S.5(i) of the
Act, it is not necessary for us to discuss the decisions of the
Apex Court on the question that a right of appeal is a
substantive right and is a creation of statute. It cannot be
taken away lightly. This position is settled in view of the
decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of
Maharashtra, (1969) 2 SCC 793 and (iii) U.P. Awas Evam
Vikas Parishad v. Gyan Devi, (AIR 1995 SC 724), where the
Apex Court relied upon a passage from Halsbury's Laws of
England, 4th Edition, Vol. 37 pages 516 para 677 under the
heading "Appeals to the Court of Appeal".
Paragraph No.48:
"While there can be no doubt that a right of appeal is a
creation of statute, in our view, the order passed by a single
Judge u/S.3 referring the case for being heard and
determined by a Bench of two Judges is not appealable and,
hence, there is no question of any right of appeal being
adversely affected. No rights are determined while the
matter is referred by a single Judge to a Division Bench. A
single Judge is only expected to give brief reasons for making
the reference to a Division Bench. He should, preferably,
frame the question of law, as has been done in Ombudsman's
case referred to in para 4(IV) above. To the extent to which
the Full Bench in 1985 KLT 769, holds that rights of parties
are not being settled while adjourning a case u/S.3 of the
Act, we are in respectful agreement with the view expressed
by the Full Bench. We must, however, hasten to add that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
7
even such an order of adjournment referring the case to be
heard and determined by a Bench of two Judges, is a judicial
order and is required to be in writing, indicating brief
reasons therefor. To that extent, as indicated earlier, we
regret our inability to agree with the view expressed by the
Full Bench in 1985 KLT 769 and we are in agreement with
the Division Bench view in 1985 KLT 738. The first two
questions will, therefore, stand answered accordingly."
Justice J.B. Koshy in a dissenting judgment virtually
concurred with the majority on the point that no rights of
parties are determined in an order of reference. It was
opined that since by an order of adjournment the lis
pending between the parties is not decided and the order is
not appealable or amenable to judicial review the
observations or reasons in the adjournment order are not
binding on any person notwithstanding what is stated in the
reference order and the Division Bench could decide the
entire matter ignoring the reasons for reference. It was
also held that in many cases no purpose would served by
indicating reasons in the adjournment order. Thus, on
scanning of the decisions in Kallara Sukumaran's case
(supra) and Babu Premarajan's case (supra), rendered
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
8
after referring to Sections 3 and 4, it is evident that under
Section 3 of the Act a learned Single Judge could only refer
the entire case and he is not empowered to refer only a
question/questions of law involved in any particular case
and also that while referring the case/cases no rights of
parties or any other questions of law involved therein could
be the decided under the order of reference. Thus, the
position emerged is that the observations, reasons or
findings, if any, in such an order of reference passed under
Section 3 of the Act, are not binding on the parties and it
will be open to the Division Bench to consider the entire
matter.
5. In this case, evidently, the order of reference
would reveal that the senior counsel appearing for the
petitioners in Crl.MC. Nos.2105, 2106, 2932 and 3128 of
2011 sought reference of another question also to the
Division Bench. It was based on Section 89 of the Food
Safety and Standards Act, 2006 (for short, "FSS Act") that
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
9
such a submission was made. The learned Senior Counsel
canvassed the position that since the lifting of the samples
in those cases are effected after the coming into force of the
'FSS Act' prosecution of the petitioners in those cases under
the PFA Act is unsustainable in law. For considering its
tenability the learned Single Judge considered the
provisions under Sections 89 and 97 of the FSS Act. Both
the Sections came into effect on 29.7.2010. The order of
reference would also indicate that the learned Single Judge
virtually decided the said question relying on the decision of
this court in Narayana Reddiar v. State of Kerala [2012
(3) KLT 408]. In the said case the question raised for
consideration was whether the prosecution under the
provisions of the PFA Act and PFA Rules were sustainable in
respect of offences detected on and after 29.7.2010.
Virtually, it was found therein that the PFA Act was
repealed only as per the notification issued by the Central
Government dated 4.8.2011 by virtue of powers under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
10
Sections 97 (1) of the FSS Act. It was held that it should be
borne in mind that the PFA Act figuring in 2nd Schedule to
FSS Act was repealed only with effect from 5.8.2011. It was
further held therein that although Sections 89 & 97 of the
FSS Act came into existence by a single notification dated
29.7.2010 it could not be said that PFA Act got
automatically repealed even without a notification as
required under Section 97 (1) of the FSS Act. The learned
Single Judge in the order of reference dated 25.9.2014
concurred with the finding in Narayana' Reddiar's case
that there shall not be any vacuum created by repeal of an
existing statute, especially in a field like food safety and
consequently, did not find any reason to deviate from the
view taken by the learned single Judge in Narayana'
Reddiar's case and declined to refer the aforesaid question
based on Section 89 of the FSS Act. By virtue of what we
have held hereinbefore in the light of Sections 3 and 4 of
the High Court Act and in the light of the decisions in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
11
Kallara Sukumaran's case (supra) and Babu
Premarajan' case (supra) we have no hesitation to hold
that despite the finding of the learned Single Judge in the
order of reference dated 25.9.2014 as regards the aforesaid
question, in case, ultimately it is found that for a proper
disposal of the captioned cases consideration of the
aforesaid question is also essential we will proceed to
consider the same notwithstanding such findings and
observations. The question whether we should consider
that aspect would certainly depend upon the answers to the
three questions referred as per the order dated 25.9.2014,
as extracted above.
6. We ween that the referred questions could not be
answered without properly understanding the exact ratio
decidendi in Pepsico's case (supra). The determination of
the ratio decidendi is not as easy as it might appear, at first
sight, in certain cases. In Amar Kumar Mahto and anr.
v. State of Bihar [AIR 2010 Pat.19] the Patna High
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
12
Court referred to Halsbury 's Laws of England (Fourth
Edition), Vol.37, paragraph 1237 regarding 'ratio
decidendi'. It reads thus:-
"The enunciation of the reason or principle upon
which a question before a Court has been decided is
alone binding as a precedent. This underlying
principle is called the 'ratio decidendi', namely the
general reasons given for the decision or the general
grounds upon which it is based, detached or
obstructed from the specific peculiarities of the
particular case which give rise to the decision".
7. A Full Bench of the Madras High Court in M.
Shaikh Dawood v. Collector of Central Excise, Madras
[AIR 1961 Mad.1 (F.B.)] quoted passages from Salmond
on Jurisprudence, 11th Edn. P.223 and 224 thus:-
"A precedent is a judicial decision which contains
in itself a principle. The underlying principle which
thus forms its authoritative elements is often termed
the ratio decidendi. The concrete decision is binding
between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards
the world at large. The only judicial principles which
are authoritative are those which are thus relevant in
their subject matter and limited in their scope. All
others, at the best, are of merely persuasive efficacy".
They are not true ratio decidendi and are
distinguished from them under the name of dicta or
obiter dicta, things said by the way.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
13
Now, we will deal with the contentions. The learned
counsel appearing for the petitioners in the revision
petitions as also in the Crl.M.Cs. contended that the Hon'ble
Apex Court in Pepsico's case after considering the rival
contentions and also the relevant provisions of the law,
held that Section 23(1A) (ee), which is relevant as far as
these cases are concerned, is mandatory in nature.
8. Per contra the learned Additional Director
General of Prosecution contended that it cannot be the ratio
of the decision in Pepsico's case and in fact, the decision in
Pepsico's case is confined only to sweetened carbonated
water. It is further contended that the provisions under
Section 23 of the PFA Act cannot be understood to have
mandated for framing of rules and that position is easily
deducible from the word "may" employed in the said rule.
It is further contended that no specific reason has been
assigned by the Hon'ble Apex court to hold that the word
"may" employed in Section 23 of PFA Act partook the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
14
meaning 'must' or 'shall'. Virtually, to substantiate the said
contention that in order to be a binding precedent a
decision must be one rendered after discussing the scope of
the provisions of law or it should be one rendered relying on
other authorities on the said point the learned Additional
DGP relied on various decisions of the Hon'ble Apex court
such as in State of Rajasthan v. Ganeshi Lal [2008 KHC
4383], Oriental Insurance Co. Ltd. v. Raj Kumar [2008
KHC 5157] and State of Punjab v. Rafiq Masih (White
Washer) [2014 KHC 4488]. In Ganeshi Lal's case the
Hon'ble Apex court held that placing reliance on a decision
by a court without looking into the factual background of
the case before it, is clearly impermissible. A decision is a
precedent on its own facts and each case presents its own
features and that it is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was also
held therein that the only thing in a Judge's decision binding
a party is the principle upon which the case is decided and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
15
for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. Virtually the same view
has been taken in Oriental Insurance Co.'s case (supra).
A perusal of paragraph 12 in Oriental Insurance Co.'s
case (supra) would reveal that their Lordships discussed
about the theory of precedence. In paragraph 12 it was held
thus:
"According to the well settled theory of precedents,
every decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation
of the reason or principle on which a question before a Court
has been decided is alone binding as a precedent. (See: State
of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC
647) and Union of India and Ors. v. Dhanwanti Devi and Ors.
1996 (6) SCC 44 : 1996 AIR SCW 4020. A case is a precedent
and binding for what it explicitly decides and no more."
