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1986 DIGILAW 14 (KER)

FOOD INSPECTOR v. VARGHESE

1986-01-07

SREEDHARAN

body1986
Judgment :- 1. The Complainant, Food Inspector, Trichur Municipality in ST. 53/80 on the file of the Chief Judicial Magistrate, Trichur is the appellant in this appeal. He purchased 675 ml. of buffalo milk from the second accused who brought it for sale to the Casino Cafe at Trichur, after revealing his identity and making known of his intention to have it analysed by the public analyst. After due sampling and preparation of the mahazar etc. one sample was sent to the public analyst for analysis. The public analyst as per his report found the milk to be adulterated as it does not conform to the standard prescribed for buffalo milk and that the sample contained not less than 11 per cent of added water. The accused was also thereupon duly informed to the report of the public analyst as provided by S.13(2) of the Prevention of Food Adulteration Act after filing the complaint before court. The accused got the second sample analysed by the Director of Central Food Laboratory. The report of the Director of Central Food Laboratory also go to prove that the sample was an adulterated one. In support of the prosecution pws.1 and 2 were examined and exhibits P1 to P11 were marked After considering the above evidence the learned Magistrate came to the conclusion that the second accused sold 675 millilitres of buffalo milk to pw.1, that the prosecution has not established the first accused's connection with the second accused, that the milk sold by the second accused was adulterated that there was no violation of the provisions contained in S.10 (7) of the Prevention of Food Adulteration Act and that the provisions contained in S.13(2) and R.9A of the Rules have been violated. In view of the finding that there was violation of the provisions contained in S.13(2) of the Act and R.9A of the Rules the learned Magistrate acquitted the accused. Hence this appeal. 2. Pw.l, the Food Inspector purchased 675 milli litres of buffalo milk after complying with the requirements laid down by the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules). Ext. P1 is the notification of the State Government authorising pw.1 to discharge all the functions of the Food Inspector under the Act. Ext. Ext. P1 is the notification of the State Government authorising pw.1 to discharge all the functions of the Food Inspector under the Act. Ext. P2 is the copy of Form VI notice issued to the second respondent for the purchase of 675 milli litres of buffalo milk. Ext. P3 is the voucher given by the second accused on receipt of Rs. 2/-being the price of the quantity of milk purchased by pw.1. Ext. P4 is the copy of the mahazar prepared by pw. I when he purchased the milk and sampled the same, Ext. P5 is the copy of Form VII Memorandum prepared by the Food Inspector. Ext. P6 is the intimation sent to the Local Health Authority and Ext. P7 is the notification constituting the Local Health Authority. Ext. P8 is the report of the public analyst. It states that buffalo milk had a specific gravity of 1.024 at 30 decree C. The result of the analyst is Milk fat 5.6 per cent (as against 5 per cent fixed the Rules) and milk solids-not-fat 8.0 per cent (as against 9 per cent fixed under the Rules). The report further goes to show that the sample did not conform to the standard prescribed for the buffalo milk under the Rules and is therefore adulterated. The Public Analyst went on to state that the sample contains not less than 11 per cent of added water as calculated from the milk solids-not-fat content. Ext. P9 is the intimation sent by the Local Health Authority, to pw.1. After the complaint was filed the Local Health Authority sent an intimation under S.13(2) of the Act to the accused. Ext. PIO is the copy of that intimation. The accused got a sample sent to the Central Food Laboratory from court. The certificate issued by the Central Food Laboratory is Ext. P11. It states that the milk fat was 5.2 per cent and milk solids not fat is 7.9 per cent. That certificate further states that the sample was in a fit condition for analysis, that the sample does not conform to the standards laid down for buffalo's milk under the provisions of the Act and Rules and that the milk solids not fat falls below the minimum specified limit of 9.0 per cent. That certificate further states that the sample was in a fit condition for analysis, that the sample does not conform to the standards laid down for buffalo's milk under the provisions of the Act and Rules and that the milk solids not fat falls below the minimum specified limit of 9.0 per cent. It further states that the seal fixed on the container tallied with the specimen seal impression sent separately along with the copy of the memo. 3. The certificate Ext. P11 issued by the Central Food Laboratory proves beyond doubt that the sample of milk sold by the second accused to Pw.l did not conform to the standards laid down for buffalo's milk under the provisions of the Act and Rules. The milk solids-not-fat contents fell below the minimum specified limit of 9.0 per cent. As such the milk sold is proved to be adulterated. The respondents-accused in this case have no case that the fall in the standard was due to some natural causes beyond their control. Therefore the finding arrived at by the learned Magistrate that the milk sold by second accused to pw.1 was adulterated is perfectly legal and it calls for no interference. 