FOOD INSPECTOR v. ANANTHA PADMANABHAN — 1986 DIGILAW 112 (KER)

Judgment :- 1. The Food Inspector, Tripunithura Municipality, the complainant in S.T.No.787 of 1980, on the file of the Additional Judicial First Class Magistrate's Court-I, Ernakulam, is the appellant in this appeal. He challenges the order of acquittal passed by the learned magistrate. 2. The accused was charged under S.2 (1a) (m), 7 (i) and 16 (ia) of the Prevention of Food Adulteration Act read with appendix B.A.11.0208 of the Prevention of Food Adulteration R.1955. The allegation against the accused is that the Food Inspector purchased 900gms of Ice-cream from the accused who is conducting a hotel in the name and style of 'Bharath Cafe' at about 11.30 a.m. on 9-10-1980 for the purpose of analysis. The said Ice-cream was duly sampled into three parts as per the provisions of the Act and the Rules. One sample was sent to the Public Analyst for analysis. The Public Analyst reported that the sample was adulterated. On getting that report prosecution was launched against the accused. Notice and intimation under S.13(2) of the Act were sent to the accused. On getting that notice he applied to court for sending one other sample to the Central Food Laboratory, Mysore. The court sent the sample and the Director of the Central Food Laboratory examined the said sample and gave the certificate which also showed the Ice-cream was adulterated. 3. On the side of the prosecution P.Ws.1 to 3 were examined and Exts. P1 to P15 were proved. The learned magistrate without any discussion of the evidence observed: " It is admitted by the complainant himself that there is difference between the signatures in Exts. P4, P5 and P4 and P6. The defence argued that Exts. P5 and P6 are not signed by the accused and there was no proper sampling. S.10 (7) and 16 (C) of the Act is also not complied with. The accused is not a real person who sold the sample to the complainant Food Inspector. On a careful analysis of the evidence. I am satisfied that the prosecution has not succeeded in establishing the case against the accused beyond reasonable doubts." 4. One has to search in vain the circumstances which led the learned magistrate to come to the conclusion that S.10 (7) and 16 (C) of the Act are not complied with. The entire evidence was perused by me. I am satisfied that the prosecution has not succeeded in establishing the case against the accused beyond reasonable doubts." 4. One has to search in vain the circumstances which led the learned magistrate to come to the conclusion that S.10 (7) and 16 (C) of the Act are not complied with. The entire evidence was perused by me. That evidence does not give any room to support the above conclusion arrived at by the learned magistrate. The Food Inspector as P.W.1 has sworn to all minute details of action taken by him. It goes to establish the fact that he had complied with the provisions of the Act as well as the Rules thereunder, scrupulously. The learned counsel appearing for the accused has not advanced any argument before me challenging the legality or the correctness of the various steps taken by the Food Inspector in sampling and of the other actions taken by him in the case. 5. The main reason that appears to have weighed with the learned magistrate to acquit the accused is the dissimilarity in the signatures seen in Ext. P4 on the one hand and those of the accused in the other documents produced in the case. Ext. P4 has been produced by the Food Inspector as the application filed by the accused for licence for running the hotel in the name and style 'Bharat Cafe' for the year 1980 81. The signature seen therein has no comparison with the signatures seen in Exts. P5 and P6. According to me that dis-similarity is of no consequences. If the Food Inspector succeeds in showing that the accused before court had sold the Ice-cream which on analysis is found to be adulterated, he has committed the offence under the Prevention of Food Adulteration Act. The question whether he is the owner of the hotel or not is not of any consequence. So also the court is not concerned with the question as to whether Ext. P4 was signed by the accused P.W.1 has categorically stated that he issued Form-VI notice to the accused present in Court. Copy of the notice is marked as Ext. P5. Accused before Court had affixed his signature on the back of Ext. P5 in token of having accepted its original. Ext. P6 is the cash bill issued by the accused for the sale of 900gms of Ice-cream to P.W. 1. Copy of the notice is marked as Ext. P5. Accused before Court had affixed his signature on the back of Ext. P5 in token of having accepted its original. Ext. P6 is the cash bill issued by the accused for the sale of 900gms of Ice-cream to P.W. 1. It also contains his signature. The signatures on Exts. P5 and P6 have a striking similarity with the signatures seen in the vakalath filed by the accused before the court below, and with the signatures affixed by him in the various pages of the answers recorded under S.313 of the Code. On receipt of the intimation S.13 (2) he had filed a petition before Court for sending one sample to the Central Food Laboratory. The signature of the petitioner seen therein is similar to the one seen in the vakalath and Exts.P5 and P6. A comparison of these signatures leads to the one and the only conclusion that the accused had sold the Ice-cream to the Food Inspector in pursuance to Ext. P5 Form-VI notice and under Ext. P6 cash bill. So I have no hesitation in holding that the accused before court had sold the Ice-cream, which on analysis found to be adulterated. 