(emphasis added)
9. In Rafiq Masih's case (supra) Hon'ble Apex
Court held that the directions issued under Section 142 of
the Constitution of India do not constitute a binding
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
16
precedent unlike Article 141 of the Constitution of India. It
was further held that the Apex Court on the qui vive has
expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the facts
and circumstances of the case. In short, in the said decision
in unambiguous terms it was held that if directions were
issued in a decision invoking the power under Article 142 of
the Constitution of India they do not constitute a binding
precedent or forms any ratio decidendi. But, at the same
time if there is a declaration of law it would be binding in
view of the provisions of the Article 141 of the Constitution
of India. A scanning of the decisions in Pepsico's case in
the light of the above said decisions would reveal that as
regards the provisions under Section 23(1A) (ee) no
declaration which is having a binding force has been made
by the Hon'ble Apex Court, it is contended. In other words
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
17
in so far as the provisions under Section 23 of the PFA Act
is concerned the decision in Pepsico's case cannot be
considered as a binding precedent except in the case of
sweetened carbonated water, it is further contended by the
learned ADGP. In this context the arguments advanced by
learned counsel Sri. Bechu Kurian Thomas also has some
relevance. It is contended that even if certain directions
and findings in Pepsico's case are taken as obiter dictum
still they are binding on this court inasmuch as in relation
to the obiter dictum, as canvassed by the learned Additional
DGP, there is no direct pronouncement on that question
elsewhere by the Hon'ble Apex Court. To substantiate the
said contention, the learned counsel also relied on a
decision of the Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it
was held:- ........"an obiter dictum of this Court may be
binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
18
But as far as this Court is concerned, though not binding, it
does have clear persuasive authority". The decision of the
Hon'ble Apex Court in Sarwan Singh Lamba v. Union of
India [(1995) 4 SCC 546] was also relied on by the
learned counsel to contend that normally even an obiter
dictum is expected to be obeyed and followed. The learned
ADGP thereupon raised a contention that a Division Bench
judgment of this Court in Devon Foods v. Union of India
[1995 (1) KLT 564] after considering the scope of Section
23 (IA) (hh) held that it is for the laboratory to determine
the method of analysis and therefore there is no need for
the Central Government to define the methods.
10. The learned ADGP also drew our attention to sub
sections 1 and 1 (a) of Section 23 to point out that under
both the said sub sections the word 'may' has been used. It
is also contended that Section 8 of the PFA Act postulates
that it is open to the State Government as also the Central
Government to appoint persons as public analyst for such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
19
local areas as may be assigned to them by issuing
notifications. It is further contended that Rule 6 of the PFA
Rules prescribes the qualifications of public analyst and
Rule 7 provides the duties of the public analyst. In the light
of Rule 7 it is further contended that a close scanning of the
same would reveal that what was left to define was the
laboratory in which a public analyst could and should
conduct the analysis and also the method of analysis. It is
further contended that it is the said gap that was virtually
filled held in by the incorporation of Section 23 (1A) (ee)
and (hh). The learned Additional DGP further drew our
attention to the proviso to Rule 8 of the PFA Rules. Rule 8
prescribes the qualifications for Food Inspector and the
proviso thereunder will reveal that training in food
inspection and sampling work obtained prior to the
commencement of the Rule 3 of the Prevention of Food
Adulteration (Fourth Amendment) Rules, 1976 'in any of the
laboratories under the control of a public analyst appointed
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
20
under the Act' was also prescribed as a qualification
equivalent for the purpose of requisite training under the
rules. This was brought to our attention to contend that the
said provision would indicate that a public analyst
appointed under the Act was to have a laboratory under his
control. In the said circumstances it is further contended
that Section 23 (IA) (ee) virtually is applicable only with
respect to the Public analyst appointed by the Central
Government and it is inapplicable as far as the public
analysts appointed by the State Government. In the said
circumstances it is further contended that if a construction
is given to Section 23 (IA) (ee) that it is mandatory and not
directory, in the light of the provisions under Rule 7 of PFA
Rules it would be as good as holding that despite the
specification of the duties under Rule 7 they were to remain
defunct till the defining of laboratories under Rule 23 (IA)
(ee) as there would not be any laboratory of Public Analysts
for the Food Inspectors to get trained. The learned ADGP
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
21
further contended that Rule 3 (c) would also indicate that
public analysts in various States have laboratories under
their control and they could carry out investigation in
collaboration with such laboratories of public analysts and
the Central Food laboratories. In such circumstances it
would indicate that there could be laboratories under the
control of public analyst in the other States and
investigation could be conducted either in the Central Food
laboratory or in collaboration with such laboratories.
11. Virtually all such contentions are taken to canvass
the point that term public analyst, employed in Section 23
(IA) (ee) refers only to public analyst appointed by the
Central Government and also to contend that even
otherwise the Public Analysts appointed by the State would
conduct investigation, rather analysis, either in the Central
Food Laboratory or in collaboration with such laboratories
under the control of public analysts in the other States. Yet
another contention was also taken up for the said purpose.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
22
It is contended by the learned Additional DGP that it is
envisaging such situations that Section 23 (2) has been
incorporated to provide the manner in which a rule could be
brought into force and to validate any action or anything
done prior to the bringing into force of such rule. In other
words it is contended that anything previously done under
an unamended rule or any rule which is incorporated
subsequently are validated by the provisions under Section
23 (2) of the PFA Act.
12. In the order of reference dated 25.9.2014 in
paragraph 5 the preliminary statement in 'Precedent in
English Law' - Rupert Cross and J.W. Harris (Clarendon law
series) in respect of precedents has been taken note of
thus:-
"It is a basic principle of the administration of justice
that like cases should be decided alike. This is
enough to account for the fact that, in almost every
jurisdiction, a judge tends to decide a case in the
same way as that in which a similar case has been
decided by another judge. The strength of this
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
23
tendency varies greatly. It may be little more than
an inclination to do as others have done before, or it
may be the outcome of a positive obligation to follow
a previous decision in the absence of justification for
departing from it. Judicial precedent has some
persuasive effect almost everywhere because stare
decisis (keep to what has been decided previously)
is a maxim of practically universal application. The
peculiar feature of the English doctrine of precedent
is its strongly coercive nature. English judges are
sometimes obliged to follow a previous case
although they have what would otherwise be good
reasons for not doing so."
Words of Lord Denning, treated as locus classicus, are also referred
therein thus:
"Each case depends on its own facts and a
close similarity between one case and another is
not enough because even a single significant detail
may alter the entire aspect, in deciding such cases.
One should avoid the temptation to decide cases
(as said by Cardozo) by matching the colour of one
case against the colour of another. To decide,
therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all
decisive.
*** *** ***
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
24
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
The observation made by the Apex Court in Bharat Petroleum
Corporation Ltd. & another v. N.R.Vairamani & another (AIR 2004 SC
4778) was also referred to in the order of reference. It reads thus:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
the context. These observations must be read in
the context in which they appear to have been
stated."
In the above context an earlier decision of the Hon'ble Apex
Court in Regional Manager v. Pawan Kumar Dubey
reported in [AIR 1976 SC 1766] is also worthwhile to
notice. It was held therein thus:-
"It is the rule deducible from application of law to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
25
he facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case to
similar facts".
In short, we are of the view that when a decision of the
Hon'ble Apex Court is cited one shall not tend to distinguish
the same when the same principles are to be applied, unless
there is additional or different fact which could make a
world of difference between conclusions even by applying
the same principles. Under Article 141 of the Constitution
of India when a law is declared by the Hon'ble Apex Court it
is binding on all courts within the territory of India.
13. In the light of the decisions referred hereinbefore,
it can be safely said that the statement of principles of law
applicable to the legal problems disclosed by the facts is the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
26
vital element in a decision and that ingredient is the ratio
decidendi. Two other decisions of the Hon'ble Apex Court
also have to be borne in mind while considering the
aforesaid question. In the decision in Islamic Academy of
Education v. State of Karnataka [AIR 2003 SC 3724]
the Hon'ble Apex Court held:-
"The ratio decidendi of a judgment has to be found out only
on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out of the entire ratio decidendi
of the judgment". Even though we have adverted to
different observations and the decisions as above we are of
the view that we should be cautioned ourselves from
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
27
distinguishing a decision of the Hon'ble Apex Court when it
is cited before us. In Fuzlunbi v. K. Khader Vali [AIR
1980 SC 1730] the Hon'ble Apex Court observed in
paragraph 8 as hereunder:-
".......there is no warrants whatever for the
High Court to reduce to a husk of a decision of this
court by its doctrinal gloss".
In paragraph 10 of the said decision the reasons which
would pursue a judge to distinguish precedent as per
Glanvile Williams in his "Learning the Law" was also
extracted. It reads thus:
"that the earlier decision is altogether unpalatable to
the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned
Author notes that some judges may
"in extreme and unusual circumstances) be up to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf in
this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only 'on its
actual facts.'
Even after quoting the same it was held further therein
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
28
thus:- "We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedence, but because of the
imperatives of Article 141".
14. We think that it will be inappropriate if we are not
adverting to the decisions of three learned Single Judges
that constrained the learned Single Judge to pass the order
of reference dated 25.9.2014 before proceeding further to
consider what is the ratio decidendi in Pepsico's case
(supra).
15. The first among the three decisions was rendered
in Tito Varghese v. Food Inspector [2012 (4) KLT 796].
The food item involved therein was 'urd dhal' exhibited for
sale. The application of ratio in Pepsico's case (supra) was
considered by the learned Single Judge. After referring to
paragraph 40 to 45 of the decision of the Hon'ble Apex
Court in Pepsico's case (supra) it was held that observation
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
29
thereunder could not be stretched to an extent as if the
Apex Court has rendered a decision that use of DGHS
method for analysis over other food items and conducting of
tests on those items in State laboratories are not sufficient
to sustain the prosecution based on the analysis report from
such laboratories. It was so held after taking note of the
fact that in Pepsico's case (supra) the item of food article
was sweetened carbonated water and the method which
was employed for analysis was nothing but DGHS method of
analysis. In short it was interpreted by the learned Single
Judge that the decision in Pepsico's case (supra) is a
precedent only in respect of sweetened carbonated water
and the observations thereunder would not invalidate any
prosecution based on analysis report from any other state
laboratories in respect of other food items. After holding
thus the prayer to quash the complaints relying on the
decision in Pepsico's case (supra) was declined. At the
same time in Gopalakrishnan v. Food Inspector [2013
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
30
(3) KLT 455] another learned Single Judge considered the
applicability of the dictum in Pepsico's case (supra) and
the item of food involved in that case was 'ice cream'. After
referring to the provisions under Section 23 (IA) (ee) and
(hh) and the decision of the Hon'ble Apex Court in
Pepsico's case (supra) it was held that since the provisions
under Section 23 (IA) (ee) and (hh) are mandatory when the
question is with respect to the liberty of a citizen who is an
accused in a case under PFA Act, 1954 and when the
consequences are severe the provisions under the PFA Act
have to be interpreted strictly and scrupulously. Holding
that the provisions under Section 23 (IA) (ee) and (hh) are
mandatory it was held that what is to be looked into is
whether the provision under Section 23 (IA) (ee) and (hh)
are followed scrupulously or not. In short, it was held that
the principles laid down rather, the reasoning of the Hon'ble
Apex Court in respect of sweetened carbonated water would
apply in case of other food items as well where an analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
31
was conducted by a public analyst not from a defined
laboratory, in the matter of initiation and continuation of a
prosecution based on a report of analysis of a public
analyst. In the reference order dated 25.09.2014 another
decision rendered by yet another learned Single Judge in
Crl.R.P.No.3245/2004 dated 25.3.2014 (E.K. Varghese v.
