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1980 DIGILAW 120 (RAJ)

Arun Kumar v. Food Inspector, Municipal Council

1980-03-05

U.N.BHACHAWAT

body1980
JUDGMENT 1. - The accused runs a hotel at Dhamtari. According to the prosecution, he is the proprietor of this hotel whereas according to the accused, the hotel belongs to his paternal aunt where he sits and manages it in her absence. The two Courts below have found him to be the proprietor. 2. On 28-8-1976, the Food Inspector of the Dhamtari Municipal Council obtained a sample of Chillies on payment of the requisite price and in the manner provided under the Act, but after having obtained the sample dealt with it not according to the procedure provided in Section 11 of the Act as it stood after the amendment to this Section by the Amendment Act of 1976; despite the fact that the amendment had come into force on 1-4-1976, i.e., about more than four months prior to the date of incident. This fact is beyond the pale of dispute. 3. In the instant case, while acting under the repealed procedure one part of the sample that was given to the accused was, on the application of the accused, got analysed from the Director of Central Food Laboratory and vide his report, Ex. P.8, the article was found to be adulterated. 4. It cannot be gainsaid that the Act has prescribed a particular procedure. When there is a statutory procedure, the Court cannot act in utter disregard of the procedure. Section 11 provides that out of the three parts of the sample, the Food Inspector has to keep one with him and deliver the two to Local (Health) Authority. Section 13 prescribes the procedure as to when the Public Analyst has to send his report and as to how the Court has to proceed after the institution of the complaint before it in respect of getting the sample analysed from the Director, Central Food Laboratory. 5. Sub-section 2 lays down that in case the report of the Public Analyst shows that the article of food is adulterated, the Local (Health) Authority shall institute a prosecution against the person from whom the sample of the article is taken and the person, if any, whose name and address and particulars have been disclosed under section 14(A). 6. 5. Sub-section 2 lays down that in case the report of the Public Analyst shows that the article of food is adulterated, the Local (Health) Authority shall institute a prosecution against the person from whom the sample of the article is taken and the person, if any, whose name and address and particulars have been disclosed under section 14(A). 6. The local (Health) Authority shall thereafter send a copy of the report to the person from whom the sample was taken and the person, if any, whose name and address and particulars have been disclosed under section 14 (A). 7. The persons named above on receipt of the copy of the report may make an application to the Court that the sample of the articles of food kept with the Local (Health) Authority analysed by the Central Food Laboratory. 8. Sub-section 2 (A) provided that on an application made to the court for the examination of the sample by the Director Central Food Laboratory, the Court shall require the Local (Health) Authority to forward the part or parts of the sample with it to the Court within five days. 9. Sub-section 2 (B) provides that the court on receipt of the part or parts of the sample from the Local (Health) Authority and after ascertaining that the mark and seal and fastening are intact send the part of the sample under his own seal to the Director of the Central Food Laboratory who shall send his certificate to the court within one month from the date of the receipt of the part of the sample. 10. Sub-section 2(D) provides that until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue the proceedings pending before it. 11. Sub-section 2(E) lays down that in case the Local (Health) Authority is of opinion that the report of the Public Analyst is erroneous it shall forward one of the parts of the sample kept by him 10 any other public analyst for analysis for his opinion. 12. Sub-section 3 lays down that the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst. 13. 12. Sub-section 3 lays down that the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst. 13. Sub-section 4 provides that when a certificate received from the Director of the Central Food Laboratory is produced in any proceeding is under this Act or under Section 272 to 276 of the Indian Penal Code, it would not be necessary to produce any part of the sample of the food taken for analysis. 14. Sub-section 5 provides that the report signed by the Public Analyst may be used as evidence of the facts stated therein until superseded by the certificate signed by the Director Central Food Laboratory. The proviso of sub-section 5 makes the certificate signed by the Director of Central Food Laboratory final and conclusive evidence on the facts stated therein." 15. It is an admitted position that neither the Court acted nor it could act in the instant case in accordance with the provisions of Section 13 (2) as no sample was given by the food inspector to the Local (Health) Authority. 16. The terminology employed in Section 13 is peremptory and there is no escape from it. When there is a statutory procedure, it has to be followed. It is more so as it provides the safeguard to the accused facing prosecution under Section 16 of the Act under which he is liable to be visited with a severe penalty. The food inspector and the Court have acted under the repealed section which they could not. This view is in line with the view taken in Criminal Revision No. 4 of 1978 (Rampratap v. The State of M.P. and another) decided on 10-2-1980. 17. Section 13 (2) (B) of the Act provides that it is the parts of the sample received from the Local (Health) Authority which alone could be sent to the Director Central Food Laboratory and the report on the analysis of such sample that is the certificate of the Director Central Food Laboratory would be admissible under Section 13 (3) of the Act. Where a statute requires a particular act to be done in a particular manner it has to be done in that manner particularly when the act has penal consequences [See : Haru Ram v. Smt. Prusanni AIR 1959 S.C. 93 . ] Thus the report (Ex. Where a statute requires a particular act to be done in a particular manner it has to be done in that manner particularly when the act has penal consequences [See : Haru Ram v. Smt. Prusanni AIR 1959 S.C. 93 . ] Thus the report (Ex. P. 8) of Director of Central Food Laboratory obtained in a manner contrary to the manner prescribed in the Act is of no consequence. 18. In the light of the foregoing discussion, I am of the view that the food inspector having acted in violation of the provisions of Section 11, the conviction of the accused stand vitiated. The question of prejudice does not arise when the action is in utter disregard of the statutory procedure. It is an illegality not an irregularity which can be cured. 19. In the result, the revision has to be allowed. It is accordingly allowed, the impugned judgments are set aside, the conviction and sentence of the accused under section 7/16 of the Prevention of Food Adulteration Act are set aside and he is acquitted of the charges. The bail and surety bonds of the accused stand discharged. The amount of fine, if paid, be refunded to the accused.Revision allowed. *******