FOOD INSPECTOR v. BHASKARAN — 1980 DIGILAW 255 (KER)

Judgment :- 1. This is an appeal against an order of acquittal passed by the Addl. Judicial Magistrate of I Class, Trivandrum, in a case coming under the Prevention of Food Adulteration Act, hereinafter called the Act 2. On a complaint filed by the Food Inspector, Trivandrum Circle, alleging that the accused sold 750 grams of toor dhal to him at about 12 noon on January 1, 1978 which, on analysis, was found to be adulterated, the accused was tried for offences punishable under S.16 (1) (a) (i) read with S.7 (1) of the Act. 3. In support of the prosecution case, pw. 1, the Food Inspector, pw. 2, the Regional Food Inspector, pw. 3, one of the attestors to the mahazar and pw. 4, the Executive Officer, Kazhakoottom Panchayat, were examined and documents including Ext P4 mahazar and Ext. P6 report of the Public Analyst, were marked. 4. When examined under S.313 Cr. P. C on the prosecution evidence, the accused admitted sale of 750 grams of toor dhal to the Food Inspector on the alleged date, the receipt of the price, the sampling and the entire action of the. Food Inspector and also receipt of the copy of the report of the Public Analyst along with intimation; but, in denying guilt, he stated that the article of food involved in the case was purchased by him on January 2, 1978 from the shop of one Potti Velu at Chalai as per a bill; that if was from that quantity the Food Inspector took the sample and that he also showed the bill to the Food Inspector. 5. The merchant from whom the accused claims to have purchased toor dhal was examined as Dw. 1 and Ext. Dlcash bill and Ext. D2 said to be the counter-foil of the same were marked. 6. The learned Magistrate acquitted the accused on the only ground that there is no evidence to show that the article of food purchased by the Food Inspector was unfit for human consumption. 7. Assailing this order of acquittal, the learned Public Prosecutor submitted that the trial court has not properly understood the scope of S.2 (ia) (f) of the Act; that the law on the point is now well settled by an authoritative pronouncement of the Supreme Court in a recent case, Delhi Municipality v. Tek Chand (AIR. 7. Assailing this order of acquittal, the learned Public Prosecutor submitted that the trial court has not properly understood the scope of S.2 (ia) (f) of the Act; that the law on the point is now well settled by an authoritative pronouncement of the Supreme Court in a recent case, Delhi Municipality v. Tek Chand (AIR. 1980 S. C. 360), that in a case coming under S.2 (ia) (f) of the Act the prosecution is not always bound to prove that the article of food sold by the accused was unfit for human consumption but it is enough if they prove that the article consisted wholly or in part of any filthy, putrid, rotten, decomposed or deceased animal or vegetable substance or was insect infested. 8. Following the decision of the Supreme Court, this Court also has held so in Food Inspector v. Divakaran (1980 KLT. 369). In the recent case the Supreme Court distinguishing the earlier decision in Municipal Corporation v. Kacheroo Mal (1976 (2) S. C. R.1). a different construction was put on the various clauses under S.2 (ia) (f) of the Act According to Their Lordships, the last clause "or is otherwise unfit for human consumption" is residuary provision which would apply to a case not covered by or squarely falling within the clauses preceding it and the words "or is otherwise unfit for human consumption" are disjunctive of the rest of the words preceding them. The acquittal of the accused on the ground mentioned cannot therefore be sustained. 9. But the learned advocate appearing for the accused-respondent submitted that there are valid grounds on which the acquittal can be upheld. The counsel contended that R.7 (3) and R.19 of the Rules framed under the Act are mandatory in nature and they have been violated in this case and the accused is entitled to the benefit of the same. The counsel relying on a decision of the Madhya Pradesh High Court in Municipal Corporation, Gwalior v. Premchandra (ILR. The counsel contended that R.7 (3) and R.19 of the Rules framed under the Act are mandatory in nature and they have been violated in this case and the accused is entitled to the benefit of the same. The counsel relying on a decision of the Madhya Pradesh High Court in Municipal Corporation, Gwalior v. Premchandra (ILR. (1971) M. P 591) contended that R.19 is mandatory and that failure of the Food Inspector to add preservative to the sample has vitiated the result of the analysis Relying on Radhey Lal Gupta v. State (1979 F. A. J. 100), it was argued that there was delay caused in the analysis; that the insects in the sample might have multiplied and grown before the sample was analysed and therefore it cannot be said with certainty that the sample in question when purchased by the Food Inspector was really insect infested. Another argument advanced relying on a decision reported in Municipal Corporation of Delhi v. Paran Das Jain (1978 F. A. J. 115) is that the report of the Public Analyst does not disclose as to what was the extent of insect infestation and to that extent the report is defective and cannot be relied on Finally it was argued that the accused is entitled to the benefit of S.19 of the Act as the sample purchased by the Food Inspector from the accused was covered by a warranty issued by Dw. 1. 