Food Inspector) was also referred to. The item of food
involved in that case was 'Toor Dhal'. Evidently it was held
that the dictum in Pepsico's case (supra) is applicable in
respect of the said item of food article as well inasmuch as
the analysis was not conducted by the public analyst in a
laboratory defined under Section 23 (IA) (ee) of the PFA
Act. Thus it can be seen that while considering
Gopalakrishnan's case (supra) as also the decision in E.K.
Varghese's case (supra) the dictum in Pepsico's case
(supra) was virtually understood and applied taking that the
Hon'ble Apex Court laid down that the provisions under
Section 23 (IA) (ee) and (hh) are mandatory. In Tito
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
32
Varghese's case (supra) it was held that the decision in
Pepsico's case (supra) could not be understood to have laid
down a preposition that merely because analysis was
conducted from a laboratory other than a laboratory defined
under Section 23 (IA) (ee) it would not render the
prosecution invalid for that reason. In other words, the said
decision was understood and applied as if it is a decision
having binding precedent only in respect of sweetened
carbonated water. It was the wake such cleavage in opinion
that the learned Single Judge referred these cases as per
order dated 25.9.2014. As noticed herein before, the other
cases were also referred following the order of reference
dated 25.9.2014.
16. The provisions of law which really form the bone
of contentions read thus:
23:Power of the Central Government to make rules.-
(1) The Central Government may, after consultation
with the Committee and after previous publication by
notification in the Official Gazette, make rules to carry out
the provisions of this Act:
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
Provided that consultation with the Committee may be
dispensed with if the Central Government is of the opinion
that circumstances have arisen which render it necessary to
make rules without such consultation, but, in such a case,
the Committee shall be consulted within six months of the
making of the rules and the Central Government shall take
into consideration any suggestions which the Committee
may make in relation to the amendment of the said rules.
(1-A) In particular and without prejudice to the
generality of the foregoing power, such rules may provide
for all or any of the following matters,namely:
(a) specifying the articles of food or classes of food for
the import of which a license is required and prescribing the
form and conditions of such license, the authority
empowered to issue the same [the fees payable therefor, the
deposit of any sum as security for the performance of the
conditions of the license and the circumstances under which
such license or security may be cancelled or forfeited] ;
(b) defining the standards of quality for, and fixing the
limits of variability permissible in respect of any article of
food;
(c) laying down special provisions for imposing
rigorous control over the production, distribution and sale
of any article or class of articles of food which the Central
Government may, by notification in the Official Gazette,
specify in this behalf including registration of the premises
where they are manufactured, maintenance of the premises
in a sanitary condition and maintenance of the healthy state
of human beings associated with the production,
distribution and sale of such article or class of articles;
(d) restricting the packing and labelling of any article
of food and the design of any such package or label with a
view to preventing the public or the purchaser being
deceived or misled as to the character, quality or quantity of
the article or to preventing adulteration;
(e) defining the qualifications, powers and duties of
Food Inspectors and public analyst;
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
34
(ee) defining the laboratories where samples of
articles of food or adulterants may be analysed by public
analysts under this Act;
(f) prohibiting the sale of defining the conditions of
sale of any substance which may be injurious to health when
used as food or restricting in any manner its use as an
ingredient in the manufacture of any article of food or
regulating by the issue of licenses the manufacture or sale
of any article of food;
(g) defining the conditions of sale or conditions for
license of sale of any article of food in the interest of public
health;
(h) specifying the manner in which containers for
samples of food purchased for analysis shall be sealed up or
fastened up;
(hh) defining the methods of analysis;
(i) specifying a list of permissible preservatives, other
than common salt and sugar, which alone shall be used in
preserved fruits, vegetables or their products or any other
article of food as well as the maximum amounts of each
preservative;
(j) specifying the colouring matter and the maximum
quantities thereof which may be used in any article of food;
(k) providing for the exemption from this Act or of any
requirements contained therein and subject to such
conditions, if any, as may be specified, of any article or class
of articles of food;
(l) prohibiting or regulating the manufacture,
transport or sale of any article known to be used as an
adulterant of food;
(m) prohibiting or regulating-
(i) the addition of any water, or other diluent or
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
35
adulterant to any article of food;
(ii) the abstraction of any ingredient from any article
of food;
(iii) the sale of any article of food to which such
addition or from which such abstraction has been made or
which has been otherwise artificially treated;
(iv) the mixing of two or more articles of food which
are similar in nature or appearance;
(n) providing for the destruction of such articles of
food as are not in accordance with the provisions of this Act
or of the rules made thereunder.
(2) Every rule made by the Central Government under
this Act shall be laid as soon as may be after it is made
before each House of Parliament while it is in session for a
total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before
the expiry of the session immediately following the session
or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses agree
that the rule should not be made, the rule shall thereafter
have effect only in such modified form or be of no effect, as
the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that rule.
17. Bearing in mind the various decisions referred
supra and also the provisions of law referred hereinbefore
we will consider the question what exactly is the dictum laid
down by the Hon'ble Apex Court in Pepsico's case (supra).
The best way to reach out to the same, is to refer to the
decision in Pepsico India Holdings (P) Ltd. v. Food
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
36
Inspector [2009 (2) KLT 69] (for short Pepsico India
Holdings' case only) rendered by a learned Judge of this
court from which the decision of the Hon'ble Apex Court in
Pepsico's case (supra) arose. It is relevant to extract
paragraph 5 in the said decision and it reads thus:
5. The learned counsel for the petitioners submits that the
cognizance taken against the petitioners is totally unjustified
and prays for invocation of the extraordinary inherent
jurisdiction under S. 482 Cr.P.C. to quash the prosecutions
against the petitioners on the following six specific grounds:
(1) No rules having been framed at the relevant time under
S. 23 (1a) (ee) of the Act by the Central Government
defining the laboratories where samples of articles of
food or adulterants may be analysed by the Public
Analysts under this Act, the Public Analysts who have
submitted the relevant reports in all these prosecutions
cannot be held to have complied with the law and
therefore their reports are liable to be eschewed and
ignored.
(2) No methods of analysis having been defined under S. 23
(1a) (hh) of the Act by the Central Government, the
reports submitted by the Public Analysts by following
whatever methods they thought to be appropriate are not
valid and correct and cannot be accepted at all - even at
this stage.
(3) At any rate, there are no validated methods of analysis
identified by the scientists so far to ascertain the
percentage pesticide residue present in a carbonated
beverage (i. e. , a complex matrix article) and therefore
the reports of the Public Analysts cannot be reckoned as
legally acceptable to found prosecutions against the
petitioners.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
37
(4) The Public Analysts in the reports issued by them have
not specifically opined that the presence of pesticide
residue at the levels detected by them is injurious to
health and consequently their conclusion that the article
is adulterated under S. 2 (ia) (h) of the Act cannot be
legally taken cognizance of.
(5) Even assuming that the Public Analysts in their reports
have opined that the presence of pesticide residue at the
levels detected by them are injurious to health, their
opinion that the presence of pesticide residue at that
level renders the articles injurious to health under S. 2
(ia) (h) of the Act is perverse and cannot be accepted -
even at this stage.
(6) At any rate, in the light of the decision in S. M. S.
Pharmaceuticals Ltd. v. Neeta Bhalla, (2005 (4) KLT 209
(SC)), the indictees who are only Directors of the
Company and against whom no better or specific
allegations are raised are not liable to face prosecution.
It is those grounds which were considered by the learned
Single Judge while rendering the decision in Pepsico India
Holdings' case (supra). Ground No.1 and 2 extracted above
would reveal that they relate to non-framing of the rules as
enabled under Section 23 (IA) (ee) and (hh) of the Act.
Evidently after considering the rival contentions it was held
by the learned Single Judge that the provisions under
Section 23 (IA) (ee) and (hh) are only enabling provisions
and not provisions which are mandatory in nature and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
38
further it was held that in such circumstances non-
formulation of rules under Section 23 (IA) (ee) and (hh)
could not be held fatal to the prosecution. Virtually,
contentions raised under ground 3, 4, 5 as extracted above,
in that case were resisted by the learned Public Prosecutor
contending that the petitioners therein, who are indictees,
did not choose to take resort to the valuable right available
under Section 13 (2)of the PFA Act. Evidently the further
contention was that an indictee who had not chosen to
invoke such a valuable right conferred on him could not
seek for premature termination of the prosecution seeking
invocation of the extra ordinary jurisdiction under Section
482 Cr.P.C. It is the decision rendered by the learned Single
Judge after considering grounds 1 to 6 as extracted above
that was taken up before the Hon'ble Apex Court which
ultimately culminated in Pepsico's case supra. As far as this
bunch of cases are concerned, their fate would depend upon
the answers to the question as to what is the ratio decidendi
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
39
of the decision in Pepsico's case (supra). It is in this context
that the fact that the learned Judge in Pepsico India
Holdings' case held that the provisions under Section 23
(IA) (ee) and (hh) are only enabling provisions and are not
mandatory and that the said findings were reversed by the
Hon'ble Apex Court in Pepsico's case (supra) assumes
relevance. Paragraph 27 in Pepsico's case (supra) reads
thus:-
"Sri. K N Bhat learned Senior Advocate who
appeared for the State of Kerala contended that
Section 23 of the 1954 Act though empowered the
Central Government to make rules to, inter alia,
define the laboratories where samples of articles of
food could be analysed by public analyst under the
Act as also to define the method of analysis under
sub Section 23 (IA) (ee) and (hh), the said power is
only discretionary and it was for the Central
Government act on the basis thereof. It was
further contended that non formulation of Rules
under Section 23 (IA) (ee) and (hh) for analysis of
beverages could not be construed as fatal to the
prosecution".
