BALAN v. FOOD INSPECTOR, ALWAYE MUNICIPALITY — 1984 DIGILAW 43 (KER)

Judgment :- 1. The revision petitioner herein, 2nd accused in S T. No. 23/ 79 on the file of the Judicial Magistrate of the First Class, Alwaye has been convicted under S.16(1)(a)(i) read with S.2(ia)(a), 7(i) and (v) of the Prevention of Food Adulteration Act, (for short, the Act), and sentenced to undergo Simple Imprisonment for six months and to pay fine of Rs. 1,000/- and in default to undergo Simple Imprisonment for two months. The conviction and sentence have been confirmed by the Sessions Court in appeal. The first accused has been acquitted. 2. pw. 1, Food Inspector, Alwaye Municipality laid the complaint against the two accused alleging that on 20-2-1978 at about 7.15 a.m. when the revision petitioner (2nd accused) was taking, for the purpose of sale cow's milk belonging to the first accused, to the Alwaye Ksheeravyavasaya Co-operative Society Limited, of which the first accused is a member, the Food Inspector approached the 2nd accused and after conforming to all the requirements of the Act and the relevant Rules, purchased 675 m.l. of milk from the revision petitioner for the purpose of analysis, sampled the same in accordance with law and duly sent one of the samples to the Public Analyst and the other two samples to the Local (Health) Authority as required by law and the Public Analyst reported that the sample did not conform to the standard prescribed for cow's milk and was therefore adulterated. On being appraised of the report, pw.1 laid the complaint and in due course copy of the report and intimation as contemplated under S.13(2) of the Act was forwarded to the revision petitioner. Both the accused appeared and pleaded not guilty. The 1st accused denied that he gave any milk to the revision petitioner, and the latter denied the prosecution case. The prosecution examined 4 witnesses and marked Exts. P1 to P15. The defence did not render any evidence. The trial court held that the revision petitioner sold a sample of adulterated cow's milk to the Food Inspector and therefore was guilty of the offence alleged. The trial court also held that the 1st accused could not be convicted because a copy of the report along with intimation under S.13(2) of the Act was not sent to him and there was no evidence to connect him with the sample of milk. 3. The trial court also held that the 1st accused could not be convicted because a copy of the report along with intimation under S.13(2) of the Act was not sent to him and there was no evidence to connect him with the sample of milk. 3. On the broad facts and circumstances of the prosecution case there could not be any serious dispute regarding the sampling. The Food Inspector, pw. 1, spoke to the occurrence, the details of the occurrence and various steps taken by him. His competency is not in dispute and is proved by his evidence and Ext. PI notification. Ext. P2 is the copy of Form VI notice served on the revision petitioner with the latter's acknowledgement on the reverse. Ext. P3 is the voucher issued by the revision petitioner for the price of milk paid by the Food Inspector. Ext. P4 is the mahazar prepared by the Food Inspector in the presence of two witnesses pws. 2 and 3 and also signed by the revision petitioner. Ext. P5 is the copy of Form VI memorandum prepared by pw. 1, also containing specimen impression of the seal used to seal the sample packet. Ext. P6 is the Railway receipt, under which one of the samples was sent to the Public Analyst. Ext. P7 is the letter accompanying the two samples etc. sent to the Local (Health) Authority. Ext. P8 is the postal acknowledgement of the Public Analyst for having received Form VII memorandum and specimen impression of the seal sent separately by registered post. Ext. P9 is the copy of the specimen impression slip. Ext. P10 is the copy of the letter sent to the Public Analyst along with specimen impression of the seal. Ext. P11 is the report of the Public Analyst. In the two courts below there was a contention raised that no independent witnesses had been called and the contention was overruled. pw. 2 declined support to the prosecution case and he was cross-examined on behalf of the complainant. But pw. 3 supported the prosecution case, The evidence of pw. 2 that he did not see the occurrence cannot be countenanced since he signed the mahazar. He was present in the Society at the time. He is an employee of the Society. It cannot be said that these witnesses are interested or not independent witnesses. But pw. 3 supported the prosecution case, The evidence of pw. 2 that he did not see the occurrence cannot be countenanced since he signed the mahazar. He was present in the Society at the time. He is an employee of the Society. It cannot be said that these witnesses are interested or not independent witnesses. In these circumstances I do not find any infirmity in the prosecution case regarding the purchase of milk from the revision petitioner and sampling made by pw. 1. 