KRISHNAN v. FOOD INSPECTOR — 1988 DIGILAW 234 (KER)

Judgment :- 1. First accused in S.T. No. 223/1982 on the file of the Judicial First Class Magistrate's Court, Taliparamba, is the petitioner in Crl R.P. 210/1986. Crl R.P. 211/1986 is filed by the 2nd accused in the said case. 2. Petitioners were charged with offence under S.2 (ia) (m) read with S.7 (1) and 16 (1) (a) (i) of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act'). The allegations made by the prosecution are as follows: Petitioner in R.P. 210/1986 was the licensee and the proprietor of Dwaraka Restaurant situated in Payyannur Bazar. The petitioner in R.P. 211/1986 was the Manager and Salesman of the said restaurant. The Food Inspector inspected the said restaurant at about 9.15 AM on 10-5-1982. He asked for curd exposed in the restaurant for sale. After revealing his identity he purchased 600 gms of curd from the petitioner in R.P. 211 of 1986 for analysis. He duly sampled the article of food so purchased. One sample was sent to the Public Analyst for analysis according to the rules and the remaining two parts were sent to the Local (Health) Authority. The Public Analyst reported that the sample of curd was adulterated. On receipt of that report prosecution was launched and notices under S.13 (2) of the Act were sent to the petitioners. The petitioners did not get one of the samples analysed by the Director of Central Food Laboratory. 3. To prove the offences the prosecution examined PWs 1 to 5 and got marked Exts. P1 to P24. On the side of the defence, DW-1 was examined and Ext. D1 was marked. After considering the above evidence the learned Magistrate found the petitioners guilty of the offences charged against them and convicted them there-under. They were accordingly sentenced to undergo simple imprisonment for six months each and to pay a fine of Rs. 1000/ each and in default of payment of fine they were directed to suffer simple imprisonment for one month each. This conviction and sentence were challenged before the lower appellate court. That court confirmed the conviction and sentence and dismissed the appeal. Hence these Revision Petitions. 4. Sri C.P. Damodaran Nair, learned Counsel appearing for the petitioner in R.P. 210/1986 raised two points for consideration. This conviction and sentence were challenged before the lower appellate court. That court confirmed the conviction and sentence and dismissed the appeal. Hence these Revision Petitions. 4. Sri C.P. Damodaran Nair, learned Counsel appearing for the petitioner in R.P. 210/1986 raised two points for consideration. They are: (i) The petitioner applied for the cancellation of the licence by his application dated 11-4-1982, on his leasing out the restaurant to one Tomy Cherakod. So, for the offences detected on 11-5-1982, the petitioner cannot be made liable; (ii) No notice under S.13 (2) of the Act was served on the petitioner and so the prosecution must fail as against him. Sri P.V. Surendranath, learned Counsel representing the petitioner in Crl R.P. 211/1986 raised a contention that the Food Inspector violated the provision contained in R.18 of the Prevention of Food Adulteration Rules and so the entire prosecution must fail. I shall proceed to deal with these contentions in detail. 5. It is the common case of parties that the petitioner in R. P. 210/1986 took the licence for conducting the business, Dwaraka Restaurant, for the period 1982-83. The licence taken by him was valid from 1-4-1982 to 31-3-1983. By Ext. D1 application dated 11-4-1982 he requested the Executive Officer of Payyannur Panchayat to cancel the licence issued to him for running the Dwaraka Restaurant. In that application he had stated that the business, Dwaraka Restaurant, carried on by him in building No. 12/284 has been rented out to one Tomy Cherakod and hence the licence granted in his name may be cancelled. DW-1, the Sanitary Inspector attached to the Panchayat prove that application which is marked as Ext. D1. According to him he is the custodian of the Register maintained under Act and that he got Ext. D1 immediately on its receipt in the office on 12-4-1982. He proves the endorsement made by the Manager of the Panchayat Office on Ext. D1. He further admitted before court that in furtherance to the application the licence issued to the petitioner in R. P. 210/1986 was cancelled. The endorsement regarding the cancellation was made in the Register on 11-11-1982. That endorsement is marked in the case as Ext. P23. On behalf of the prosecution this witness was cross-examined. In that cross-examination he stated that no order is seen to have been passed on Ext. The endorsement regarding the cancellation was made in the Register on 11-11-1982. That endorsement is marked in the case as Ext. P23. On behalf of the prosecution this witness was cross-examined. In that cross-examination he stated that no order is seen to have been passed on Ext. D1 and that the cancellation of the licence was effected in pursuance to Ext. D1. The question that is to be considered is whether the cancellation of the licence effected in pursuance to Ext.D1 came into force from the date of Ext. D1 or only from the date of entry in the Register maintained under the Act. If the cancellation is effective from the date of application, the petitioner in R. P. 210/1986 ceased to have any liability as the licensee of Dwaraka Restaurant after 11-4-1982. If the cancellation is effective from the date of endorsement in the register only then his liability should continue till 11-11-1982. 