Evidently, referring to paragraph 37 of the decision in
Pepsico's case the learned ADGP contended that the width
of the dispute involved in Pepsico's case was only related to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
40
sweetened carbonated water and therefore the, decision in
Pepsico's case could not be understood as a binding
precedent in respect of other food items. Paragraph 37 of
the decision in Pepsico's case reads thus:
From the submissions made on behalf of the
respective parties, it is apparent that the width of the
dispute to be settled in these Appeals is not very wide. We
are only required to consider as to whether the presence
of 0.001 mg of Carbofuran per litre found in the
sweetened carbonated water, manufactured by the
Appellant-Company, can be said to be adulterated as per
Rule 65 of the 1955 Rules and under Section 2(ia)(h) of
the 1954 Act, particularly in the absence of any validated
standard of analysis provided for under the 1954 Act or
1955 Rules.
True that to support the said contention paragraph 39 and
40 thereunder were also brought to our notice. At the same
time, the relevant aspect to be noticed is that after
considering the rival contentions the findings of this Court
in Pepsico India Holding's case was virtually summarised
by the Hon'ble Apex Court in paragraph 41 thus:
The High Court summarised its view into several grounds
of challenge. Grounds 1 and 2 relate to the non-framing of
Rules under Section 23(1-A) (ee) and (hh) of the 1954 Act.
Grounds 3, 4 and 5 deal with the challenge thrown on
behalf of the Appellants to the submissions that the report
of the Public Analyst was not final and that the same could
be challenged under Section 13(2) of the said Act. Ground
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
41
6 deals with the criminal liability of the Directors of the
Company on account of the allegations against the
Company.
Going by the same it is evident that the Hon'ble Apex Court
found that this court summarised its view into several
grounds of challenge and further found that ground 1 & 2
relate to the non framing of Rules under Section 23(1-A)
(ee) and (hh) of the 1954 Act and grounds 3 to 5 deal with
the challenge thrown on the behalf of the appellants therein
to the submissions that a report of the public analyst was
final and the same could have been challenged under
Section 13 (2) of the said Act. It further held in paragraphs
44 & 45 thus:
44. The High Court also misconstrued the provisions of
Section 23(1-A)(ee) and (hh) in holding that the same were
basically enabling provisions and were not mandatory and
could, in any event, be solved by the Central Government by
framing Rules thereunder, by which specified tests to be
held in designated Laboratories could be spelt out.
Consequently, the High Court also erred in holding that the
non- formulation of Rules under the aforesaid provisions of
the 1954 Act could not be said to be fatal for the
prosecution.
45. As far as Grounds 3, 4 and 5 are concerned, the High
Court failed to consider the reasons given on behalf of the
Appellants for not sending the Company's sample to the
Forensic Laboratory, to the effect that, since neither any
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
42
validated method of analysis had been prescribed under
Section 23(1- A)(ee) and (hh) of the 1954 Act, nor had any
Laboratory been particularly specified for such examination,
such an exercise would have been futile. In our view, no
useful purpose could have been served by sending the
second sample to the Forensic Laboratory, unless a defined
tolerance limit of the presence of the pesticides was
available in regard to sweetened carbonated water. It may
be noted that the High Court had itself observed that mere
presence of insecticide residue to any extent could not
justify an allegation that the article of food was adulterated,
but contrary to such observation, the High Court went on to
hold that the sweetened carbonated water manufactured by
the appellants was adulterated within the meaning of
Section 2(ia)(h) of the 1954 Act.
Paragraph 45 thereunder would reveal that the Hon'ble
Apex Court found that the High Court failed to consider the
reasons given on behalf of the appellants for not sending
the Company's sample to the forensic laboratory, viz.,
neither any validated method of analysis had been
prescribed under Section 23 (I-A) (hh) and no laboratory
was specified for such examination under Section 23 (IA)
(ee). It was in that context the Hon'ble Apex Court held that
no fruitful purpose could have been served by sending the
second sample to the forensic laboratory. Thus it is evident
that in Pepsico India Holding's case a learned Judge of this
Court held that the provision under Section 23 (I-A) (ee) and
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
43
(hh) are only enabling provisions and are not mandatory
and in such circumstances non-formulation of rules under
Section 23(1A) (ee) and (hh) could not be held fatal to the
prosecution. But, the Hon'ble Apex Court categorically
found that the High Court has erred in holding that non-
formulations of provisions under the 1954 Act could not be
said to be fatal to the prosecution. As regards the nature of
the provision under Section 23 (IA) (ee) and (hh) are
concerned the findings of this Court in Pepsico's case that
they are only enabling provisions and are not mandatory
were reversed by the Hon'ble Apex Court holding that this
Court misconstrued them. When the Hon'ble Apex court
held that the provisions under the Section 23 (I-A) (ee) and
(hh) are not directory in nature these provisions which are
not directory shall have to be taken only as mandatory in
nature. True that such a finding was arrived at, while
dealing with a case where the item of food involved was
sweetened carbonated water. Merely because the item of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
44
food involved in that case is sweetened carbonated water
and at that point of time its tolerance limit was not
prescribed they cannot be taken as reasons for holding that
the decision of the Hon'ble Apex Court that the said
provision are not directory has to be confined only in
respect of the food item sweetened carbonated water. As
held by the Hon'ble Apex Court in Islamic Academy of
Education's case to find out the ratio decidendi of Pepsico's
decision the entire judgment has to be read. We have
already dealt with it. Evidently, the Hon'ble Apex Court
considered the provisions under Section 23 (1A) (ee) and
(hh) and held that this Court in 'Pepsico India Holding's
case' has misconstrued the provisions of Section 23 (1A)
(ee) and (hh) in holding that they are basically enabling
provisions and are not mandatory. It was also held that this
Court also erred in holding that the non-formulation of
Rules under the aforesaid provisions of 1954 Act could not
be said to be fatal for the prosecution. It is also very
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
45
relevant to note that the Hon'ble Apex Court has also held
that this court failed to consider the reasons given on behalf
the appellants therein for not sending to the
company's sample to the forensic laboratory. Evidently, the
Hon'ble Apex Court further observed that such an exercise
viz; by sending the second sample to the Forensic
Laboratory, would have been only futile as neither any
validated method of analysis had been prescribed nor any
laboratory had been particularly specified for such
examination. When such reasonings form the basis for
interfering with the findings of this Court in Pepsico India
Holding's case in respect of sweetened carbonated water,
how can it be said that those reasonings are confined only
to sweetened carbonated water and not applicable to any
other food items. It is also to be noted that by no stretch of
imagination it can be said that those provisions are
applicable only in respect of sweetened carbonated water
and are unrelated to other food items. As held by the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
46
Hon'ble Apex Court in the absence of any other additional
or different fact which could make a world of difference the
same principle cannot be applied differently. When a
learned Single Judge's finding that the provision under
Section 23 (1A) (ee) and (hh) are only enabling provisions
and are not mandatory was held as misconstructions of
these provisions and the further finding that non-
formulation of the Rules under Section 23 (1A) (ee) and (hh)
could not be said to be fatal for the prosecution was held as
erred decision by the Hon'ble Apex Court and how can
another Bench of this Court, whatever be strength,
maintain, virtually, the same views by distinguishing the
Apex Court decision or refrain from following the Apex
Court's decision when it is cited. In our considered view the
decision that those provisions cannot be said to be directory
the Hon'ble Apex Court is to be applied in all cases
wherever a report of a public analyst in respect of an item
of food as adulterated has to form the basis for prosecution.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
47
Needless to say that such cases when the analysis that
culminated in the report was made from a laboratory which
was not a defined one in terms of Section 23 (1A) (ee) of the
Act applying the ratio in Pepsico's case the failure to
conduct it from a defined laboratory has to held as fatal to
the prosecution. It is also to be noted that no such
laboratories were defined while 'the Act' was in force or in
other words till the Act was repealed. As held by the
Hon'ble Apex Court in Fuzlunbi's case whether the earlier
decision of the Apex Court is altogether unpalatable and to
be interpreted narrowly by following the known devices is
an area permissible to be resorted only by the Hon'ble Apex
Court and as far as the High Courts are concerned once
such earlier decision was cited it is impermissible to deviate
from it not merely because of the jurisprudence of
precedence, but also because the mandate under Article
141 of the Constitution of India. On scanning of the
decision of the Hon'ble Apex Court in Pepsico's case (supra)
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
48
we can only arrived at the conclusion that there is a
declaration binding under Article 141 of the Constitution of
India to the effect that the provisions under Section 23 (I-A)
(ee) and (hh) are not directory. If it is not directory it can
only be mandatory. In such circumstances when once the
Hon'ble Apex Court held as above the respondents cannot
be heard to contend that the said provisions are virtually
directory in nature. The upshot the discussion makes us to
hold that the decision in Tito Varghese's case (supra)
cannot be said to be correctly decided inasmuch as it
cannot be said that the decision in Pepsico's case is only
binding precedent as regards the food article 'sweetened
carbonated water'.
18. Bearing in mind the fact that the Hon'ble Apex
Court in Pepsico's case (supra) held that the provisions
under Section 23 (I-A) (ee) and (hh) are not directory and
that this court has erred in holding that they are only
enabling provisions we will proceed further to answer the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
49
referred questions. For answering the terms of reference a
broad understanding of the said declaration is necessary.
When once the Hon'ble Apex Court held that the said
provisions are not directory and the failure to adhere to the
provisions cannot be said to be not fatal to the prosecution
it has to be understood and applied in all cases where a
public analyst was to carry out an analysis and to give a
report to form the basis for launching the prosecution.
Thus, evidently, for that purpose the report should be one
made after conducting an analysis in a laboratory defined
under Section 23 (I-A) (ee). It is to be noted that after the
decision in Pepsico's case (supra) by the Hon'ble Apex Court
a notification was followed whereby rule in relation to
Section 23 (I-A) (hh) was framed as Rule 4 (9) of the PFA
Rules. Thus, in the light of Pepsico's case (supra) in order
to be reliable and to be taken the basis for the purpose of
launching prosecution a report by a public analyst must be
one made after conducting an analysis in a laboratory
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
50
defined under Section 23 (I-A) (ee) of the Act. In that
context the indisputable common case is that till the
repealing of 1954 Act no laboratory was defined in terms of
the provision under Section 23 (I-A) (ee). If that be so,
there could not have been any question of conducting an
analysis by a public analyst under the PFA Act in a
laboratory defined under Section 23 (I-A) (ee) of the PFA
Act. In view of the above findings and conclusions we will
answer the questions referred.
