FOOD INSPECTOR v. P. N. MUTHU & CO. — 1986 DIGILAW 94 (KER)

Judgment :- 1. The Food Inspector, Complainant in S.T. Case No. 6/80 on the tile of the Addl. Judl. First Class Magistrate's Court I, Tellicherry is the appellant in this appeal. Accused S in number were charged with offences punishable under the provisions of the Prevention of Food Adulteration Act (for short the Act) and the Rules framed thereunder. Accused 2 to 4 are the partners of the first accused firm which supplied the cotton seed oil to the 5th accused, who is a retailer at Tellicherry. The said sale by the first accused to 5th accused was covered by Ext. P28 bill. From the 5th accused the Food Inspector purchased 600 gms of cotton seed oil after getting a sealed tin opened for the said purpose. On analysis the oil was found adulterated. The Food Inspector after getting the details regarding the partners of the first accused firm laid the complaint against all the 5 accused. The trial court acquitted the accused on the following grounds: a) Violation of R.7(3) b) Violation of R.9A c) Non-compliance with the provisions of R.16(c) and (d) d) Non-compliance with R.17 e) S.11 (1)(a) is violated. f) From Ext. P3 and P32 it can be seen that there is a likelihood of mixing up of the sample. g) S.13(2) has been violated. 2. Ext. P28 is the bill issued by the first accused evidencing the sale of 50 tins of cotton seed oil to the 5th accused. The sale was on 10-11-1979. Ext. P29 extract from the accounts of A5 goes to establish the purchase under Ext. P28. Out of the 50 tins of oil 45 tins have already been sold out. When the Food Inspector, P.W. 4 visited the shop of A5, there remained only 5 sealed tins of cotton seed oil. One sealed tin was opened and 600 gms of cotton seed oil was purchased by the Food Inspector in accordance with the provisions contained in the Act and the Rules. He sampled the same and gave number "182". P.W.2 is an attestor to Ext. P9 mahazar prepared by the Food Inspector. He fully corroborates the version of P.W.4 that the sample was taken from the sealed tin which was opened in the presence of the Food Inspector at the time of his purchase. Each tin has a capacity of 15 and half kgs. P.W.2 is an attestor to Ext. P9 mahazar prepared by the Food Inspector. He fully corroborates the version of P.W.4 that the sample was taken from the sealed tin which was opened in the presence of the Food Inspector at the time of his purchase. Each tin has a capacity of 15 and half kgs. P.W.2 and 4 further swear that at the time of the sampling A5 had shown the warranty issued by the first accused firm and that all the tins were having the original seal. The Food Inspector sent one sample to the Public Analyst for analysis along with the Form VII memorandum and a specimen impression of the seal with which the sample was sealed. Another Form VII memorandum and specimen impression of the seal were separately sent to the Analyst. After analysis the Public Analyst gave his report in Form No. III which contain the following details: " Table:#1 The said sample does not conform to the standards prescribed for cotton seed oil under the Prevention of Food Adulteration Rules, 1955 and is therefore adulterated. I am further of or in ion that the sample consists of a mixture of Cotton seed oil fifty percent (50.0 percent) and Soyabean oil, Fifty percent (50.0 per cent)." 3. After sending one sample to the Public Analyst the remaining two samples were forwarded to Local Health Authority (for short LHA). On getting the report of the Public Analyst, the LHA intimated the Food Inspector of the result. Thereupon after filing the complaint the Food Inspector wrote to the LHA to take action under S.13(2) against the warrantors and the vendor namely accused 1 to S by sending the original of Ext. P5. The LHA sent the report of the Public Analyst as required by S.13(2) informing all the accused that if they so desired may make an application to the court to get the sample kept by him analysed by the Central Food Laboratory. On getting that intimation under S.13(2) the accused applied to the court to have one of the samples analysed by the Central Food Laboratory. The certificate issued by the Director of Central Food Laboratory is marked as Ext. P32. On getting that intimation under S.13(2) the accused applied to the court to have one of the samples analysed by the Central Food Laboratory. The certificate issued by the Director of Central Food Laboratory is marked as Ext. P32. It contains the following details: " Table:#2 Opinion The sample does not conform to the standards laid down for cotton seed oil under the provisions of PFA Act 1954 and Rules thereof in that a) Iodine value exceeds the maximum specified limit of 112. b) Butyro-refractometer reading at 40 degree C exceeds the maximum specified limit of 60.2. c) Not free from the presence of sesame oil." 4. Now I shall deal with the various grounds relied on by the learned Magistrate for acquitting the accused. The first ground is the violation of R.7(3). That Rule as it stood at the relevant time reads: "The public analyst shall, within a period of 45 days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority, a report of the result of such analysis in Form III." In the instant case the Food Inspector purchased the sample at 10.40 a.m on 17-11-1979. Ext. P14 railway receipt shows that the sample was sent by the Food Inspector to the Public Analyst on 