10. I shall now deal with these points one by one As regards R.7(3), the argument is that there is no evidence on the side of the prosecution to show that the Public Analyst delivered his report to the local (Health) Authority within 45 days from the date of receipt of the sample for analysis. Under sub-section (5) of S.13 of the Act, a report signed by a by a Public Analyst, unless it has been superseded under sub-section (3), may be used as evidence of the facts stated therein in any proceeding under the Act. In this case the report of the Public Analyst has not been superseded by a certificate issued by the Director of Central Food Laboratory. The report of the Public Analyst is per se evidence. In this case the report of the Public Analyst has not been superseded by a certificate issued by the Director of Central Food Laboratory. The report of the Public Analyst is per se evidence. The report which is in the prescribed form and which contains the relevant and necessary data, shows that the sample was received on January 6, 1978 and the report was signed on January 18, 1978. There is nothing in the report showing the actual date of analysis but it must have taken place between 6th and 18th of January 1978. The analysis of the sample is an official duty performed by the Public Analyst and the presumption is that all official acts have been done properly and regularly. The prosecution is not bound to adduce evidence unless there is challenge from the accused that the report of the result of analysis was not delivered to the Local (Health) Authority within 43 days as prescribed under R.7(3). The accused had no case before the trial court that R.7(3) has been violated and thereby he has been in any way prejudiced. The Local (Health) Authority was examined as pw. 2 and no question is seen put to him in this respect. Exts. P7 and P8 were proved by pw. 2 and his evidence in this regard stands unchallenged as there was no cross-examination. 11. The other argument that R.19 is mandatory and the failure of the Food Inspector to add preservative to the sample has vitiated the result of the analysis has no merit. R.19 is not mandatory as is clear from the express words therein. It is only directory and it has also been so held by a Division Bench of this Court in Food Inspector v. Ksheeravyavasaya Co-opertive Society (1977 KLT. 370). What R.19 states is that any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis Under R.20 preservative in respect of milk, cream, etc has been prescribed. By virtue of R.19, the Food Inspector can only add a preservative, which may be prescribed from time to time, to the sample. Admittedly no preservative has been prescribed for toor dhal or foodgrains. By virtue of R.19, the Food Inspector can only add a preservative, which may be prescribed from time to time, to the sample. Admittedly no preservative has been prescribed for toor dhal or foodgrains. Therefore, there has not been any violation of R.19 in the case and the Food Inspector was not bound to add any preservative to the sample purchased by him. With due respect I am unable to agree with the reasoning given in Municipal Corporation Gwalior v. Premchandra (I. L. R. (1971) M. P. 591). 12. Still another argument of the counsel for the accused was that on account of the delay in the analysis, the possibility of the insects having multiplied and grown during the time taken for analysis cannot be ruled out and with certainty it cannot be said that at the time when the Food Inspector purchased the sample it was really insect infested and that the report of the Public Analyst is bad as it does not show the extent of damage caused to the article of food. This argument, as stated earlier, is based on the decisions reported in Rahey Lal Gupta's case (1979 F. A. J 100) and Municipal Corporation of Delhi's case (1978 F. A. J. 115). 13. As borne out from the records in the present case, the analysis of the article of food purchased from the accused must have been done on any of the days between January 6 and 18. Even if it is assumed that the analysis was done only on the date on which the report was signed by the Public Analyst, there was only a delay of 18 days, whereas under R.7(3), the Public Analyst has been given a period of 45 days to send the report of the result of his analysis to the Local (Health) Authority from the date of receipt of the sample for analysis. In other words, the restriction or limitation in this regard is that the analyst should complete the analysis within 45 days from the date of receipt of the sample. This sub-rule was introduced by an amendment by Notification No. GSR. 4 (E) dated 4-1-1977. Formerly there was no such period prescribed. In other words, the restriction or limitation in this regard is that the analyst should complete the analysis within 45 days from the date of receipt of the sample. This sub-rule was introduced by an amendment by Notification No. GSR. 4 (E) dated 4-1-1977. Formerly there was no such period prescribed. In Radhey Lal Gupta's case (1979 F. A. J. 100), the sample of article of food was purchased by the Food Inspector on September 15, 1976, long before sub rule (3) of R.7 was amended prescribing a period of 45 days. In that case, the Public Analyst himself was examined as a witness and it was on the basis of the evidence of the Public Analyst that the learned Judge