6. The learned counsel appearing for the accused raised the contention that there is no documentary evidence to show that provisions contained in S.13 (2-B) of the Act have been complied with. As per that provision when the accused files an application for sending a sample available with the Local (Health) Authority to the Central Food Laboratory for analysis, the court should ascertain that the mark and seal or fastening as provided in clause (b) of sub-s. (1) of S.11 are intact and the signature or thumb-impression, as the case may be, is not tampered with. In this case, according to the learned counsel, there is no endorsement made by the magistrate to the above fact and so there is non compliance with the provisions contained in S.13 (2-B) of the Act. On this ground the learned counsel prays for dismissal of the appeal. 7. On 12-12-1980 the accused filed an application before the trial court praying for sending one sample kept by the Local (Health) Authority to the Director of Central Food Laboratory for analysis. That petition was allowed by the court and the Court directed the Local (Health) Authority to produce one sample before court. 7. On 12-12-1980 the accused filed an application before the trial court praying for sending one sample kept by the Local (Health) Authority to the Director of Central Food Laboratory for analysis. That petition was allowed by the court and the Court directed the Local (Health) Authority to produce one sample before court. The sample was submitted to the court along with the letter dated 19-12-1980. The letter of the Local (Health) Authority reads: "As per your direction, I am producing herewith the Sample bottle (Sample No.26 dated 9-10-80) along with the Form-VII Memorandum and Specimen impression of the seal used to seal the sample and on its outer cover to the respective sample, taken from the sealed packet entrusted by the Pood Inspector of this Municipality." The file contains the Form-VII memorandum and the specimen impression of the seal used used to seal the sample. On getting the sample and the above memorandum and specimen impression, the magistrate forwarded the sample to the Director of Central Food Laboratory, Mysore along with his letter dated 30-12-1980. The letter specifically mentions the following facts: "I am forwarding herewith one sealed packet containing one sealed sample bottle No. 26 dated 9-10-1980 and Ice-cream taken by Sri K.K. Sivanandan, the Pood Inspector, Tripunithura Municipality from one Anandapadmanabhan accused in S. T. 787 of 1980 on the file of this Court" From these materials it is evident that learned magistrate was satisfied about the seal, fastening and of the signature in the sample which was given No. 26 by the Food Inspector. Thus according to me there are materials among the records to show that the magistrate took all the steps contemplated by S.13 (2-B) of the Act. 8. The learned counsel appearing for the respondents brought to my notice the unreported decisions of this court in Crl. R. P. No. 19 of 1980 and 272 of 1981. In the earlier case Bhat, J. observed: "The judgment of the trial court does not show that the court ascertained if the mark and seal or fastening as provided in S.11 (1)(b) are in tact or that the signature or thumb impression as the case may be, is not tampered with. The order-sheet maintained by the trial court also does not show that the court discharged its duty under S.13(2-B). The order-sheet maintained by the trial court also does not show that the court discharged its duty under S.13(2-B). There is also no other material available among the records to show that what was required to be ascertained under this provision was in fact ascertained." In the second decision Padmanabhan, J. after referring to the decision reported in 1981 KLT Short Notes 97 (Case No. 174) observed: "P.W.1 has not stated that provisions of R.16 of the Prevention of Food Adulteration Rules have been complied with. The Judgment of the trial court does not show that the above mentioned provision contained in S.12 (2-B) of the Prevention of Food Adulteration Act has been observed. The orders of the petition filed by the revision petitioner requesting that one sample may be sent for second opinion to the Central Pood Laboratory also do not contain anything recorded by the Court to the effect that those formalities were complied with for the purpose of rendering satisfaction that the packets, seals etc., were intact. When the statute has prescribed such formalities, they cannot be taken as empty formalities. Such formalities must have been inserted with some purpose. That purpose may safeguard the interest of the accused person against possible vagaries. Even the order sheet do not contain compliance of the above said provisions. In such circumstances it may not be possible to ignore the argument that on account of the non-compliance of the provisions of S.12 (2-B). the report of the Director, Central Food Laboratory also will have to be considered as losing much] of its importance." 