The Karnataka High Court has set aside the conviction handed down under the Prevention of Food Adulteration Act by the trial court for a charge which it did not frame against the accused, and remanded the matter back to be considered afresh.
A single judge bench of Justice H P Sandesh while allowing the petition filed by one M. Ajithkumar said "There is a glaring error on the part of the Trial Court since charge has been framed for Section 7(1) of the Act and conviction and sentence is passed for the violation of Section 7(2) of the Act. The Appellate Court also failed to take note of this aspect into consideration and concentrated mainly on the minimum sentence."
It added, "Hence, the very judgment of the Trial Court as well as the First Appellate Court requires to be set aside on the ground that the charge has been framed for violation of Section 7(1) of the Act and conviction and sentence has been passed for violation of Section 7(2) of the Act."
The Food Inspector had filed a complaint against the accused persons for allegedly selling adulterated cooking oil. It was alleged that the accused violated Section 7(2) of the Prevention of Food Adulteration Act and thereby committed the offence punishable under Section 16(a)(i) of the said Act.
The Trial Court convicted both the accused under Section 7(2) of the Act for misbranding soybean oil as sunflower oil. The same was upheld by the Appellate Court.
Accused no. 2 filed this revision petition.
At the outset, the High Court noted that the trial Judge had framed the charge for the offence under Section 7 of the Act, particularly, Section 7(1) in respect of adulteration of food, whereas the case of prosecution was of misbranding, punishable under Section 7(2).
"Though the allegation is in respect of Section 7(2) of the Act, the Trial Court framed the charge for the offence under Section 7(1) of the Act. Hence, very framing of the charge itself is erroneous."
Further the court said, "It has to be noted that the trial Judge, even while passing the judgment, invoked Section 7(2) of the Act punishable under Section 16(a)(i) of the Act and not altered the Section from 7(1) to 7(2) of the Act. It is also rightly pointed by the learned counsel for the revision petitioner that no notice was given to invoke Section 7(2) of the Act and though the same is noticed by the Trial Court, the charge has been framed for violation of Section 7(1) of the Act and punishment was provided for the violation of Section 7(2) of the Act."
Accordingly, the High Court set aside the conviction and sentence order passed by the court below. As regards to other contentions raised by the petitioner the bench said,
"When charge has not been properly framed and conviction and sentence is passed for in respect of violation under Section 7(2) of the Act, it is appropriate to set aside the judgments of both the Trial Court as well as the First Appellate Court by keeping open the other contentions of the learned counsel for the revision petitioner and remand the matter to the Trial Court for framing appropriate charges and consider the matter afresh."
Case Title: M.AJITHKUMAR v THE STATE BY FOOD INSPECTOR, KOPPA
Case No: CRIMINAL REVISION PETITION NO.1527/2016
Citation: 2022 LiveLaw (Kar) 234
Date of Order: 24TH DAY OF JUNE, 2022
Appearance: Advocate A. RAVISHANKAR for petitioner; HCGP MAHESH SHETTY for respondent