4. The learned Magistrate acquitted the accused solely on the ground of the violation of provisions contained in S.13(2) of the Act and R.9A of the Rules. The complaint was filed before court on 4-11-1980. The learned Magistrate ordered notice to the accused on 10-11-1980. Ext. P10 intimation was sent to the accused only on 28-11-1980, i. e. after a lapse of 24 days from the date of filing the complaint before court. This delay, according to learned Magistrate was fatal to the prosecution and the accused are entitled to an acquittal. I find it difficult to sustain this conclusion arrived at by the learned Magistrate. Reference may be made to a Full Bench decision in Food Inspector v. Prabhakaran (1982 KLT. 809) and Tulsiram v. State of Madhya Pradesh (1984 Criminal Law Journal 1731). I find it difficult to sustain this conclusion arrived at by the learned Magistrate. Reference may be made to a Full Bench decision in Food Inspector v. Prabhakaran (1982 KLT. 809) and Tulsiram v. State of Madhya Pradesh (1984 Criminal Law Journal 1731). In the later decision Their Lordships of the Supreme Court observed: "Rule 9-A is made in the context of the amended S.13 (2) which provides for the forwarding of the Public Analyst's Report to the person from whom the sample was taken after the institution of prosecution and enables that person to apply to the court to have analysed by the Central Food Laboratory the sample kept with the Local (Health) Authority. In the context the expression 'immediately' is only meant to convey 'reasonable despatch and promptitude' and no more. The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence. First to construe 'immediately' as meaning 'at once' or 'forthwith' and next to hold delay to be fatal to the prosecution would perhaps to make R.9A ultra vires S.13(2). We do not think it is permissible to interpret R.9-A in such a way. The real question is, was the Public Analyst's Report sent to the accused sufficiently early to enable him to properly defend himself by giving him as opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis. If after receiving the Public Analyst's Report he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice. Our conclusions on this question are: The expression'immediately in R.9-A is intended to convey sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under S.13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with R.9-A is not fatal. It is a question of prejudice." In Criminal Appeal No. 205/82 (1986 KLT. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under S.13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with R.9-A is not fatal. It is a question of prejudice." In Criminal Appeal No. 205/82 (1986 KLT. 174) a Division Bench of this Court, after considering all the previous decisions on the point observed: "Non-compliance with or defective compliance, as long as there is no serious prejudice caused to the accused, cannot vitiate the prosecution or lead to acquittal. The Courts cannot assume prejudice without any factual foundation or data." From these decisions it follows that any delay in sending the intimation under S.13(2) of the Act or 9A of the Rules will be fatal to the prosecution only if the said delay has caused prejudice to the accused. The delay by itself, if has not resulted in any prejudice to the accused, will not go to help the accused to claim an acquittal. The prejudice can be found only on the accused sending the second sample to the Central Food Laboratory finding the sample unfit for analysis on account of the delay. In the instant case, the accused got a sample sent to the Central Food Laboratory and the Director found the sample in a condition fit for analysis and he did in fact analyse the sample and gave Ext. P11 certificate. This means that the delay has not caused any prejudice to the accused. In other words, the delay of 24 days in sending the intimation under S.13(2) of the Act or R.9A of the Rules has not in any way gone to prejudice the accused in their defence. Therefore the learned Magistrate was clearly in error in acquitting the accused on the sole ground of violation of the provisions contained in S.13(2) of the Act and R.9A of the Rules. 5. The learned counsel appearing for the respondents-accused raised a contention that the milk which was sold to pw. I was not properly churned, so that the sample was not a homogeneous part of the whole milk brought by pw. 2. I do not find any substance in this argument of the learned counsel. Milk was brought by the second accused in a container. I was not properly churned, so that the sample was not a homogeneous part of the whole milk brought by pw. 2. I do not find any substance in this argument of the learned counsel. Milk was brought by the second accused in a container. After complying with the requirements of the Act and Rules the Food Inspector wanted 675 milli litres of milk from the second accused. If in practice the milk was to be stirred or churned before sale the vendor, the second accused ought to have churned or stirred the milk before the sale was effected. Before the purchase of 675 milli litres, the Food Inspector had no dominion or ownership over any portion of the milk brought by the second accused. He was an absolute stranger to that article. He is not expected, nor is he allowed by law to tamper with the milk that is in the custody of the second accused. For the fault of the second accused, if churning was necessary, neither the Food Inspector nor the prosecution can be found fault with. 6. Reliance was placed on the decision Food Inspector Municipal Corporation, Baroda v. M. R. Shamra (AIR. 1983 SC. 176) by the learned counsel appearing for the respondents to contend that if there was no churning the sample cannot be considered to be a homogeneous and