First question referred is as follows:
(1) Could all the prosecutions under the Act of 1954 be stifled
by raising a contention that the laboratories or methods of
analysis were not defined?
In the light of what we have held herein before the said it
can only be answered in the following manner:
Wherever an analysis has to be conducted from a
laboratory to find whether the particular sample of item of
the particular food article is adulterated, to form the basis
for initiation of prosecution under the PFA Act the report of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
51
the analyst in relation to that sample must be one
conducted in a laboratory defined under Section 23 (IA-)
(ee). Since no such laboratory was defined till the repealing
of the PFA Act wherever an analysis from a laboratory was
inevitable for making a report regarding item concerned as
adulterated there cannot be any successful prosecution in
the absence of such a report. In such circumstances the
prosecution proceedings have to be terminated for the
failure to define laboratories in terms of Section 23 (IA-)
(ee) and the consequential failure to conduct an analysis of
the particular sample by the public analyst from such a
laboratory. In other words taking note of the nature of the
food article involved and the method to be employed to find
out the adulteration if an analysis from a laboratory is not at
all required in such circumstances the prosecution cannot
be stifled on the ground that the laboratories in terms of
provisions under Section 23 (IA) (ee) were not defined. It
cannot be said that all the prosecutions under the 1954 Act
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
52
should be stifled owing to the failure to define laboratories
in terms of Section 23 (I-A) (ee) as there may be cases
registered against persons for contravention of the
provisions under Section 16 (1) (c), 16 (1) (d) and 14A
(Prevention of Food Adulteration Act, 1954). So also a case
where the article in food was lifted and sent for analysis
prior to the introduction of the provisions under Section 23
(I-A) (ee) viz 1.4.1976 cannot be stifled as anything
previously done could not be invalidated owing to the failure
to define laboratory in terms of Section 23 (I-A) (ee) in view
of the provisions under Section 23 (2). In the context of the
term of reference No.1 it is to be noted that subsequent to
Pepsico's case (supra) the method of analysis was, in fact,
defined and it was brought into by incorporating Rule 9 (4)
in the PFA Rules with effect from 25.3.2008.
19. The second question referred is as hereunder:
(2) Is it proper to hold that since Central Government has not
taken steps to effectuate Sec.23(1A) (ee) and (hh) of the Act
of 1954, no prosecution will lie under the Act of 1954 even if
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
53
it is established that the standards prescribed for various
food items have been flouted?
In respect of items of food articles where, for holding that
the standard prescribed for the same was flouted or it was
not maintained if an analysis from a laboratory is inevitable
in such cases also if the analysis was conducted by the
public analyst under the PFA Act in a laboratory not defined
in terms of Section 23(1A) (ee), in the light of Pepsico's
decision, no prosecution will lie based a report made after
such an analysis.
The last question referred is follows:
(3). Whether the ratio in Pepsico's case (supra) can be applied
to all cases of alleged food adulteration under the Act of 1954
irrespective of the fact whether or not standards have been
prescribed for food items?
In cases where standard is prescribed or in respect of a
food item to say that the said item of food is adulterated and
to launch the prosecution, if an analysis from a laboratory
by a public analyst is inevitable in such circumstances also
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
54
the ratio in Pepsico's case (supra) will be applicable. In the
light of the answers to the referred questions it has become
absolutely unnecessary to go into the question referred
herein before based on the decision in Narayana Reddiar's
case which was declined to be referred.
20. Having answered the reference as above, we are
of the view that the fate of the criminal revision petitions
and the Crl.M.Cs. depend upon the question whether in
respect the item of food involved in individual cases, the
sample of which was collected, an analysis from a
laboratory is required or not for holding the same as
adulterated. If the answer is in the affirmative necessarily
in the absence of a report made after an analysis from a
laboratory defined in terms of the provisions under Section
23 (I-A) (ee) there can be no successful prosecution. We
will therefore, consider the individual cases in the aforesaid
manner and in the light of the answers to the referred
questions. Needless to say that if the answer to the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
55
aforesaid question in respect of a particular case is in the
negative there can be no legal impediment in continuing
with the prosecution. In view of the fact that till the
repealing of the said Act no laboratories were defined in
terms of Section 23 (I-A) (ee) all those cases have to be
decided based on a consideration as aforesaid.
Crl.R.P.No.1814 of 2002
21. This criminal revision petition is filed against the
judgment in Crl.Appeal No.186 of 1997 passed by the Court
of Additional Sessions Judge (Adhoc-I), Thalasserry
confirming the conviction and sentence passed by the Court
of Judicial First Class Magistrate, Thalasserry in S.T.No.834
of 1992.
22. The item of food article involved in this case is
'Ragi' and the standard therefor, is prescribed under
Appendix B-A.18.06. The sample was lifted on 6.2.1992.
Evidently, on a complaint filed based on Ext.P13 report of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
56
the public analyst cognizance was taken. True that Ext.P13
was superseded by Ext.P14 report of the Central Food
Laboratory based on an application filed by the revision
petitioner under section 13(2) of the PFA Act. Going by
Ext.P13 report, the result of analysis was as follows:-
Moisture : 8.8 percent
Foreign matter : Absent
Other edible grains : Absent
Weevilled grains : Absent
Damaged grains : Absent
Test for coaltar dyes : Positive
Coaltar dye-Carmoisine
(Colour Index 14720) : Present
23.The opinion of the public analyst was that the
sample analysed contained Coaltar dye-Carmoisine and
therefore, adulterated. Going through the provisions under
Rules 23 and 29 of the PFA Rules, it is evident that in the
article of food mentioned above, the use of Coaltar dye-
Carmoisine is impermissible. Evidently, in this case the
presence of Coaltar dye-Carmoisine is detected based on an
analysis conducted not in a laboratory as defined under
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
57
section 23(1A)(ee) of the PFA Act. In the light of the dictum
laid down by the Hon'ble Apex Court in Pepsico India
Holdings Pvt.Ltd v. Food Inspector [2010 (4) KLT 706
(SC)], as long as a report of public analysis is one prepared
not from a laboratory defined in terms of the provisions
under section 23(1A)(ee) of the PFA Act, it cannot be a basis
for a prosecution. In such circumstances, when the
indisputable position obtained in this case is that Ext.P13
report based on which the complaint was filed was not a
report prepared based on an analysis conducted by a
laboratory defined in terms of section 23(1A)(hh) the trial
court could not have taken cognizance based on such a
complaint. In such circumstances, this revision petition is
liable to succeed and accordingly, it is allowed. The
judgment in Crl.Appeal No.186 of 1997 passed by the Court
of Additional Sessions Judge (Adhoc-I), Thalasserry and the
judgment passed by the Court of Judicial First Class
Magistrate, Thalasserry in S.T.No.834 of 1992 are set aside.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
58
The bail bond stands cancelled.
Crl.R.P. No.1518 OF 2003
24. This criminal revision petition is filed against the
judgment in Crl.Appeal No.98 of 2000 passed by the Court
of Session, Manjeri confirming the conviction and sentence
passed by the Court of Judicial First Class Magistrate,
Ponnani in S.T.No.3272 of 1991.
25. The item of food article involved in this case is
gingelly oil and the standard therefor, is prescribed under
Appendix B.A.17.11. The sample was lifted on 22.10.1991.
Evidently, at that point of time, neither the laboratory in
terms of the provisions under section 23(1-A)(ee) nor the
method of analysis in terms of the provisions under section
23(1-A)(hh) were defined by the Central Government.
Ext.P10 is the report of the public analyst. True that it was
superseded by Ext.P11 report based on an application filed
by the revision petitioner under section 13(2) of the PFA
Act. The trial court took cognizance on the complaint based
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
59
on Ext.P10 report. Based on the decision of the Hon'ble
Apex Court in Pepsico India Holdings Pvt.Ltd v. Food
Inspector [2010 (4) KLT 706 (SC)], a report of a public
analyst in order to be reliable and to form the basis for
prosecution, must be one based on an analysis conducted
from a laboratory defined in terms of the provisions under
section 23(1-A)(ee) after following the prescribed method
under section 23(1-A)(hh). It is common case that Ext.P10
is not such a report. Indisputably, till the repealing of PFA
Act, no such laboratories were defined. In such
circumstances, in terms of the dictum laid down by the
Hon'ble Apex Court in Pepsico's case to the effect that the
provisions under section 23(1-A)(ee) is mandatory, the trial
court could not have taken cognizance on the complaint
based on Ext.P10 report. In short, this revision petition is
liable to be allowed. Accordingly, it is allowed. The
judgment in Crl.Appeal No.98 of 2000 passed by the Court
of Session, Manjeri and the judgment passed by the Court of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
60
Judicial First Class Magistrate, Ponnani in S.T.No.3272 of
1991 are set aside. The bail bond stands cancelled.
Crl.R.P. No.1665 OF 2003
26. This criminal revision petition is filed against the
judgment in Crl.Appeal No.388 of 1998 passed by the
Additional Sessions Judge (Fast Track Court-I),
Thiruvananthapuram confirming the conviction and
sentence passed by the Court of Judicial First Class
Magistrate, Attingal in C.C.No.436 of 1993.
27. The item of food article involved in this case is 'rose
rice' and the standard therefor is prescribed under
Appendix B.A.18.06.04. The sample was lifted on
25.11.1992. Ext.P14 is the report of the public analyst
based on which the complaint was filed. The result of
public analysis is as follows:-
Moisture:(obtained by heating the
pulverised grains at 130:C-133:C for two
hours)-12.9 percent.
Foreign matter-Coating of Kavi (Red
Ochre):Present.
Damaged grains:Absent
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
61
Weevilled grains:Absent
Iron as Fe2O3 arising as a result of
coating of kavi:35.8 milligrammes per
1000 grammes.