17-11-1979 itself. Ext. P3 report of the Public Analyst in Form III shows that he received the sample on 19-11-1979. Ext. P3 is dated 10-12-1979. It means that the Public Analyst had analysed the sample atleast on 10-12-1979, if not earlier, i.e. the analysis was well within the period prescribed under the Rule quoted above. The report of the Public Analyst is seen received by the LHA on 15-12-1979 as seen from the date given below his signature affixed to it. On getting Ext. P3 the LHA sent Ext. P4 intimation to the Food Inspector informing him that the sample is found to be adulterated on analysis. That intimation is dated 16-12-1979; but signed by the LHA on 17-12-1979. The time limit fixed under R.7(3) is only for the report to reach the LHA and not the accused. The LHA received Ext. P3 well within the prescribed period and he in his turn informed the Food Inspector by Ext. P4, also well within the said period about the result of the analysis. The time limit fixed under R.7(3) is only for the report to reach the LHA and not the accused. The LHA received Ext. P3 well within the prescribed period and he in his turn informed the Food Inspector by Ext. P4, also well within the said period about the result of the analysis. Nowhere in the Act or Rule any period has been fixed for the Food Inspector to file the complaint before court. The Food Inspector has to inform the LHA of his filing the complaint, immediately on filing the same. Therefore I fail to understand how the learned Magistrate came to the conclusion that R.7(3) has been violated in the instant case. 5. Violation of the provision contained in R.9A has been relied on by the learned Magistrate for acquitting the accused. This Rule enjoins upon the LHA to forward a copy of the result of analysis in Form III to the person from whom the article was taken by the Food Inspector and simultaneously to the person, whose name, address and other particulars have been disclosed under S.14A of the Act. In this case, the LHA is bound by this Rule to send the report to accused 1 to 5, immediately after the initiation of the prosecution. The complaint filed before the court is dated 30-1-1980. The court took it on file on 1-2-1980. Immediately after filing the complaint the Food Inspector sent the original of Ext. P5 to the LHA on 30-1-1980 itself. By this letter the Food Inspector has requested the LHA to take further necessary action under S.13(2) of the Act. Ext. P6 series 5 in number are the copies of the intimation under S.13(2) sent to the five accused. It is dated 1-2-1980, signed by the LHA on 2-2-1980. They were received by the accused 1 and 3 to 5 as seen from the postal acknowledgement receipts Ext. P8 series. The intimation sent to the second accused was returned with the endorsement 'addressee on tour, arrival date not known'. 6. R.9A directs the LHA to forward the intimation by registered post. If on account of the non-availability of the addressee in station, it is returned by postal authorities it cannot amount to a violation of R.9A. P8 series. The intimation sent to the second accused was returned with the endorsement 'addressee on tour, arrival date not known'. 6. R.9A directs the LHA to forward the intimation by registered post. If on account of the non-availability of the addressee in station, it is returned by postal authorities it cannot amount to a violation of R.9A. The rule only directs LHA to forward the copy of the report of the result of analysis by registered post or by hand as may be appropriate in a given case. It does not go to state that the report sent by post must be delivered to the addressees who are the persons mentioned in the rule. In other words the provision of the rule will be strictly complied when the L.H.A adduces evidence to show that he had forwarded the report of the Public Analyst by registered post. Within two days of the filing of the complaint the L H.A. forwarded the copy of the Public Analyst's report and gave notice contemplated by S.13(2) to all the accused. The accused on receipt of that intimation applied to the court to send one sample remaining with L.H.A. to the Central Food Laboratory. The Director of Central Food Laboratory analysed the sample and gave Ext. P32 certificate. These circumstances go to establish the fact that the L.H.A. strictly complied with the mandate given by R.9A. Further since the sample was got analysed by the Central Food Laboratory, no prejudice has been caused to the accused either. Hence there was no violation of R.9A of the Rules. 7. The learned Magistrate has taken the view that R.16(c) and (d) are violated in this case on account of the mahazar having been written in printed form. There is no provision in the Act or Rules which provides for preparation of a mahazar. Under S.10(7) of the Act, the Food Inspector shall call one or more persons to be present at the time when he takes action under the provisions of the Act and he should take their signatures. For enabling the Food Inspector to have the signatures of these witnesses, he has to prepare a memorandum or mahazar. No particular form is prescribed for the said purpose. So, he can make use of the printed form by filling it up with the relevant details of the actions taken by him. For enabling the Food Inspector to have the signatures of these witnesses, he has to prepare a memorandum or mahazar. No particular form is prescribed for the said purpose. So, he can make use