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1969 DIGILAW 293 (KER)

STATE OF KERALA v. C. CHACKO

1969-12-18

K.SADASIVAN

body1969
Judgment :- 1. This appeal is by the State against acquittal in a prosecution under the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954). On 22-9-1968 at about 9.30 A.M. the Food Inspector, Kottarakara found the accused taking two bottles of milk for sale to the teashop of pw. 2 near the Chittumala Junction. From him the Food Inspector took 660 milli litres of milk after giving him the prescribed form VI notice. The price was also paid. On analysis by the Public Analyst the milk was found to be adulterated, in that it contained 40 percent of added water. The learned Magistrate has found that the milk was purchased by the Food Inspector and that it was properly sampled and one such sample was handed over to the accused. Pw2 is the teashop man to whose shop the accused is stated to have taken the milk for sale. But he did not support the prosecution case that the milk was taken to his shop for sale. He denied the allegation that the accused used to sell milk to him. All that he has stated is that the Food Inspector cam to his shop along with the accused and asked him about the prevalent price of milk. Pw3 is an attestor to the mahazar but he resiled in the witness-box and stated that he did not see the Food Inspector taking the sample and also the accused receiving the price. But inspite of this witness turning hostile the learned Magistrate has accepted the mahazar and the other documents and entered the finding that the case of the prosecution that the sample was taken from the milk carried by the accused is true. I see no difficulty in accepting this finding because the accused himself has admitted that the milk was seized from him. He has signed the form VI notice and also signed Ext. P4 the voucher for receipt of the price. The mahazar has also been signed by him. But the case put forward in this Court is that the price was not in fact, received by him but was left on the bench in the teashop by the Food Inspector. The learned counsel would also argue that even if the price was received by the accused, the transaction will not amount to sale since it was a compulsory purchase. The learned counsel would also argue that even if the price was received by the accused, the transaction will not amount to sale since it was a compulsory purchase. For this position the learned counsel relied on a single Bench decision of the Madras High Court reported in In re Rathamani (AIR. 1965 Madras 146) where Justice Anantanarayanan relying on a single Bench ruling of this Court in Food Inspector v. Parameswaran (1962-I-Crl.L.J.152) (Kerala) observed:- "a sale is a voluntary transaction and that a seizure or compulsory acquisition in the exercise of a statutory power by such a person as a Food Inspector, clothed with the authority to take a sample would not be a sale in the ordinary connotation." But this view has been dissented from by the Supreme Court in Mangaldas v. Maharashtra State (AIR. 1966 S.C.128) where the learned judges have held: "The Act gives a special definition of 'sale' in S.2 (xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as sale even if the transaction contains an element of compulsion. 2. A contract comes into existence by the acceptance of a proposal made by one person to another by that other person. The latter is not bound to accept the proposal. It may not, however, necessarily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract." The argument that compulsory purchase by the Food Inspector for analysis will not amount to a voluntary transaction of sale is, therefore, no longer available. 3. The acquittal can, however, be supported on another ground namely that by the conduct of the prosecution the right conferred on the accused by S.13(2) of the Act to have the sample given to him analysed by the Director of the Central Food Laboratory, was lost. In the present case, the sample was taken on 22-9-1968. The report of the analyst is seen dated 17-10-1968. The charge, however, was filed only on 23-1-1969. The first hearing of the case was on 3-2-1969. The accused can avail himself of the right of sending the sample to the Central Food Laboratory only on the date of the first hearing of the case. The report of the analyst is seen dated 17-10-1968. The charge, however, was filed only on 23-1-1969. The first hearing of the case was on 3-2-1969. The accused can avail himself of the right of sending the sample to the Central Food Laboratory only on the date of the first hearing of the case. By that time more than four months had elapsed and no purpose would have been served by sending the sample for analysis to the Central Food Laboratory. On the right conferred on the accused under S.13 (2) the Supreme Court would observe: "When a valuable right is conferred by S.13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conducive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate's to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, e.g. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. The principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial of the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible." Municipal Corporation of Delhi v. Ghisa Ram-AIR. 1967 S.C. 970). The Orissa High Court in Puri Municipality v. Bana Das (AIR. