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1981 DIGILAW 163 (MAD)

State v. Venkateswaran

1981-04-10

S.SURYAMURTHY

body1981
Judgment : This is an appeal by the State against the judgment of the learned Sub-Divisional Judicial Magistrate, Erode acquitting the respondent on finding him not guilty of the offence punishable under section 16(1)(a)(i) read with section 7(i) and section 2(i)(a) and (1) of the Prevention of Food Adulteration Act, 1954 (to be hereafter referred to as the Act). 2. The Food Inspector of Gobichetti-palayam Municipality, who has been examined as P.W. 1, went to the hotel situate in Door No. 72, Police Station Road, Gobichettipalayam on 15th September, 1976 at about 11-30 a.m., and found the proprietor of the hotel, who is the accused in this case, and purchased from him 700 ml. of rose milk for Rs. 2.50 under a cash receipt Exhibit P-2 after serving Exhibit P-1, Form No. VI, notice, on him. Then he divided the rose milk into three equal parts and poured each part into a separate bottle, clean, dry and empty, and added 16 drops of formalin to each bottle. He then corked the bottles, tied them with twines and sealed them with seal No. 872. He gave one bottle to the accused under acknowledgment. He sent another bottle to the Public Analyst with Form No. VII, the office copy of which is Exhibit P-3. He retained M.O 1., the third bottle, and produced it into Court. After the receipt of Exhibit P-4, the report of the Public Analyst, certifying that the sample was deficient in solids not fat to the extent of 43% and it was deficient in fat to the extent of 64%, he furnished a copy of Exhibit P-4 to the accused and thereafter filed this complaint. These facts were spoken to by the Food Inspector, who examined himself as P.W. 1. 3. The accused pleaded not guilty and contended that the rose milk was prepared by using sugar; skimmed milk, water and colour. 4. The learned Magistrate acquitted the accused, because, in his opinion, no standard has been prescribed by the rules framed under the Prevention of Food Adulteration Act for rose milk. This view of the learned Magistrate is erroneous. 3. The accused pleaded not guilty and contended that the rose milk was prepared by using sugar; skimmed milk, water and colour. 4. The learned Magistrate acquitted the accused, because, in his opinion, no standard has been prescribed by the rules framed under the Prevention of Food Adulteration Act for rose milk. This view of the learned Magistrate is erroneous. Clause A. 11.01.05 in Appendix B to the Prevention of Food Adulteration Rules, 1955 (to be hereafter referred to as the Rules) refers to: “Flavoured Milk, by whatever name called, may contain nuts (whole, fragmented or ground) chocolate, coffee or any other edible, flavour, edible food colours, and cane sugar. Flavour milk shall be pasteurised, sterilised or boiled. The type of milk shall be mentioned on the label”. But, it is seen from Note (i) to clause A.11. 01.11 in Appendix B to the Rules that: “When milk is offered for sale without any indication of the class, the standards prescribed for buffalo milk shall apply.” The public Analyst has reported that the fat content of the sample was 1.0% nitrogen 0.27%, milk solid-not-fat 5.1%, sugar 17.4% and colouring matter Amarnath. He has further reported that when milk is offered for sale without any indication of the class, the standard prescribed for buffalow milk will apply, that as per clause A. 11.01.11 in Appendix B to the Prevention of Food Adulteration Rules, 1955 (as amended by the Prevention of Food Adulteration Amendment Rules, 1968) flavoured buffalo milk shall contain not less than 5.0% milk fat and 9.0% solids-not-fat, and that the sample in question was deficient in solids, not-fat to the extent of atleast 43% and deficient in fat to the extent of atleast 64%. Therefore the ground given by the learned Magistrate for acquitting the accused is incorrect. 5. However, the prosecution has to fail on a different point. Therefore the ground given by the learned Magistrate for acquitting the accused is incorrect. 5. However, the prosecution has to fail on a different point. Section 13 (2) of the Act lays down that, “On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as ma v be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.” By reason of the Amended Act, the Food Inspector has to send one sample to the Public Analyst and send the other two samples to the Local (Health) Authority. Section 11(1)(a)(i) of the Act lays down that when a Food Inspector takes a sample of food for analysis, he shall send one of the parts for analysis to the Public Analyst under intimation to the Local (Health) Authority, and section 11(1)(c)(ii) of the Act lays down that he shall send the remaining two parts to the Local (Health) Authority for the purposes of sub-section (2) of this section and sub-sections (2-A) and (2-E) of section 13. The Food Inspector has sent one bottle to the Public analyst, but he has not sent the other two bottles to the Local (Health) Authority. Instead, he has retained one bottle and handed over another bottle to the accused and has thereby violated the provisions of section 11(1)(c)(i) and (ii) of the Act. 6. The Food Inspector has sent one bottle to the Public analyst, but he has not sent the other two bottles to the Local (Health) Authority. Instead, he has retained one bottle and handed over another bottle to the accused and has thereby violated the provisions of section 11(1)(c)(i) and (ii) of the Act. 6. No notice has been issued by the Local (Health) Authority after the institution of the prosecution informing the accused that he may make an application to the Court within ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. In fact no notice at all has been given by the Local (Health) Authority, and no notice could have been given by the Local (Health) Authority, because P.W. 1 did not send the two bottles containing the sample to the Local (Health) Authority. P.W. 1 himself has not send any notice and report as required by sub-section (2) of section 13. He has merely forwarded a copy of the report, Exhibit P-4, to the accused, and, thereby P.W. 1 has violated the mandatory provisions of section 13(2) and section 11(1)(c)(i) and (ii) of the Act. 7. Hence, the prosecution of the accused is not main fairable, and therefore the appeal is dismissed.