4. Ext. P11 report shows that the sample was received intact and in proper condition and the milk was fit for analysis and contained 2.4 per cent milk fat and 9.0 per cent milk solids-not-fat. Clearly the sample was deficient in milk fat to a considerable extent. The sample has to be treated as sample of adulterated milk. 5. The only contention urged at the Bar by learned counsel for the revision petitioner is that the Local (Health) Authority violated the mandatory requirements of S.13(2) of the Act and therefore the revision petitioner deserves to be acquitted. Learned counsel pointed out that a copy of the report and intimation as contemplated under S.13(2) of the Act was not served on the revision petitioner and that it was handed over to him only in court by the Food Inspector The evidence of pw.1 clearly shows that the Local (Health) Authority had forwarded a copy of Ext.P11 report and the intimation regarding the institution of prosecution and these records were put in Ext. P12 cover and sent by registered post to the revision petitioner in the address "C/o. Ramaswamy, Naisserry Veedu, Thottakattukara, Alwaye". The cover was returned to the Local (Health) Authority with several endorsements of the Postman made on several dates between 10-5-1979 and 29-5-1979 to the effect "not known; no such addressee". The Local (Health) Authority did not make any attempt to forward the same once again to the revision petitioner. On 20-6-1979 the revision petitioner appeared in court in response to summons served on him in the case. In the summons the same address was shown and was served on him by the Food Inspector. Ext. P12 cover was opened in court and the Food Inspector handed over the contents viz., the copy of the report and the intimation under S.13(2) to the revision petitioner and acknowledged it under Ext. P13 receipt. In the summons the same address was shown and was served on him by the Food Inspector. Ext. P12 cover was opened in court and the Food Inspector handed over the contents viz., the copy of the report and the intimation under S.13(2) to the revision petitioner and acknowledged it under Ext. P13 receipt. Admittedly the revision petitioner did not file an application for sending one of the two samples in the custody of the Local (Health) Authority, to the Director of Central Food Laboratory. The question which arises for consideration is whether in the facts and circumstances it can be said that there was non-compliance with the provisions of S.13(2) of the Act read in the light of R.9A of the Rules. 6. Sub-s. (1) of S.13 requires the Public Analyst to deliver, in the prescribed form, a report to the Local (Health) Authority of the result of the analysis. Sub-s. (2) requires that on receipt of the report to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution, forward, in the prescribed manner, a copy of the report to the person from whom the food article was taken and the person covered by S.14A informing them that if they so desire, they may 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. Some of the sub-sections lay down in what manner, on the request of the accused the other sample is to be forwarded to the Central Food Laboratory for analysis. It is also stated that the certificate of the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst. R.9A of the Rules states that the Local (Health) Authority shall immediately after the institution of prosecution, forward a copy of the report by registered post or by hand, as may be appropriate, to the person from whom the sample had been taken. This Court has repeatedly emphasised the importance of the right conferred under S.13 on the persons mentioned therein and the need for these provisions being complied with. (See State of Kerala v. John 1978 KLT. 738, P. A. Jose v. Food Inspector. 1981 KLT. This Court has repeatedly emphasised the importance of the right conferred under S.13 on the persons mentioned therein and the need for these provisions being complied with. (See State of Kerala v. John 1978 KLT. 738, P. A. Jose v. Food Inspector. 1981 KLT. 31, Chockelingam v. Food Inspector, 198! KLT. 628, Paul v. Ibrahim & Others, 1981 KLT. Short Notes, page 81, Food Inspector v. Prabhakaran,1982 KLT. 809 (FB), Food Inspector v. Ahammad Haji,1983 KLT. 189, and State of Kerala v. Soman, 1983 KLT. 297). This Court has taken the view in Prabhakaran's case that the expression "immediately" in R.9A cannot be understood rigidly or technically. 7. It is the contention of the learned counsel for the revision petitioner that unless the Local (Health) Authority actually delivers the copy of the report and the intimation to the person from whom the sample was taken or ensures such delivery, it has to be held that there is non-compliance with the provision. This, it appears to me, is an extreme and unsustainable view having regard to the purpose of the Act and the intention behind these provisions. What S.13(2) requires is the Local (Health) Authority should "forward" in the prescribed manner a copy of the report, "informing" him of his right to make an application in Court within a period of 10 days from the date of receipt of the copy of the report to get the other sample analysed by the Central Food Laboratory. R.9A also state that the Local (Health) Authority should "forward" copy of the report. The expression "forward" only means send or despatch. Of course, while forwarding the copy of the report, information must be given to the person concerned of his right to move such an application. In this connection in the decision in P. A. Jose's case, I had occasion to observe as follows: "In a case where the Local (Health) Authority is satisfied that he has done all that he could under the provisions of the Act and the Rules and that the accused persons are avoiding service, he need not feel frustrated or helpless. In this connection in the decision in P. A. Jose's case, I had occasion to observe as follows: "In a case where the Local (Health) Authority is satisfied that he has done all that he could under the provisions of the Act and the Rules and that the accused persons are avoiding service, he need not feel frustrated or helpless. It is open to the prosecution to adduce evidence before the court holding the enquiry or trial, to show that the Local (Health) Authority has done all that he could do and that there has been avoidance or refusal to receive the report and intimation on the part of the accused; if the court accepts the evidence, the mandate of S.13(2) of the Act could be deemed to have been obeyed." 