came to the conclusion that the probability of growth of insects during the period cannot be ruled out. There the Public Analyst has given evidence that generally insects grow within a period of 15 days to one month and the growth can be earlier, if the sample is taken in cloth or paper container, because such containers are liable to absorb much moisture. The Public Analyst further stated that if the samples are taken in tight fit glass containers there still can be a natural growth of insects therein but the period of growth would be roughly between one to two months, depending upon the season. It was during rainy season that the sample in that case was taken and the period between taking of the sample and the second analysis was three weeks. It was in these circumstances that the learned Judge held that the probability of insects having grown within a period of three weeks during the month of September, which is admittedly a rainy season, cannot be ruled out. In view of the evidence in the case under consideration and the provisions in sub-rule (3) of R.7, with great respect, I am unable to agree with the reasoning in this case also. The standard for food-grains has been prescribed by the legislature and R.7 (3) has also been subsequently amended fixing a period for the Public Analyst to send the report of result of his analysis. The legislature must have taken all these aspects into consideration while prescribing the standard for the foodgrains and fixing a period of 45 days under R.7 (3). On the facts also, this decision has no application to the instant case. The legislature must have taken all these aspects into consideration while prescribing the standard for the foodgrains and fixing a period of 45 days under R.7 (3). On the facts also, this decision has no application to the instant case. The evidence of pw 1 in the case on hand shows that the sample was divided into three equal parts and filled up in three clean and dry bottles in accordance with the provisions of law. There is no reason to disbelieve his evidence on the point. The argument that the report of the Public Analyst is vitiated, as it does not disclose the extent of damages or insect infection in the sample is equally devoid of any merit Ext P6 report has clearly shown the extent of insect damaged grains as 13 per cent (by count) and the analyst also noticed uric acid 20.0 gms. per 100gms. All these apart, it may be noted that in Radhey Lal Gupta's case (1979 F. A. J 100) and Municipal Corporation of Delhi's case (1978 FAJ. 115), the charge against the accused was that he sold an article of food which was adulterated; within the meaning of S.2(i)(f) of the Act and the learned Judge in the first case relying on Kacheroo Mal's case (1976 (2) S. C. R.1) and the learned Judges in the second case following the decision in Dhan Raj v. Municipal Corporation of Delhi (Crl. Rise. (Main) No. 33 of 1969, decided on 3-4-1972) held that in a case coming under S.2(i)(f). the prosecution has also to prove that the article of food was unfit for human consumption. It was on the ground that it cannot be said that on account of insect infestation the same was unfit for human consumption that the appeal was dismissed in the Municipal Coporation of Delhi's case (1978 F A. J. 115). These decisions on this point are no longer good law in view of "the recent pronouncement of the Supreme Court in Delhi Municipality v Tek Chind (AIR. 1980) As regards the other points, I am in respectful disagreement 14. Now coming to the last point, namely, that the accused is entitled to the benefit of S 19(2)(a)(ii) of the Act, the counsel relied on the evidence of Dw. 1 and Ex. D1 and D2. It has come out in the evidence of pw. 1980) As regards the other points, I am in respectful disagreement 14. Now coming to the last point, namely, that the accused is entitled to the benefit of S 19(2)(a)(ii) of the Act, the counsel relied on the evidence of Dw. 1 and Ex. D1 and D2. It has come out in the evidence of pw. 1 that no warranty or bill was shown to him by the accused. There is correction in Ex D1 said to be the warranty issued to the accused by Dw. 1. The date 2-12-78 originally shown in Ex. D1 is seen corrected by striking of '2' indicating that the purchase was in the month of January. Ex D2 was marked through Dw. 1 who claimed the same to be the counterfoil of Ext. D1. But both are entirely different and distinct containing different serial numbers and relating to different articles of food purchased. It is true that Dw. 1 has given evidence that toor dhal was purchased by the accused from his shop as per Ex. D1 bill. But there is no evidence that it was from the quantity purchased from the shop of Dw. 1 that the accused sold the sample in question to the Food Inspector. It is not enough that the article purchased by the accused was covered by a warranty, but it must also be proved that it was sold to the Food Inspector in the same state as he purchased it from the warrantor. This evidence is lacking in this case. Therefore on this ground the acquittal in this case cannot be upheld. In the result this appeal is allowed, the order of acquittal is set aside and the case is sent back to the trial court for disposal afresh from the defence stage in accordance with law and in the light of this judgment. The accused will beat liberty to raise further contentions, if any, in support of his defence.