6. The evidence given by DW-1 and PW-5 unmistakably prove that the licence issued to the petitioner in R. P. 210 of 1986 was cancelled and the endorsement to that effect was made in the register on 11-11-1982. The endorsement is marked in the case as Ext. P23. It reads. "Cancelled the licence as per the request of the applicant dated 11-11-82." Nothing has been brought out in evidence to show that the licensee had to perform any function other than to put in application for cancellation for getting the licence cancelled. Nor has it been brought out in evidence that the licensing authority has to perform any duty prior to sanctioning the cancellation. From the evidence before me it appears that on the application of the licensee for cancelling the licence the Licensing Authority has to grant the prayer. He cannot refuse the prayer for cancellation. No further formality is also to be complied with prior to the cancellation. In such a situation the Licensing Authority could have cancelled the licence immediately on receipt of the application for the said purpose. If he is not passing an order cancelling the same immediately, then within a reasonable time he ought to have ordered the cancellation. In the instant case the application was filed on 11-4-1982. It was received in the Panchayat Office on 12-4-1982. If he is not passing an order cancelling the same immediately, then within a reasonable time he ought to have ordered the cancellation. In the instant case the application was filed on 11-4-1982. It was received in the Panchayat Office on 12-4-1982. The Manager of the Panchayat Office affixed his initial on 12-4-1982 after affixing the seal of the Panchayat in token of receipt of that application. This application ought to have been ordered within a reasonable time. No order has been passed within that time. The authorities slept over the matter. The endorsement regarding the cancellation of the licence was made in the Register on 11-11-1982. As no further action on the part of the petitioner or on the part of the licensing authority was contemplated for effecting the cancellation of the licence, the endorsement regarding the cancellation must relate back to the date of receipt of the application in the Panchayat Office, viz.. 12-4-1982. Consequently the petitioner in R.P. 210/1986 could not be considered to be the licensee of Dwaraka Restaurant on 10-5-1982, the date on which the Food Inspector purchased the sample from the petitioner in R.P. 211/1986. In this view the petitioner in R.P. 210/1986 cannot be made liable for any offence under the Act because he had severed his connection with the Dwaraka Restaurant long prior to the Food Inspector's visit. In view of this finding, the petitioner in R.P.210/1986 is to succeed and the conviction and sentence passed against him has to be set aside. Therefore, I do not think it necessary to deal with the second point urged by him regarding the sufficiency of notice under S.13(2) of the Act. 7. The contention raised by the petitioner in R.P. 211/1986 is that the Food Inspector had not complied with R.18 of the Prevention of Food Adulteration Rules. As per that Rule a copy of Form VII memorandum and specimen impression of the seal used to seal the packet should be sent in a sealed packet separately to the Public Analyst. The Food Inspector as PW-3 had stated that a copy of the memorandum and specimen impression of the seal used to seal the packet were sent separately by registered post. He did not state that they were sent in a sealed packet. Consequently the argument is that the Food Inspector violated the mandatory provision contained in R.18 of the P.F.A. Rules. He did not state that they were sent in a sealed packet. Consequently the argument is that the Food Inspector violated the mandatory provision contained in R.18 of the P.F.A. Rules. In support of this argument the learned Counsel relies on the decision of the Supreme Court in State of Maharashtra v. Rajkaran (1988 SCC (Cri) 47). According to the Counsel, Their Lordships held that R.18 is mandatory and the violation of that provision is fatal to the prosecution. In that case the appellate court found that the prosecution failed to establish that the documents referred to in R.18 had been separately sent. Since there was no document to prove the despatch of Form-VII memorandum and the specimen impression of the seal used to seal the packet separately to the Public Analyst, Their Lordships declined to interfere with the order of acquittal. The facts before me are entirely different. The Food Inspector as PW-3 gave evidence before court that a copy of Form VII memorandum and specimen impression of the seal used to seal the packet were separately sent to the Public Analyst by registered post. The postal receipt evidencing the said despatch has been marked as Ext.P18. So there is sufficient proof for the sending of a copy of memorandum in Form VII and specimen impression of the seal used to seal the packet separately to the Public Analyst. Therefore the decision referred to has no application to the facts before me. 8. According to the learned Counsel appearing for the petitioner in RP. 211/1986, the Food Inspector has not stated that Form VII memorandum and specimen impression of the seal used to seal the packet were sent in a sealed packet. The argument is that failure on the part of Food Inspector to state that the packet was sealed is detrimental to the prosecution and therefore the conviction entered by courts below should be interfered with. I find it difficult to accept this submission. The Food Inspector was discharging his official duties. It was in discharge of such a duty he sent the Form VII memorandum and specimen impression Of the seal used to seal the packet to the Public Analyst. Those official acts must be presumed to have been regularly performed in accordance with the provisions of law. The Food Inspector was discharging his official duties. It was in discharge of such a duty he sent the Form VII memorandum and specimen impression Of the seal used to seal the packet to the Public Analyst. Those official acts must be presumed to have been regularly performed in accordance with the provisions of law. Further the Food Inspector was not questioned by the petitioner in cross-examination regarding this alleged non-compliance with the provision contained in R.18 either. In these circumstances, I find no merit in the contention raised by the learned Counsel appearing for the petitioner in R.P.211/86. 9. In the result R.P.No.210/1986 is allowed and conviction and sentence passed against the petitioner therein are set aside. His bail bonds are cancelled. Crl.R.P.211/1986 is dismissed and the conviction and sentence passed against the petitioner therein are sustained. Dismissed.