8. S.13(2) of the Act and R.9A of the Rules only require the Local (Health) Authority to "forward "a copy of the report "informing" the person concerned of his right. This could be done either by registered post or by hand, as may be appropriate. There may be cases where the accused person refuses to receive the report or intimation; there may be cases where he avoides receiving it by making himself scarce or by other means; there may be cases where the person from whom the sample is taken deliberately gives wrong address to the Food Inspector in which case the report and intimation would be sent to such wrong address. I am only trying to illustrate the point. In such cases, it would be possible for the prosecution to contend successfully that the Local (Health) Authority has done whatever is expected of him by the statute and the Rules and therefore there has been due compliance. In such cases, his inability to take advantage of the opportunity to get a second opinion from the Director of the Central Food Laboratory would be attributable not to any non-compliance by the Local (Health) Authority, of the provisions of the Act and the Rules, but to his own conduct. In such a contingency, it cannot be said that there has been non-compliance with S.13(2) of the Act or R.9A of the Rules and it will not be possible for the defence to contend that the accused has been prejudiced by any default on the part of the statutory authority. 9. In such a contingency, it cannot be said that there has been non-compliance with S.13(2) of the Act or R.9A of the Rules and it will not be possible for the defence to contend that the accused has been prejudiced by any default on the part of the statutory authority. 9. Of course, just as it is open to the prosecution to show that the Local (Health) Authority did whatever was expected of him under the Act and the Rules and the actual non-service on the accused of the copy of the report and the intimation was on account of the attitude or act of the accused himself, it would be equally open to the accused to show that he was not guilty of any such conduct resulting in non-service of the report and intimation on hint). It would also be open to him to show on the evidence and circumstances obtaining that the Local (Health) Authority did not discharge the statutory duty vesting in him. If the Court is satisfied that the Local (Health) Authority did not discharge the statutory duty vesting in him, it would be open to the court to hold that there has been non-compliance resulting in prejudice to the accused. 10. The records of the case clearly established that Local (Health) Authority did discharge his duty and it must have been the revision petitioner who avoided service of the copy of report and intimation by some means. Copy of the report and intimation under S.13(2) of the Prevention of Food Adulteration Act was forwarded by the Local (Health) Authority on 7-5-1979 to the revision petitioner in the address shown in the mahazar Ext. P4 This is seen from the cover Ext. P12 with postal acknowledgement. The cover carries several endorsements of the postman on several dates during the period 10-5-1979 till 29-5-1979. Ultimately on 29-5-1979 it was returned to the sender with the endorsement "not known; no such addressee". It is significant to note that the summons (showing the same address as in Ext. P12 cover), which had been handed over to the Food Inspector, had been served on the revision petitioner. The bail bond executed in the trial court and vakkalath filed therein also carry the same address. In the memorandum of appeal as well as memorandum of revision the same address is given. P12 cover), which had been handed over to the Food Inspector, had been served on the revision petitioner. The bail bond executed in the trial court and vakkalath filed therein also carry the same address. In the memorandum of appeal as well as memorandum of revision the same address is given. The revision petitioner at no stage had a case that the address shown in Ext. P12 cover was not the correct address. On 20-6-1979 when the Food Inspector and the revision petitioner were present in the trial court, with the permission of the court, Ext. P12 cover was opened and the copy of the report and intimation found therein were handed over to the revision petitioner by the Food Inspector. In the light of these circumstances, it cannot be held that the Local (Health) Authority did not discharge the statutory duty cast on it under S.13(2) of the Act. Even after 20-6-1979 the revision petitioner did not move an application before the trial court requiring one of the samples in the custody of the Local (Health) Authority to be forwarded to the Director of Central Food Laboratory. I am therefore unable to accept the contention that there has been non-compliance with S.13(2) of the Act or R.9A of the Rules. At any rate this is not a case where it can be said that the revision petitioner suffered any prejudice. It has been proved that the Food Inspector purchased a sample of cow's milk from the revision petitioner in accordance with law and the sample was adulterated. The conviction entered and sentence imposed on the revision petitioner do not warrant interference. The revision is dismissed.