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible." Municipal Corporation of Delhi v. Ghisa Ram-AIR. 1967 S.C. 970). The Orissa High Court in Puri Municipality v. Bana Das (AIR. 1967 Orissa 206) would observe: "Even though requisite preservative is added to the milk where there is unusual delay in analysing the sample it is the duty of the prosecution to examine the Analyst or to lead some evidence to prove that on the date of analysis the constitution of the milk did not undergo any deterioration so as to affect the result of the examination. In absence of such evidence by the prosecution it is bound to affect the weight that is ordinarily to be given to the report of a Public Analyst." In Municipal Corporation of Delhi v. Ghisa Ram (AIR. 1967 S.C. 970) the following observation occurs:- "The report of the Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable the respondent to exercise his right under S.13 (2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962, and no explanation is forthcoming why the complaint in Court was filed about seven months after the report of the Public Analyst had been issued by him. This is, therefore, clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. In such a case, we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecution." The rulings of the various High Courts and the Supreme Court are to the effect that when the requisite preservative is added, the milk would remain intact for a period of four months at the most. If on the other hand, the milk is pasteurised or kept is refrigeration it might remain without deterioration or decomposition for some more time. If on the other hand, the milk is pasteurised or kept is refrigeration it might remain without deterioration or decomposition for some more time. In the case on hand, no purpose would have been served, if the sample had been sent for further analysis by the Central Food Laboratory. Learned counsel for the State contended that without sending the sample to the Central Food Laboratory for analysis and getting a report to the effect that the sample has been decomposed, the argument would not be available to the accused that by the delay in instituting the prosecution his right under S.13 (2) has been lost. I fail to see force in this contention. The normal rule being that Formalin can preserve the milk for a period of four months only, no purpose would be served in sending it to the Central Food Laboratory after such period. The accused is not expected to experiment it even after four months. This is the view taken by the Orissa High Court in a recent decision reported in Satrugana v. Puri Municipality (1968 Crl. L. J. 123). The Court observed: "As a result of delayed prosecution, the petitioner was deprived of the opportunity of sending or challenging the report of the Public Analyst by asking for further analysis by the Director of the Central Food Laboratory whose certificate would statutorily supersede the report of the Public Analyst. This contention is supported by AIR. 1967 S,C. 970-Municipal Corporation of Delhi v.Ghisa Ram. It is to be noted that the petitioner did not exercise his right in asking the court to send a part of the sample to the Director of the Central Food Laboratory. But as has been discussed in Para.7 of the Supreme Court decision, prosecution must be launched with promptitude so that the right given to the accused would not be illusory. Their Lordships observed thus: - 'In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst...' The case related to 'curd'. In Para.6 of the judgment, their Lordships referred to the period after which it gets decomposed. In Para.6 of the judgment, their Lordships referred to the period after which it gets decomposed. Taking the observations in Para.6 into consideration, I am clearly of opinion that the milk would get decomposed after a period of five and half months, even if the petitioner did not exercise his right under S 13(2), no useful purpose would have been served by doing it after such a long time. In the facts and circumstances of this case, the delay in prosecution affected the petitioner's right to challenge the report of the Public Analyst which could be superseded by the certificate of a greater expert. The petitioner is entitled to take advantage of the aforesaid defect of the prosecution. He is entitled to benefit of doubt." In that case the delay was over five months. But as already observed, by a period of four months the stuff would get decomposed. The prosecution therefore, cannot argue with advantage that had the sample been sent for further analysis the position would have been different. The failure of the accused in sending the sample after such a delay to the Central Food Laboratory cannot be canvassed to stifle his right under S.13 (2). The Andhra Pradesh High Court has also expressed itself on similar lines. In Public Prosecutor v. Venkateswara Rao (1969 Crl. L. J. 1278) a Single Bench of the Andhra Pradesh High Court observed:- "The delay has not been explained with the result that if the accused wanted to challenge the finding of the Public Analyst he would not have been in a position to do so due to lapse of time." On the above authorities, I would uphold the order of acquittal and dismiss this appeal.