of the printed form by filling it up with the relevant details of the actions taken by him. Thus the court below was clearly in error in observing "Compliance of R.16 (c) and (d) is only in printed form and is not written by the Food Inspector then and there and hence no value can be attached to the mahazar." Ext. P9 is the mahazar prepared by the Food Inspector. It contains the various steps taken by him in sampling the cotton seed oil purchased by him from 5th accused. P.W. 2 is an independent witness who attested the mahazar. He has fully corroborated the testimony of the Food Inspector and has sworn to the facts stated in Ext. P9. Thus there is no violation of any of the provisions of the Act or Rules in getting the mahazar prepared in the printed form. 8. The learned Magistrate, without any reasoning came to the conclusion that R.17 of the Rules is violated. The evidence in the case goes to show that the Food Inspector has strictly complied with the provisions contained in the Rule. One sample with Form VII memorandum was sent in a sealed packet to the Public Analyst on 17-11-1979 itself as evidenced by the Railway Receipt Ext. P14. The remaining two parts of the sample with Form VII memorandum was also sent to the L.H.A. on the same day as is evidenced by Ext. P2. Thus there is strict compliance with the provisions contained in R.17 of the Rules. 9. Another ground relied on by the learned Magistrate is the violation of S.11(1) (a) of the Act. As per this provision the Food Inspector should give notice in writing of his intention to have the sample analysed to the person from whom he took the sample and also to the person whose address has been disclosed under S.14A of the Act. On the date of the purchase namely 17-11-1979 the Food Inspector sent the original of Ext.P19 Form VI notice under R.12 and S.11(1) (a) of the Act to the first accused P.N. Muthu and Co. That notice was received by the first accused on 19-11-1979 as seen from Ext.P20 postal acknowledgement receipt. On the date of the purchase namely 17-11-1979 the Food Inspector sent the original of Ext.P19 Form VI notice under R.12 and S.11(1) (a) of the Act to the first accused P.N. Muthu and Co. That notice was received by the first accused on 19-11-1979 as seen from Ext.P20 postal acknowledgement receipt. Thus the evidence in the case goes to show that the Food Inspector strictly complied with the provision contained in S.11(1) (a) of the Act. 10. The learned counsel appearing for accused 1 to 4 has raised a contention that the notice under S.11(1) (a) ought to have been issued to all the partners of the first accused firm. In the absence of individual notices to the partners, it is contended that the partners cannot be made liable. At the time when the Food Inspector purchases an article of food from a dealer, who is having the benefit of a warranty the dealer will only be in a position to give the name of the concern from which he purchased the article as seen from the warranty. He may not be in a position to give the names of persons in-charge of or are responsible for the conduct of the business of the concern. The details of such persons can only be gathered by the Food Inspector on further enquiry or investigation. So, at the time when the Food Inspector takes the sample for analysis he will not be in a position to give notice to all those persons, who were responsible for the business of the concern which sold the goods to the vendor under the warranty. Therefore the Food Inspector can, at the time of taking sample, only issue notice to the concern or to the person whose name is found on the warranty. Ext.P28 is the warranty. It shows P.N. Muthu and Co. as the warrantor. To that warrantor notice was sent. The firm accepted that notice. That notice will bind all the persons who were responsible for the conduct of the business of the firm. In this view there was strict compliance with the provisions contained in S.11(1) (a) of the Act. 11. Ext.P3 is the certificate issued by the Public Analyst. That has been superseded by Ext.P32, the certificate issued by the Director of the Central Food Laboratory. In this view there was strict compliance with the provisions contained in S.11(1) (a) of the Act. 11. Ext.P3 is the certificate issued by the Public Analyst. That has been superseded by Ext.P32, the certificate issued by the Director of the Central Food Laboratory. Once the sample is analysed by the Central Food Laboratory and a certificate is issued by its Director then the report given by the Public Analyst will be superseded. Thereafter, the report of the Public Analyst cannot be looked into for any purpose. The learned Magistrate has compared Ext.P3 with Ext.P 32 and taken a view that samples taken by the Food Inspector might have been mixed up. This procedure adopted by the court below is clearly an error. A perusal of sub-section 3 of S.13 would show that the report of the Director of the Central Food Laboratory supersedes the report of the Public Analyst issued under sub-section (1) of S.13. In other words, when the Director of the Central Food Laboratory issues the certificate, in pursuance to an application made by the accused under S.13 (2), the report of the Public Analyst ceases to exist in the eye of law and cannot be taken into consideration for any purpose whatsoever. The method adopted by the learned Magistrate in comparing the report of the Director with that of the Public Analyst for giving benefit to the accused is illegal and unsustainable. 