Nagar Swasthya Adhikari v. Radhey Shyam — 1981 DIGILAW 430 (ALL)

JUDGMENT J.M.L. Sinha, J. - This appeal has been filed by the Nagar Swasthya Adhikari, Allahabad assailing the judgment and order dated 26th October, 1977, passed by the Special Judicial Magistrate, Allahabad whereby he acquitted the opposite parties of the offence under section 7 read with section 16 of the Prevention of Food Adulteration Act. 2. The facts of the case, very briefly stated, are as follows "On 4th of December, 1973, at about 1.30 p.m. Sri Ramdev Misra (P.W.I) found Satish Kumar Agarwal, (P.W.2) selling Dalmot on a cycle. The Food Insoector collected sample out of that Dalmot on payment of Rs. 4.25 as the price thereof. One part of the sample was sent to the Public Analyst for examination who reported that the Cooking medium declared as oil contained a large proportion of groundnut oil. On receipt of this report, a complaint was filed for the prosecution of Satish Kumar Agarwal, opposite party No. 2 under section 7 read with section 16 of the Prevention of Food Adulteration Act. Opposite Party No. 1, Radhey Shiam, was also summoned to stand his trial because the packet contiaining the Dalmot contained a label showing that it was manufactured by him. 3. Both the respondents during their examination in the trial Court pleaded not guilty. Respondent No. 2 admitted that the sample was collected out of his possession, pleaded that it was not adulterated. Radhey Shyam, respondent No. 1 admitted that he was the manufacturer of the Dalmot. He however, added that it was cooked in groundnut oil and was not adulterated. 4. The trial Court acquitted the respondents on two grounds viz, (1) that according to Rule 22 of the Rules framed under the Act, a minimum of 500 grams of collected food articles should have been sent to Che Public Analyst, but instead of only 260 grams was sent and (ii) that copy of the report of the Public Analyst was not sent to the accused as required under Rule 9-J. Feeling aggrieved against the judgment and order of the trial Court, the Nagar Mahapalika has filed this appeal. 5. Learned Counsel for the appellant urged before me that for the first ground of acquittal the learned Magistrate relied on a decision of the Supreme Court which was later over-ruled. 5. Learned Counsel for the appellant urged before me that for the first ground of acquittal the learned Magistrate relied on a decision of the Supreme Court which was later over-ruled. He referred me in this connection to the decision of the Supreme Court in the case of Ram Dass Bhikaji Chaudhari v. Sadanand and others 1979(11) F.A.C. 215 it bears out on a perusal of this decision that the Supreme Court had initially held in the case of Rajaldas Gurunamal Pamnani v. State of Maharashtra, 1975 (I) F.A.C. 1 that compliance of Rule 22 was mandatory but later that view was reversed in the case of State of Kerala v. A. Mohammad 1978 (I) F.A.C. 145 which view was again followed in the afore-mentioned came of Ramdas Bhikaji Chaudhari v. Sadanand and others 215. In view of the above it must be accepted that the Court below committed an error in acquitting the respondent on the ground that Rule 22 had not been . complied with. 6. Coming to the second ground it has been held by a Division Bench of this Court that non-compliance of Rule 9-J simpliciter is not fatal to the prosecution and that before an accused can derive any benefit on that ground, it is necessary for him to show that prejudice has been caused to him as a result of the non-compliance thereof. Reference to the Division Bench decision can be found in the case of Sumer Chand and another v. State, 1980(I)F.A.C. 258 No finding has been recorded by the learned Magistrate as to how, as a result of the non-compliance of Rule 9-J the respondents were prejudiced in their defence. In the absence of such a finding the learned Magistrate could not acquit the respondents for non-compliance of Rule 9-J. 7. There is, however, yet another reason for which this appeal cannot succeed. The Rules framed under the Act do not prescribe any standard for Dalmot. According to the learned counsel for the appellant, Dalmot was adulterated within the meaning of Section 2(1) (a) of the Prevention of Food Adulteration Act. It can be extrated as follows : "In this Act unless the context otherwise (i) .............................. The Rules framed under the Act do not prescribe any standard for Dalmot. According to the learned counsel for the appellant, Dalmot was adulterated within the meaning of Section 2(1) (a) of the Prevention of Food Adulteration Act. It can be extrated as follows : "In this Act unless the context otherwise (i) .............................. (ii) "Adulterated" an article of food shall be deemed to be adulterated : (a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be." 8. Learned counsel for the appellant urged that, when the Food Inspector collected the sample of Dalmot it was represented by the respondent No. 2 (Satish Kumar Agarwal) that it was cooked in mustard oil and, since the Public Analysts report revealed that it was not cooked in mustard oil but was cooked in mustard oil mixed with ground nut oil, it was adulterated within the meaning of last of sub-clause (a) of clause (l)(a). 