28. Though Ext.P14 was subsequently superseded by
Ext.P17 report of the Central Food Laboratory, it is evident
that in this case, for finding out the sample of item of food
whether adulterated or not, an analysis from a laboratory
was conducted. In fact, a scanning of Ext.P14 report itself
would reveal that for finding the sample was adulterated for
the reasons stated therein an analysis from a laboratory was
inevitable and in fact, it was conducted by the public
analyst which culminated in Ext.P14 report. We have found
that the basis of complaint is the report of the public analyst
and evidently, for finding whether the sample of an item of
food the sample of which was collected on 25.11.1992 was
adulterated or not, the public analyst had conducted
analysis from a laboratory and Ext.P14 is its report. It is
evident that an analysis from a laboratory was inevitable to
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
62
find out whether the sample of food taken in this case was
adulterated or not. But, in the light of the decision in
Pepsico India Holdings Pvt.Ltd v. Food Inspector
[2010 (4) KLT 706 (SC)], such a report must have been
one prepared by a public analyst after conducting an
analysis in a laboratory defined in terms of the provisions
under section 23(1-A)(ee) after following the prescribed
method under section 23(1-A)(hh). Indisputably, till the
repealing of PFA Act, no such laboratories were defined. In
such circumstances, in terms of the dictum laid down by the
Hon'ble Apex Court in Pepsico's case to the effect that the
provisions under section 23(1-A)(ee) is mandatory, the trial
court could not have taken cognizance on the complaint
based on Ext.P14 report. In short, this revision petition is
liable to be allowed. Accordingly, it is allowed. The
judgment in Crl.Appeal No.388 of 1998 passed by the Court
of Additional Sessions Judge, Thiruvananthapuram and the
judgment passed by the Court of Judicial First Class
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
63
Magistrate-I, Attingal in C.C.No.436 of 1993 are set aside.
The bail bond stands cancelled.
Criminal R.P.No.2173 of 2003
29. This criminal revision petition is filed against the
judgment in Crl.A.No.7/1997 dated 26.7.2003 passed by the
Court of Additional District and Sessions Judge (Adhoc)
Court-I, Pathanamthitta confirming the order of conviction
passed by the Court of Judicial First Class Magistrate,
Ranny in C.C.No.485/1995.
30. The article of food involved in this case is 'bengal
gram' (Cicer arietinum Linn). Appendix B-A.18.06.08 of the
PFA Rules. Evidently in this case Ext.P18 is the report of
the public analyst. A perusal of the same would reveal that
after the analysis it was reported that the presence of uric
acid in the sample was 400 gm per kilogram. The sample
was collected on 18.1.1992. Indisputably, as on 23.02.1995
no laboratories in terms of the provisions under Section 23
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
64
(1-A) (ee) were defined. So also the method of analysis in
terms of Section 23 (1A) (hh) was also not defined.
Evidently, in this case in such circumstances the public
analyst must have conducted the analysis from a laboratory
not defined in terms of Section 23 (1-A) (ee) without
following any defined method. True that in this case after
receiving the report of the public analyst the sample was
sent for analysis from the Central Food Laboratory. But, in
the light of the dictum laid down by the Hon'ble Apex Court
in Pepsico's case taking into account the fact that there
was no report by the public analyst after conducting an
analysis in a laboratory defined under Section 23 (1-A) (ee)
following the method of analysis prescribed under 23 (1A)
(hh) cognizance could not have been taken in this case.
When that be the circumstances, the impugned judgement
invites interference and this revision petition is liable to be
allowed.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
65
31. No doubt, for determining the question whether
the presence of uric acid is beyond the prescribed limit, an
examination in a laboratory by a public analyst is inevitable
and, but at the same time, in this case it was conducted not
in a laboratory defined under Section 23 (1-A) (ee).
32. In the said circumstances, this criminal revision
petition is allowed and the judgement in Crl.A.No.7/1997
dated 26.7.2003 passed by the Court of Additional District
and Sessions Judge (Adhoc) Court-I, Pathanamthitta
confirming the order of conviction and the judgement in
C.C.No.485/1995 passed by the Court of Judicial First Class
Magistrate, Ranny are set aside. The bail bond stands
cancelled.
Crl.R.P. No.2511 of 2003
33. This criminal revision petition is filed by the second
accused in S.T.No.3881 of 1997 on the files of the Court of
Judicial First Class Magistrate, Kunnamkulam. He was
tried for various offences under the Prevention of Food
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
66
Adulteration Act, 1955 (for short the 'PFA Act') read with
different rules under the Prevention of Food Adulteration
Rules (for short the 'PFA Rules') along with the first accused
therein. Feeling aggrieved by his conviction as also the
acquittal of the revision petitioner herein/second accused
therein, the first accused preferred Crl.A.No.330 of 2000
and Crl.R.P.No.63 of 2000 before the Court of III Additional
Sessions Judge (Adhoc) Fast Track Court No.I, Thrissur. In
fact, Crl.R.P.No.63 of 2000 was filed by the first accused in
S.T.No.3881 of 1997 against the order of acquittal of the
revision petitioner herein/second accused. The said appeal
and the revision petition were jointly heard and the learned
Sessions Judge, by a common judgment, allowed the appeal
and the order of conviction passed against the second
accused by the learned Magistrate was set aside and he was
acquitted. But at the same time, the learned Sessions Judge
allowed the revision petition and the acquittal of the
revision petitioner/second accused was set aside and the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
67
case was remanded to the court below for fresh disposal
against the first counter petitioner therein ie., against the
revision petitioner herein. It is in the said circumstances
that this revision petition has been filed.
34. During the course of argument, a question crop up
for consideration whether against the order of the learned
Sessions Judge in revision, a second revision would lie
before this Court. It is contended by the learned counsel for
the revision petitioner that as regards the revision
petitioner, he had not invoked the revisional powers and in
fact, the revision before the Court of Session was filed by
the first accused in S.T.No.3881 of 1997. It is further
submitted that in such circumstances, the revisional power
of this Court would still be available. True that a revision
before High Court against an order in revision by the Court
of Session is maintainable if both revision petitions were not
filed by the same parties. This position is clear from a
perusal of the provisions under section 399(3) of the Code
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
68
of Criminal Procedure, 1973. In such circumstances, there
cannot be any doubt with respect to the position that as
long as the revision before the Sessions Judge was not filed
by the revision petitioner herein this revision petition filed
against the order in revision passed by the Court of Session
in Crl.R.P.No.63 of 2000 is maintainable before this Court.
35. The item of food article involved in this case is
'greenpeas'. Going by Ext.P13 report of the public analyst,
the presence of moisture content is 9.7 %. Weevilled grains
6.6% and Uric acid content is 107 grams per kilogram in the
sample. The sample was lifted on 18.1.1996. Evidently, at
that point of time, neither the laboratory in terms of the
provisions under section 23(1-A)(ee) and the method of
analysis in terms of the provisions under section 23(1-A)(hh)
were defined by the Central Government. At the same time,
it is evident that for ascertaining whether the article of food
the sample of which was collected on 18.1.1996 was
adulterated or not, the public analyst conducted analysis
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
69
from a laboratory and it is after such analysis that Ext.P13
report was filed. In the light of the dictum laid down by the
Hon'ble Apex Court in Pepsico India Holdings Pvt.Ltd v.
Food Inspector [2010 (4) KLT 706 (SC)], after 1.4.1976,
in order to be reliable and to form the foundation for a
prosecution, a report by a public analyst must be one based
on the analysis conducted in a laboratory as defined under
section 23(1-A)(ee) of PFA Act. Indisputably, even till the
repealing of PFA Act, no such laboratories were defined
though the method of analysis was defined prior to its
repealing. In such circumstances, we are of the view that
the decision in Pepsico's case is squarely applicable in this
case inasmuch as the report of the public analyst viz.,
Ext.P13 is the basis for the prosecution against the revision
petitioner herein. When the position of law, after 1.4.1976
in order to be reliable and to be a foundation for a
prosecution, report must be one based on the analysis
conducted from a laboratory defined under section 23(1-A)
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
70
(ee) and in view of the position that Ext.P13 is not such a
report the trial court could not have taken cognizance on
the complaint filed based on the said report. In such
circumstances, this revision petition is liable to be allowed.
Accordingly, it is allowed. Order passed by the Court of III
Additional Sessions Judge (Adhoc) Fast Track Court No.I,
Thrissur in Crl.R.P.No.63 of 2000 is set aside.
Criminal R.P.No.317 of 2004
36. This criminal revision petition is filed against the
judgment in Crl.A.No.280/2002 dated 19.12.2003 passed by
the Court of Additional Sessions Judge-III (Adhoc) Fast
Track Court-I, Thrissur confirming the order of conviction
passed by the Court of Judicial First Class Magistrate,
Chalakudy in S.T.No.564/1995.
37. The article of food involved in this case is
'horsegram'. The date of lifting of sample was on 23.2.1995.
Admittedly, no specific standard has been prescribed
therefor and the standard to be followed was the general
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
71
standard under Appendix 18.06.14, viz., under the head the
caption 'ANY OTHER FOODGRAMS for any other food
grains not specified'. Indisputably, as on 23.02.1995 no
laboratories in terms of the provisions under Section 23
(1-A) (ee) were defined. So also the method of analysis in
terms of Section 23 (1-A) (hh) was also not defined then.
Evidently, in this case in such circumstances the public
analyst could have conducted and must have conducted an
analysis from a laboratory not defined in terms of Section
23 (1-A) (ee) and following a method not defined. There is
conspicuous absence of the method followed in the report
by the public analyst which is Ext.P12. True that in this
case after receiving the report of the public analyst the
sample was sent for analysis from the Central Food
Laboratory. But in the light of the dictum laid down by the
Hon'ble Apex Court in Pepsico's case and taking into
account the fact that there was no report by the public
analyst after conducting an analysis in a laboratory defined
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
72
under Section 23 (1-A) (ee) following the method of analysis
prescribed Section 23 (1-A) (hh) cognizance could not have
been taken in this case on the complaint. When that be the
circumstances, the impugned judgement invites
interference and this revision petition is liable to be
allowed.
38. In the said circumstances, this criminal revision
petition is allowed and the judgement in Crl.A.No.280/2002
dated 19.12.2003 passed by the Court of Additional
Sessions Judge-III (Adhoc) Fast Track Court-I, Thrissur
confirming the order of conviction and the judgment of the
Court of Judicial First Class Magistrate Court, Chalakudy in
S.T.No.564/1995 are set aside. The bail bond stands
cancelled.
