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1978 DIGILAW 294 (KER)

KRISHNAN v. FOOD INSPECTOR

1978-11-06

K.BASKARAN

body1978
Judgment :- 1. The accused was prosecuted for offences under S.16 (1) (a) (i), 7(i) and 2(i) of the Prevention of Food Adulteration Act, 1954 and Rules framed thereunder. He has been convicted by the trial court and sentenced to suffer simple imprisonment for six months and to pay a fine of Rs. 1,000/, in default to suffer simple imprisonment for a further period of four months. The appeal filed by the petitioner has been dismissed by the Sessions Court. 2. The case against the accused was that on 23-2-1974 he had come to the tea-shop of pw. 2, Ibrayi, with an aluminium can containing buffalo milk for sale, which, on analysis was found to contain 31 per cent of added water and as such adulterated. 3. Ext. P1 is the Form VI notice. Ext. P2 is the mahazar for taking the sample by pw. 1, Food Inspector, and Ext. P3 is the Form VII Memorandum. Ext. P4 is the report of the Public Analyst, and Ext. P5 is the postal acknowledgement for the accused having received the copy of Ext. P4 report. Ext. P6 series are the copy of the relevant notifications. 4. On the side of the prosecution three witnesses were examined. pw.1 is the Food Inspector. He has deposed inter alia that the accused had brought milk for sale to the shop of pw. 2's brother. He had demanded for the sale of 660 ml. of buffalo milk brought by the accused by way of sample for the purpose of analysis, after having disclosed his identity, He took the sample, but the accused did not accept form VI notice: and though one part of the sample was given to the accused he did not acknowledge receipt thereof; so also he did not accept the price offered by pw.1 for the milk, by way of sample, for the purpose of analysis, taken by him. 5. The counsel for the revision petitioner submitted that the mandatory provision concerning the service of Form VI notice has not been complied in the present case. No doubt the accused did not accept form VI notice. As a matter of fact he denies the very fact of taking the sample from him. 5. The counsel for the revision petitioner submitted that the mandatory provision concerning the service of Form VI notice has not been complied in the present case. No doubt the accused did not accept form VI notice. As a matter of fact he denies the very fact of taking the sample from him. The question is whether the relevant provisions with respect to the service of Form VI notice could be deemed to have been complied with on a consideration of the evidence on record. The prosecution case that though Form VI notice was sought to be served on the accused, he refused to accept it is spoken to by pw. 1, the Food Inspector and pw. 3, Janardhanan who is a subordinate of pw. 1. The counsel for the petitioner submitted that in as much as the independent witness, pw. 2, the brother of the shop-keeper, did not support the prosecution case, it must be taken that the alleged refusal on the part of the petitioner to accept notice has not been established. In this connection it has to be noticed that pw. 2 who had signed Ext. P2 mahazar turned hostile, and had stated in court that he signed Ext. P2 mahazar without reading it. In these circumstances there is absolutely no reason why the evidence of pws.1 and 3 should not be believed with respect to the alleged refusal to receive form VI notice by the petitioner, I, therefore, reject the contention raised by the counsel for the petitioner with respect to this point. The contention with respect to the non-receipt of the payment for the sample taken also has to be rejected for the same reasons, 6. The counsel for the petitioner then submitted that under the Act, before its amendment by Act 34 of 1976, in terms of S.11(2), it was necessary for pw.1 to have sent intimation regarding the fact that the petitioner had declined to accept one of the parts of the sample. The counsel for the petitioner then submitted that under the Act, before its amendment by Act 34 of 1976, in terms of S.11(2), it was necessary for pw.1 to have sent intimation regarding the fact that the petitioner had declined to accept one of the parts of the sample. Sub-section (2) of S.11 as it stood at the relevant time read as follows: " If the person from whom the sample has been taken declines to accept one of the parts, the Food Inspector shall send intimation to the Public Analyst of such refusal and thereupon the Public Analyst receiving a sample for analysis shall divide it into two parts and shall seal or fasten up one of those parts and shall cause it, either upon receipt of the sample or when he delivers his report, to be delivered to the Food Inspector who shall retain it for production in case legal proceedings are taken." The evidence of pws.1 and 3 goes to show that as a matter of fact part of the sample was given to and received by the accused but he refused to give acknowledgment for receipt thereof. The question is whether this would amount to a case of non-compliance with the provisions contained in S.11 (2) of the Act as it stood during the relevant time. In terms of the section it is only where the person from whom the sample is taken declines to accept the part of the sample given to him that the requirement for intimating the Public Analyst regarding that fact would arise. In this case the evidence of pws. I and 3 is that the accused-petitioner accepted the part of the sample but refused to give acknowledgment for having received it. The argument of the counsel for the accused-petitioner that even assuming that the petitioner had accepted the part of the sample, there was still a legal obligation on the part of the Food Inspector (Pw.1) to intimate the Public Analyst that no acknowledgment was given by the petitioner does not appear to be correct. The argument of the counsel for the accused-petitioner that even assuming that the petitioner had accepted the part of the sample, there was still a legal obligation on the part of the Food Inspector (Pw.1) to intimate the Public Analyst that no acknowledgment was given by the petitioner does not appear to be correct. As had already been pointed out, in terms of the section, the need for intimating the Public Analyst that the accused-petitioner did not accept the part of the sample given to him would arise only where he declined to accept it; and it will not arise in cases where he accepted it, but refused to give acknowledgment for having received it. In this case the courts below have chosen to believe that as a matter of fact part of the sample was actually delivered to the accused, but he refused to give acknowledgment thereof After all, the relevance of acknowledgment is in relation to the proof of delivery of the part of the sample to the person from whom it was taken by the Food Inspector, and acceptance thereof by such person. In case where such delivery to and acceptance by such person, and refusal on the part of such person to give acknowledgment for the acceptance of the part of the sample delivered to him, are established there is no burden cast on the Food Inspector to intimate the Public Analyst that the accused had while accepting the part of the sample refused to give acknowledgment thereof. In these circumstances I hold that there is no violation of the mandatory provisions in S.11(2) in regard to the sending of the intimation that the person from whom the sample was taken declined to accept one of the parts of the sample delivered to him. I, therefore, reject this contention also. For the foregoing reasons the revision petition fails and is dismissed.