12. The last ground that is relied on by the learned Magistrate for acquitting the accused is the violation of the provisions contained in S.13(2) of the Act. As stated earlier, the Food Inspector has strictly complied with all the mandates contained in the Act and the Rules. While dealing with the provisions contained in R.9A this matter was specifically dealt with. Ext.P6 series are the intimation under S.13(2). They are seen to have been sent on 2-2-80, within 3 days of filing of the complaint. In pursuance to that the accused have got a sample analysed by the Central Food Laboratory. Further no prejudice has been caused to the accused. So, it cannot be said that there is any violation of the provisions contained in S.13(2) of the Act (vide Tulsiram v. State of Madhya Pradesh A.I.R. 1985 SC 299). 13. In pursuance to that the accused have got a sample analysed by the Central Food Laboratory. Further no prejudice has been caused to the accused. So, it cannot be said that there is any violation of the provisions contained in S.13(2) of the Act (vide Tulsiram v. State of Madhya Pradesh A.I.R. 1985 SC 299). 13. One another contention raised by the learned counsel appearing for accused 1 to 4 is that the warranty Ext.P28 is one issued by the first accused, that the first accused alone can be made liable for the offence under the Act and that accused 2 to 4, who are the partners of the firm are not to be found guilty. In support of this argument the learned counsel relies on the decision reported in Smt. Manibai and another v. The State of Maharashtra ((1974)3 SCC 760). In that decision Their Lordships observed: "Even if it may be assumed that the business was owned by a firm or an association of individuals and Manibai was a partner of that firm or member of that association of individuals. Manibai would be liable under S.17(1) of the Act for the sale which was made by her son Pranjivan only if it was shown that she was in charge of and was responsible for the conduct of the business which was carried on at the shop." On the basis of the above observation the learned counsel submits that there is no evidence in the case to show that accused 2 to 4 were in charge of and were responsible for the conduct of the business which was carried on by the first accused and hence they are not to be made liable in this case. 14. P.W. 4, the Food Inspector swears while cross examined by the counsel appearing for the accused 1 to 4 that the business of the first accused partnership was being carried on by accused 2 to 4. The Food Inspector had written to the first accused asking for details of the partnership firm by the original of Ext. P 30 letter dated 18-1-1980. The reply given by the first accused is marked as Ext. P31. In that letter the firm's registration No. is given as 163/67-68, the place of registration as Registrar of Firms at Bangalore. Accused 2 to 4 are shown as the partners of the firm. P 30 letter dated 18-1-1980. The reply given by the first accused is marked as Ext. P31. In that letter the firm's registration No. is given as 163/67-68, the place of registration as Registrar of Firms at Bangalore. Accused 2 to 4 are shown as the partners of the firm. Further it is stated therein that the 4th accused P. Rangaswamy is the Managing Partner. This letter of the firm according to me will go to show that the 4th accused being the Managing Partner of the firm was the person in charge of and responsible to the firm for the conduct of the business of the firm. Therefore under S.17(1) he should be deemed to be guilty of the offence. The 4th accused could have got himself absolved from the liability had he let in evidence as provided by the proviso to S.17(1). In the absence of such a proof it has to be held that the 4th accused is liable for the offence charged against him. Even though the Food Inspector has stated that accused 2 to 4 are conducting the business of the first accused firm it cannot safely be concluded that accused 2 and 3 were in charge of and responsible to the firm for the conduct of the business of the firm at the time the sale was conducted. The 5th accused is protected by the warranty evidenced by Ext. P28. It therefore follows that the acquittal of accused 2, 3 and S has to be sustained and I do so. The order of acquittal of accused 1 and 4 cannot stand. Ext. P32 certificate issued by the Director of Central Food Laboratory shows that the cotton seed oil sold by the firm does not conform to the standard laid down by the Act and Rules. Thus it is proved beyond doubt that accused 1 and 4 have committed an offence punishable under S.16(1)(a)(i), 7 (1) and S.2(ia) (a) and (m) of the Prevention of Food Adulteration Act. The judgment of the learned Magistrate in so far as it relates to accused 1 and 4 are concerned is set aside and they are convicted under the above mentioned sections. The first accused is sentenced to pay a fine of Rs. 2500/-. The 4th accused is sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs. 1000/-. The first accused is sentenced to pay a fine of Rs. 2500/-. The 4th accused is sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs. 1000/-. In default of payment of fine, he is to undergo simple imprisonment for a further period of one month. The Magistrate will take steps to execute the sentence. In the result, the appeal is allowed in the above terms.