CRL.R.P. No.439 OF 2004
39. This criminal revision petition is filed against the
judgment in Crl.Appeal No.25 of 2001 passed by the Court
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
73
of Additional District & Sessions Judge, Kozhikode
confirming the conviction and sentence passed by the Court
of Judicial First Class Magistrate, Kozhikode in S.T.No.515
of 1999.
40. The item of food article involved in this case is
'curd' and the standard therefor, is prescribed under
Appendix B.A 11.02.04. The sample was lifted on
27.11.1996. Evidently, at that point of time, neither the
laboratory in terms of the provisions under section 23(1-A)
(ee) and the method of analysis in terms of the provisions
under section 23(1-A)(hh) were defined by the Central
Government. After the report from the public analyst the
complaint was filed and the revision petitioner herein
applied for analysis from the Central Food Laboratory in
terms of the provisions under section 13(2) of the PFA Act
and Ext.P13 is the report of the Central Food Laboratory.
Ext.P10 is the report of public analyst. The said report of
analysis runs as follows:-
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
74
Milk fat : 6.0 percent
Milk solids not fat : 6.3 percent
Test for starch : Negative
Test for cane sugar : Negative
41. True that based on the application submitted by
the revision petitioner under section 13(2) of the PFA Act,
an analysis from the Central Food Laboratory was
conducted and Ext.P13 is the report. We have found that
the basis of a complaint of this nature is the report of the
public analyst and evidently, for finding that the item of
food the sample of which was collected on 27.11.1996 was
adulterated or not, the public analyst had conducted
analysis from a laboratory and Ext.P10 is its report. It is
evident that an analysis from a laboratory was inevitable to
find out whether the sample of food taken in this case was
adulterated or not. In the light of the decision of the
Hon'ble Apex Court in Pepsico India Holdings Pvt.Ltd v.
Food Inspector [2010 (4) KLT 706 (SC)], such a report
must be prepared by a public analyst after conducting an
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
75
analysis in a laboratory defined in terms of the provisions
under section 23(1-A)(ee) after following the prescribed
method under section 23(1-A)(hh). Indisputably, till the
repealing of PFA Act, no such laboratories were defined. In
such circumstances, in terms of the dictum laid down by the
Hon'ble Apex Court in Pepsico's case to the effect that the
provisions under section 23(1-A)(ee) is mandatory, the trial
court could not have taken cognizance on the complaint
based on Ext.P10 report. In short, this revision petition is
liable to be allowed. Accordingly, it is allowed. The
judgment in Crl.Appeal No.25 of 2001 passed by the Court
of Additional District & Sessions Judge, Kozhikode and the
judgment passed by the Court of Judicial First Class
Magistrate, Kozhikode in S.T.No.515 of 1999 are set aside.
The bail bond stands cancelled.
Crl.R.P No.2594 OF 2005
42. This criminal revision petition is filed against the
judgment in Crl.Appeal No.162 of 1997 passed by the Court
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
76
of II Additional Sessions Judge, Thiruvananthapuram.
43. While considering the reference we have made it
clear that the decision of the Hon'ble Apex Court in
Pepsico's case could not be applicable in a case where
prosecution was launched for any of the violations
absolutely unconnected with adulterations. It is the case of
the petitioner that the item of food article the sample of
which was collected on 21.4.1993 was found adulterated not
based on an analysis conducted from a laboratory defined in
terms of Section 23(1A)(ee) of the PFA Act. But at the same
time, it is evident that there is conviction for the offence
under Rule 50 of the Prevention of Food Adulteration Rules,
1955. It is also to be noted that in this case, the lower court
records were not called for. In such circumstances, place
this matter before the Single Bench for considering the
same in accordance with law, after calling for the records.
Crl.M.C.No.417 of 2011
44. The petitioner is the 2nd accused in
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
77
C.C.No.1130 of 2009 on the files of the Court of Judicial
First Class Magistrate, Vaikom. Annexure-D is the report
of the Public Analyst based on which Annexure-A complaint
was filed. Going by Annexure-D report of the Public Analyst
the food article which is a `Milk Chocolate' on analysis
found to have been contained uric acid to an extent of not
less than 71.0% per ppm and that consumption of uric acid
is injurious to health and therefore, it is unfit for human
consumption. It is on that ground that the sample of food
which was collected on 11.11.2003 was found adulterated.
Evidently, the presence of uric acid in the aforesaid food
article was found only after conducting an analysis from a
laboratory as is evident from Annexure-D. The presence of
uric acid could not have been detected without conducting
an analysis from a laboratory. In fact, in this case,
Annexure-D would reveal that such analysis was conducted
and the extent of uric acid present in the sample was
detected based on such an analysis. In view of the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
78
indisputable position obtained that till the repealing of the
Prevention of Food Adulteration Act, 1954 no laboratory in
terms of Section 23(1-A)(ee) was defined by the Central
Government Annexure-D could not be a report prepared by
the Public Analyst after conducting an analysis from such a
laboratory defined in terms of the said provision under the
Prevention of Food Adulteration Act. In view of the decision
of the Hon'ble Apex Court in Pepsico India Holdings (P)
Ltd. v. Food Inspector (2010 (4) KLT 706 (SC)) in order
to be reliable and to form a foundation for a prosecution
wherever a report of the Public Analyst from a laboratory is
required it must be one prepared after conducting an
analysis from a laboratory defined under Section 23(1-A)
(ee) of the Prevention of Food Adulteration Act, 1954.
45. Having heard the learned counsel for the
petitioners and also the learned Public Prosecutor and also
in view of the indisputable position that such laboratories
were not defined till the repealing of the Prevention of
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
79
Food Adulteration Act, 1954 the report which formed the
basis for the complaint can only be said to be a report
prepared without conducting an analysis in a laboratory
defined under Section 23(1-A)(ee) of the Act. In the said
circumstances, in the light of the decision in Pepsico's case
(supra) we have no hesitation to hold that there cannot be a
successful prosecution against the petitioner. In such
circumstances, it is an eminently fit case for invocation of
the inherent power under Section 482, Cr.P.C. in the
interest of justice, and it avoid the wasteful exercise of the
invaluable judicial time. In the said circumstances, this
Crl.M.C. is allowed. The complaint and all further
proceedings against the petitioner in C.C.No.1130 of 2009
on the files of the Court of Judicial First Class Magistrate,
Vaikom are hereby quashed.
Crl.M.C.Nos.2105, 2106, 2932 & 3128 of 2011
46. The item of article involved in all these cases is one
and the same viz., `Turmeric powder'.
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
80
47. In Crl.M.C.No.2105 of 2011 the first petitioner is
the nominee of the second petitioner company (M/s.ITC
Limited). They were respectively accused Nos.3 and 4 in
C.C.No.221 of 2011 on the files on the Court of Judicial First
Class Magistrate -1, Thrissur. In Crl.M.C.No.2106 of 2011
the petitioner who is the nominee of M/s.ITC Ltd. was the
second accused in C.C.No.157 of 2011 on the files of the
Court of Additional Chief Judicial Magistrate, Ernakulam.
In Crl.M.C.No.2932 of 2011 the petitioner was the first
accused in C.C.No.157 of 2011 on the files of the same
court. In Crl.M.C.No.3128 of 2011 the petitioners are
respectively the distributor and vendor of the products of
M/s.ITC Ltd. and they were respectively accused Nos.1 and
2 in C.C.No.221 of 2011 on the files of the Court of Judicial
First Class Magistrate -1, Thrissur. All these criminal
miscellaneous cases have been filed seeking quashment of
the proceedings before the respective trial court essentially,
based on the contentions relying on the decision of the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
81
Hon'ble Apex Court in Pepsico India Holdings private
Limited v. Food Inspector and another ((2011) 1 SCC
(Cri) 8 = (2011) 1 SCC 176). The crux of the contentions
in all these cases is that presence of foreign starch and
Lead Chromate was assigned as the reason for holding the
sample of articles involved in these cases as adulterated.
Ash was also detected without conducting a chemical test.
With respect to the question whether the percentage of the
ingredients such as ash insoluble in HCl could have been
ascertained by mere ocular examination without conducting
a chemical test virtually came up before the Hon'ble Apex
Court and in paragraph 5 of the decision in Jagdish
Chandra v. State of U.P. (1981 (1) FAC 33) it was held
thus:-
"A glance at the above Rules would show
that the percentage of the various
ingredients such as ash insoluble in HCl or
volatile oil or moisture in the sample in
question, cannot be ascertained with any
degree of accuracy by mere ocular
examination under a microscope. Chemical
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
82
tests, including treatment of the ash in the
sample with Hydrochloric Acid would be a
must. Since in the instant case, the sample
was not subjected to any chemical test or
analytical process, the opinion of the Public
Analyst was not entitled to any weight
whatsoever."
From the aforesaid decision it is evident that in order to find
the percentage of ash insoluble in HCl mere ocular
examination is not sufficient whereas chemical test has to
be conducted. That apart, in all these cases, the report of
the Public Analyst based on which complaints were filed
have been produced as Annexure-C. They would reveal that
apart from the ash insoluble in HCl presence of foreign
starch and Lead Chromate was also detected. Annexure-C
in all these cases would reveal that the method of test
employed for detecting the same was D.G.H.S. Manual. As
held by the Hon'ble Apex Court in respect of ash insoluble
in HCl there cannot be any doubt with respect to the
position that the presence of foreign starch and Lead
Chromate also could not have been ascertained with any
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
83
degree of accuracy without conducting chemical test. In
the light of the decision of the Hon'ble Apex Court in
Pepsico's case (supra) such analysis or the chemical test
should have been conducted by the Public Analyst and in
order to make the report reliable it should have been
conducted only from a laboratory defined under Section 23
(1-A)(ee) of the Prevention of Food Adulteration Act, 1954.
Indisputably, no such laboratories were defined in terms of
the said provision till the repealing of the Prevention of
Food Adulteration Act, 1954.