representative one. A reading of that decision will show that the Food Inspector is to mix the 675 milli litres purchased by him to make the sample homogeneous and representative. The decision does not go to lay down the proposition that the Food Inspector must churn the entire quantity of milk before he purchases the 675 milli litres for sampling. What their Lordships have stated is: "The sample must be homogeneous and representative so that the analysis can furnish reliable proof of the nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative" In the instant case the Food Inspector got the 675 milli litres in a large container. It is from that large container he bad poured 225 milli liters each in three sample bottles. For this purpose churning is one of the methods of making the sample homogeneous and representative" In the instant case the Food Inspector got the 675 milli litres in a large container. It is from that large container he bad poured 225 milli liters each in three sample bottles. The procuring of 675 milli litres in a large vessel and then the division into three parts with the help of smaller vessel, is sufficient churning for making the sample homogeneous and representative one. In the light of this evidence T do not find any substance in the argument advanced by the learned counsel that there was no churning for making the sample a homogeneous one. 7. The learned counsel raised yet another contention that the vessel in which the 675 milli litres of milk was taken was not shown to be cleaned and dry. I find precious little in this argument because the Food Inspector has categorically stated that the vessel was clean and dry. There was no cross-examination on this point questioning the correctness of the above statement made by pw.1. In the absence of any material to support the defence contention I hold that the Food Inspector has sampled the milk in strict compliance with the provisions contained in the Act and the Rules. At this juncture I think it worthwhile to refer to the observation made by Bhat, J. in Food Inspector v. The Pirayiri Co-op. Milk Society Ltd. (1983 KLJ. 579) "Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. But where he gives evidence only in a general way indicating the steps taken by him, but without specifically referring to the details, that cannot straight away lead to acquittal of the accused. His evidence may be corroborated by the mahazar and the other evidence and supported by the contents of the report of the Public Analyst unless the same is challenged in cross-examination or in some other way known to law. Where the accused refrains from cross-examining the Food Inspector in regard to these details and fails to suggest either non-compliance with any particular detail of a rule or prejudice having been suffered by the accused, he certainly runs a risk. Where the accused refrains from cross-examining the Food Inspector in regard to these details and fails to suggest either non-compliance with any particular detail of a rule or prejudice having been suffered by the accused, he certainly runs a risk. In the absence of any inhibiting factor it is open to the court to presume that the official act has been regularly performed where it is shown that the official act has been regularly performed." This observation has been quoted with approval by a Division Bench in Criminal Appeal No. 205/82 (1976 KLT.174). Thus it has been established in this case that the Food Inspector has discharged his duties strictly in compliance with the provisions contained in the Act and the Rules. 8. The prosecution alleges that the first accused is the owner of the milk and the second accused was only taking the same for being sold to casino cafe Apart from the epse dixit of pw.1 there is nothing to connect the first accused with the milk. Therefore the acquittal of the first accused calls for no interference. 9. From the finding arrived at by me earlier in this judgment it is proved that the prosecution has succeeded in proving the charge levelled against the second accused. It therefore follows that the second accused is guilty of the offence punishable under S.16(1) (a) (i) read with S.7(1) of the Prevention of Food Adulteration Act. 10. The learned counsel appearing for the respondents raised a contention that the second accused was aged 16 only on the date of the commission of the offence and he is entitled to the benefit of S.20AA of the Act. T do not find any substance in this argument either. The entire court records proceed on the basis that he was aged 19 in 1986. Of course he has stated in the written statement filed before the court below that he was only 16 years of age, but that has not been substantiated. So I do not find any way to invoke the provisions of S 20AA of the Act. In the result the second accused is found guilty of the offence punishable under S.16(1)(a) (i) read with S.7(1) of the Act. He is convicted for the said offence. So I do not find any way to invoke the provisions of S 20AA of the Act. In the result the second accused is found guilty of the offence punishable under S.16(1)(a) (i) read with S.7(1) of the Act. He is convicted for the said offence. Since the article of food is milk, being a primary food which is adulterated due to human agency and since the second accused is a person of tender age, just above the age of 18 contemplated by S 20 AA, I sentence him to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 500/-. In default of payment of fine he is to undergo simple imprisonment for a further period of two months. The acquittal is set aside as against the second accused and the appeal is allowed as stated above.