9. In view of the submissions raised by the learned counsel for the appellant it should be shown that the prosecution alleged and proved (i) that the respondent No. 2 at the time the sample was collected, represented to the Food Inspector that Dalmot had been cooked in mustard oil. and (ii) On analysis it was found that the cooking medium was a mixture of mustard oil and ground nut oil. 10. Ex. Ka-5 is the complaint filed for the prosecution of the respondent. Relevant part thereof states on 4-12-1973 at 1-30 p.m. the Food Inspector found Satish Kumar selling Namkin of mustard oil. The complaint does not in so many words state that at the time the sample was collected, the respondent No. 2 had represented that it was cooked in mustard oil. It is well settled that in criminal cases the accused should be given a clear notice of the against him. The complaint could not give notice to the respondents of the assumption that the respondent No. 2 had represented that Dalmot was prepared in mustard oil. 11. Further, as already stated, the prosecution has not only to allege but also to prove that the respondent No. 2 made a representation to the Food Inspector of the nature indicated above. The complaint could not give notice to the respondents of the assumption that the respondent No. 2 had represented that Dalmot was prepared in mustard oil. 11. Further, as already stated, the prosecution has not only to allege but also to prove that the respondent No. 2 made a representation to the Food Inspector of the nature indicated above. The prosecution has examined only two witnesses, namely, Ram Deo Misra Food Inspector (P. W. 1) and Naresh Chandra Food Clerk (P. W. 2) The latter did not claim to be present an the time sample collected and his evidence is of purely formal nature, Ram Deo Misra (P. W. 1) is the solitary witness deposed about samples collection. have gone through the statement of Ram Deo Misra. At no stage did Ram Deo Misra say that the respondent No. 2 had represented to him at the time of collection of sample that Dalmot had been prepared in mustard oil. Learned Counsel for the appellant referred me to the following sentence occurring in the cross examination of Ram Deo Misra : "Yah Sahi Hai Ke Label Ke Upar Koore Hamin Likha Tha Ki Mai Dalda Ka Dana Hai Ya Sarson Ke Tel Ka Hai. Mulzim Ke Kathan Par Jana Ki Namkin Kis Cheej Ka Bana Hai." 12. Learned counsel for the appellant laid some stress on the latter part of the above sentence. Which only states that he came to know on the accused telling about it. do not think that part of the said sentence can lead to the conclusion that the respondent No. 2 had made a representation that Dalmot had been prepared in mustard oil. 13. It is further worthy of notice that neither in the charge framed against the respondents nor in the questions put to him, it was at all specified that at the time of collection of sample the respondent No. 2 made a representation to the effect that the Dalmot was cooked in mustard oil. It thus transpires that at no stage of the trial the respondents were given notice of the fact that for the purposes of their prosecution the State relied on section 2(1) (a) of the Prevention of Food Adulteration Act. 14. Confronted with this position, learned counsel for the appellant referred me to the memo annexure Form VI (Ex. Ka-1). It thus transpires that at no stage of the trial the respondents were given notice of the fact that for the purposes of their prosecution the State relied on section 2(1) (a) of the Prevention of Food Adulteration Act. 14. Confronted with this position, learned counsel for the appellant referred me to the memo annexure Form VI (Ex. Ka-1). It was pointed out that in this document it was mentioned that Namkin was prepared in mustard oil and the respondent No. 2 had signed this note. According to the learned counsel for the appellant this document coupled with the signatures of the respondent No. 2, thereon, should be interpreted to be a representation made by respondent No. 2 to the effect that Namkin was prepared in mustard oil. have given my careful thought to the contention raised but regret my unability to accept the same. Form VI (Ex. Ka-1) in its entirety had to be prepared and signed by the Food Inspector himself. There is no column for the signatures oi vendor, in the proforma Form VI. It is true that a copy of this form was to be served on the vendor under the rules. The signatures on the top of the document can at best be in acknowledgment of the fact that the copy had been served on him. The mere fact that the respondent No. 2 signed this document in token oi having received a copy thereof can by no means be construed to be an admission that the respondent did make a representation at the time this sample was collected that the Namkin was prepared in mustard oil. Further, even if the prosecution wanted to utilise the signatures of the respondent No. 2 on the document Ex. Ka-1 for that purpose, the attention of the respondent should have been drawn specifically to the document and he should have been afforded an opportunity to explain. This was not done. 15. Learned Counsel than referred me to that part of the statement made by the respondent No. 2 in the trial Court wherein he stated that the sample collected was not adulterated, that it was prepared in ground-nut oil and that the Food Inspector was told about it. This was not done. 15. Learned Counsel than referred me to that part of the statement made by the respondent No. 2 in the trial Court wherein he stated that the sample collected was not adulterated, that it was prepared in ground-nut oil and that the Food Inspector was told about it. Learned Counsel urged that this statement made by the respondent No. 2 himself is sufficient to prove the fact that the respondent No. 2 made a representation to the Food Inspector of the nature alleged. am once again unable to agree. In the first instance only such circumstances can be put to an accused during his examination under Section 313 Cr. P.C. about which evidence has been led by the prosecution. No question can be put to an accused in respect of something about which the prosecution does not lead evidence, for it would amount to creation of evidence. That apart the prosecution case is that the accused had represented that Namkin was cooked in mustard oil. No part of his statement contains such an admission. 16. To sum up, even though the reasons given by the trial Court for acquitting the respondents are erroneous, the acquittal of the respondents recorded by the trial Court cannot be interfered wita because the appellant failed to prove that the sample collected from the respondent No. 2 was adulterated within the meaning of the Section 2(i)(a) of P.F-A Act. 17. This appeal accordingly fails and is hereby dismissed. The order passed by the trial Court for acquitting the respondents is hereby confirmed.