48. We have heard the learned counsel for the
petitioners in these cases and also the learned Public
Prosecutor
49. Indisputably, in all these cases cognizance
was taken by the respective trial courts on the complaints
filed based on Annexure-C report, the report of Public
Analyst. The nature of the result has already been referred
to hereinbefore. A perusal of Annexure-C report in all these
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
84
cases would reveal that presence of articles insoluble in
dilute HCl and Lead Chromate was detected. For the
detection of the same an analysis from a laboratory by a
Public Analyst was inevitable and in fact, such analytical
reports are the foundation for the prosecution in all these
cases. At the same time, in view of the indisputable position
obtained from the fact that till the repealing of the
Prevention of Food Adulteration Act, 1954 no laboratories
from where a Public Analyst could conduct an analysis in
terms of Section 23(1-A)(ee) were defined there could not
have been a report after conducting analysis in such a
laboratory defined in terms of the aforesaid provision.
When that was lacking, in view of the decision of the
Hon'ble Apex Court in Pepsico's case (Supra) there cannot
be a successful prosecution as the provision under Section
23(1-A)(ee) is mandatory. In view of the said
circumstances, without all peradventure we can say that
there cannot be any successful prosecution in any of these
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
cases. When that be the position, to avoid the wasteful
exercise and also to avoid the loss of invaluable judicial time
we are of the view that the proceedings in all the above
cases to be terminated invoking the inherent power under
Section 482 Cr.P.C. in the interest of justice. In the
aforesaid cases cognizance was taken of the offences under
Sections 2(ia), (a), (c), (h), 7(i) (v) vi) read with 16(1-A) 17
(1)a(i), (b) and Rule 5 of appendix `B' item A, 05-20-01 and
44(h) of PFA Rules 1955 on the complaints filed based on
Annexure-C reports of the Public Analyst and the said
reports were prepared by the Public Analyst after
conducting an analysis in a laboratory which is not one
defined under Section 23(1-A)(ee) of the Prevention of Food
Adulteration Act, 1954. In the said circumstances, in view
of the manner in which we answered the questions referred,
in the light of the decision of the Hon'ble Apex Court in
Pepsico's case (supra), the said reports of the Public
Analyst could not have been the basis for taking cognizance
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
on the complaints filed based on Annexure-C reports of the
Public Analyst as they could not be sustained in the eye of
law. In the said circumstances, the complaints based on
Annexure-C reports and all further proceedings in
C.C.No.221 of 2011 pending on the files of the Court of
Judicial First Class Magistrate -1, Thrissur to the extent it
applies to the petitioners in Crl.M.C.Nos.2105 & 3128 of
2011 and the complaints based on Annexure-C reports and
all further proceeding in C.C.No.157 of 2011 on the files of
the Court of Additional Chief Judicial Magistrate,
Ernakulam to the extent it applies to the petitioners in
Crl.M.C.Nos.2106 & 2932 of 2011 stand quashed. The
Crl.M.Cs are allowed to the above extent.
Crl.M.C.Nos.1374 & 1391 of 2012
50. The petitioners in the captioned Criminal
Miscellaneous Cases are one and the same. The item of
food article involved in these cases is also the same viz.,
`Tomato Sauce'. In S.T.No.2267 of 2009 on the files of the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
Court of Judicial First Class Magistrate-I, Kannur they are
respectively accused Nos.2 and 3 and same is their status in
C.C.No.891 of 2009 which is pending on the files of the
Court of Judicial First Class Magistrate, Malappuram. In
the former case the petitioners seek quashment of the
proceedings in S.T.No.2267 of 2009 and in the latter case
the petitioners seek quashment of all the proceedings in
C.C.No.891 of 2009, taking up the contention that in the
light of the dictum laid down by the Hon'ble Apex Court in
Pepsico India Holdings (P) Ltd. v. Food Inspector
(2010 (4) KLT 706 (SC)) taking of cognizance on the
complaints which culminated in the above proceedings are
absolutely unsustainable and as such the complaints as also
all further proceedings based thereon are liable to be
quashed. Evidently, in Crl.M.C.No.1374 of 2012 Annexure-
A2 complaint was filed based on Annexure-A1 report of the
Public Analyst. It was on the said complaint that
cognizance was taken and the case is pending as
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
S.T.No.2267 of 2009 before the Court of Judicial First Class
Magistrate-I, Kannur. In Crl.M.C.No.1391 of 2012
Annexure-A2 complaint was filed based on Annexure-A1
report of the Public Analyst and it was on the said complaint
that cognizance was taken and the case is pending as
C.C.No.891 of 2009 before the Court of Judicial First Class
Magistrate, Malappuram.
51. A perusal of Annexure-A1 in both the cases would
reveal that the Public Analyst on analysis of the sample
which was collected in the former case on 24.2.2009 and in
the latter case on 15.9.2009 found that the acidity as
`Acetic acid' is less than the prescribed standard as per
Item No.A.16.27 of Appendix B of Prevention of Food
Adulteration Rules, 1955. In the former case, as against the
prescribed standard which is not less than 1.0 percent the
result shows that only 0.77 percent was present. In the
latter case as against the aforesaid prescribed standard in
the sample acidity as acetic acid is only 0.76%. It is on the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
basis of such results that the samples collected were found
as adulterated owing to the fact that they do not conform to
the standard prescribed for Tomato Sauce. From the facts
expatiated above it is evident that in both the cases a test
was conducted using the samples collected by the Public
Analyst and it is the result of such analysis culminated in
Annexure-A1 reports. In the light of the indisputable
position it is evident that the tests which culminated in
those reports were not conducted from a laboratory defined
under Section 23(1-A)(ee) of the Prevention of Food
Adulteration Act, 1954. In the light of the decision of the
Hon'ble Apex Court in Pepsico's case (supra) in order to be
reliable and to form a foundation for such a prosecution
after 1.4.1976 viz., the date of incorporation of the
provisions under Section 23(1-A)(ee) the report of the Public
Analyst must be one based on an analysis conducted from a
laboratory defined under Section 23(1-A)(ee) of the
Prevention of Food Adulteration Act, 1954. Evidently,
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
Annexure-A1 report cannot be said to be made based on
analysis conducted in such a laboratory as the indisputable
position obtained is that till the repealing of Prevention of
Food Adulteration Act, 1954 no such laboratory was defined
under Section 23(1-A)(ee) of the Prevention of Food
Adulteration Act, 1954. In the said circumstances, in the
light of the decision in Pepsico's case (supra) cognizance
could not have been taken on the complaint which was filed
based on Annexure-A1 reports. In the said circumstances,
the captioned Crl.M.Cs are liable to be allowed.
52. In the result, the Crl.M.Cs are allowed. The
complaints and all the proceedings in C.C.No.891 of 2009
on the files of the Court of Judicial First Class Magistrate,
Malappuram and in S.T.No. 2267 of 2009 on the files of the
Court of Judicial First Class Magistrate-I, Kannur, in so far
as they relate to the petitioners stand quashed.
Crl.M.C.No.2755 of 2013
53. Accused Nos.5 and 6 in S.T.No.3613 of 2011 on the
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
files of the Court of Judicial First Class Magistrate-I,
Kottayam are the petitioners. They filed the captioned
miscellaneous case seeking quashment of Annexure-I
complaint and Annexure-IV report and all proceedings in
S.T.No.3613 of 2011 on the files of the Court of Judicial
First Class Magistrate-I, Kottayam. Evidently, cognizance
was taken on Annexure-I complaint. Annexure-I complaint
was filed based on Annexure-IV report of the Public Analyst.
The item of food involved in this case is `Margarine'. The
standard thereof is prescribed under item No.A.12 of
Appendix B of Prevention of Food Adulteration Rules, 1955.
In Annexure-IV report of the Public Analyst it was found
that the free fatty acid of extracted fat (as oleic acid) as
against the standard prescribed thereof viz., not more than
0.25%, the sample analysed contained only 0.1% that is,
within the limit. It was found to be adulterated on the
ground that though the prescribed standard as per item
No.A.12 of of Appendix B of the Prevention of Food
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
Adulteration Rules, 1955 in respect of fat is "not less than
80.0% m/m" the sample contained only 77.6%. True that,
the said report was superseded by Annexure-V report of the
Central Food Laboratory. But, at the same time, it is
evident that the basis for the prosecution is the report of
Public Analyst viz., Annexure-IV and complaint was filed
based on the same. As noticed hereinbefore, it is evident
from Annexure-IV that for arriving at the results noted
thereunder an analysis was conducted by the Public Analyst
from a laboratory. In the light of the decision in Pepsico
India Holdings (P) Ltd. v. Food Inspector (2010 (4)
KLT 706 (SC)) we have answered the reference to the
effect that wherever an analysis by a Public Analyst from a
laboratory is to be conducted inevitably in order to be
reliable and to form a basis for a prosecution it must be one
conducted from a laboratory defined under Section 23(1-A)
(ee) of the Prevention of Food Adulteration Act, 1954. Since
the indisputable position obtained is that no such
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
laboratories were defined till repealing of the Prevention of
Food Adulteration Act, 1954 Annexure-IV can only be a
report prepared after conducting an analysis from a
laboratory which was not defined in terms of the aforesaid
provision. In the said circumstances, in the light of the
decision in Pepsico's case (supra) and the aforesaid finding
it cannot be a reliable one and needless to say, in such
circumstances, on Annexure-I complaint filed relying on
such a report viz., Annexure-IV cognizance could not have
been taken, in the matter. When that be so, we have no
hesitation to hold that the complaint and all the proceedings
in S.T.No.3613 of 2011 pending against the petitioners who
are accused Nos.5 and 6 therein, before the Court of
Judicial First Class Magistrate-I, Kottayam are liable to be
interfered with.
54. Accordingly, this Crl.M.C. is allowed. The
complaint and all further proceedings in S.T.No.3613 of
2011 pending before the Court of Judicial First Class
Criminal R.P.Nos.1814 of 2002, 1518, 1665, 1981, 2173, 2511 of 2003, 317 & 439 of 2004, 2594 of 2005
and Crl.M.C.Nos. 417, 2105, 2106, 2932 and 3128 of 2011, 1374 and 1391 of 2012, 2755 of 2013
94
Magistrate-I, Kottayam to the extent it applies to the
petitioners who are accused Nos.5 and 6 stand quashed.
Sd/-
C.T. RAVIKUMAR
JUDGE
Sd/-
K.P. JYOTHINDRANATH
JUDGE
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