9. The learned counsel appearing for the appellant brought to my notice the decision in V. Mani v. The Food Inspector, Palghat and Another (1984 KLJ 752). In this decision Bhaskaran Nambiar. J. observed: "True, the case diary does not mention that "the Court has ascertained that the mark and seal etc., were intact before the sample was sent to the Director of the Central Food Laboratory. However in the application filed by the accused for sending the sample to the Central Food Laboratory, there is an endorsement, 'sample produced." Sample not tampered with, with a signature. The learned counsel attempted to submit that the signature contained under this endorsement was not that of the magistrate. However in the application filed by the accused for sending the sample to the Central Food Laboratory, there is an endorsement, 'sample produced." Sample not tampered with, with a signature. The learned counsel attempted to submit that the signature contained under this endorsement was not that of the magistrate. Apart from the fact that no basis has been made for any such submission before the Court below, there is one other circumstance which would show that the court bad applied its mind to these salient features prescribed under S.13 (2-B) before the sample was despatched to the Central Food Laboratory. The samples were despatched as per a communication dated 23-7-1979, in which there are detailed particulars of the sample packet, the seal etc., which would show that the seal and signature were intact. Moreover, the report of the Analyst, Ext P16, also specifically mentions that the seals were "intact and unbroken". The seal affixed on the container tallied with the seal impression sent separately along with the memo." If, therefore, the Central Food Laboratory obtained the sample with seals intact and unbroken, and the letter which was sent by the court also referred to the details on the sample packet, regarding the seal etc, it can safely be concluded that the endorsement made on the application by the accused was by the Court and that the Court had applied its mind as contemplated under S.13 (2-B; of the Act. There is thus no violation of S.13(2-B) of the Act either." 10. From the above decisions it is evident that the trial magistrates are bound to verify whether the mark and seal or fastening as provided in clause (b) of sub-s. (1) of S.11 are intact and that the signature or thumb-impression affixed over the packet is not tampered with. This statutory duty that is caused upon the trail magistrate has to be complied with. The trial magistrate will do well by recording these facts in the order-sheet or in the judgment. The failure in recording it in the order-sheet or judgment will not in any way go to prejudice the prosecution if there are other materials available among the records to show that which are required to be ascertained under the provisions of S.13 (2-B) were in fact ascertained. The failure in recording it in the order-sheet or judgment will not in any way go to prejudice the prosecution if there are other materials available among the records to show that which are required to be ascertained under the provisions of S.13 (2-B) were in fact ascertained. Further, the principles embodied in illustration (e) to S.114 of the Evidence Act that judicial and official acts have to be presumed to have been regularly performed is also available in this case. In the absence of any inhibiting factor, it is open to the court to presume that the official acts have been regularly performed when it is shown that the said acts have in fact been performed. Ext. P15 certificate issued by the Director of Central Food Laboratory states that the condition of the seals on the container and the outer cover was "intact and unbroken". It goes on to state "The seal fixed on the container tallied with the seal impression sent separately along with memo." In the above circumstances it has only to be held that the trial court did in fact comply with the provisions contained in S.13(2-B) of the Act. 11. The certificate issued by the Director, Central Food Laboratory clearly establishes the fact that the Ice-cream sold by the accused to the Food Inspector was adulterated. Therefore, the accused is guilty of the offence charged against him viz., under S.2 (ia) (m), 7 (i) and 16 of the Prevention of Food Adulteration Act. He is convicted of the said offence. He is directed to pay a fine of Rs. 1000/- and to undergo simple imprisonment for six months. In default of payment of fine he should undergo simple imprisonment for a further period of one month. The trial court will take necessary steps for executing the sentence.