RAJAN v. FOOD INSPECTOR — 1988 DIGILAW 290 (KER)

Judgment :- 1. Petitioner is the first accused in S.T. 16/1983 on the file of the Chief Judicial Magistrate's court, Tellicherry. He, along with another, was prosecuted for offence u/S. 2 (ia) (m) read with S.7 (i) and S.16 (1) (a) (i) of the Prevention of Food Adulteration Act, hereinafter referred to as 'the Act'. The petitioner was the salesman and his co-accused was described as the owner of the grocery shop. After trial the Chief Judicial Magistrate found the petitioner guilty of the offence and convicted him thereunder. He was thereupon sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1000/-. In default of payment of fine be was directed to suffer simple imprisonment for two months more. The 2nd accused was acquitted. The said conviction and sentence were challenged before the lower appellate court in criminal Appeal No. 137/1987. The Learned Sessions Judge dismissed the appeal. Hence this Revision Petition. 2. The prosecution version of the incident is as follows. Pw. 5 is the Food Inspector. He visited the grocery shop, where the petitioner was the salesman, on 10-6-1983. From the chilli powder kept in the shop be purchased 600 gms after revealing his identity, for the purpose of analysis. That quantity was sampled in accordance with the Act and Rules. One sample was sent to the Public Analyst. The remaining two samples were sent to the Local (Health) Authority as per the Rules. On analysis that sample was found adulterated. Thereupon the prosecution was launched. Notice u/s 13(2) of the Act was scot to the accused. 3. To bring home the guilt of the accused pws. I to 5 were examined and Exts. P1 to P.25 were marked. Pw.1 is the peon attached to the office of the Food Inspector. pw. 2 is the independent witness who was called by the Food Inspector at the time of the purchase of the article and sampling. He turned hostile to the prosecution, pw. 3 is the Local (Health) Authority. Pw. 4 is the Executive Officer of the Panchayat and Pw. 5 is the Circle Food Inspector. At the instance of the petitioner one sample was sent to the Central Food Laboratory, Mysore for analysis. The certificate issued by the Director of Central Food Laboratory is marked as Ext. P11. 3 is the Local (Health) Authority. Pw. 4 is the Executive Officer of the Panchayat and Pw. 5 is the Circle Food Inspector. At the instance of the petitioner one sample was sent to the Central Food Laboratory, Mysore for analysis. The certificate issued by the Director of Central Food Laboratory is marked as Ext. P11. The opinion given by the Director is: "The sample does not conform to the standards laid down for chillie powder under the provisions of PFA Act 1954 and Rules thereof, in that: (a) Total ash content exceeds the maximum specified limit of 8.0% by weight." 4. The learned counsel appearing for the petitioner raised two points for consideration. The first one is that the Food Inspector violated the provisions contained in S.10(7) of the Act in so far as he did not call one or more independent persons to be present at the time when the sampling was done. The second ground urged by the learned counsel is that chilli powder is primary food as defined in S.2(xii-a) of the Act and so the first proviso to S.16(1) applies and the petitioner is entitled to get the benefit of the lesser sentence prescribed therein. I shall proceed to deal with these contentions. 5. Pws.1 and 2 are the witnesses to exhibit P1 mahazar prepared by the Food Inspector when he sampled the article of food purchased from the petitioner. Pw.1 is the peon attached to the office of the Food Inspector. Therefore it is argued that he is not an independent witness. It is the further case of the petitioner that on an earlier occasion the Food Inspector purchased milk for the purpose of analysis from Pw. 2. On account of that Pw. 2 is subservient to the dictates of the Food Inspector. According to counsel, pw. 2 must be taken as a person at the beck and call of the Food Inspector. It is further submitted that Pws.1 and 2 stated before court that excluding them there were many others present at the time of the sampling. So the Food Inspector should have called one from among them for complying with the provisions of S.10(7) of the Act. It is further submitted that Pws.1 and 2 stated before court that excluding them there were many others present at the time of the sampling. So the Food Inspector should have called one from among them for complying with the provisions of S.10(7) of the Act. Since he failed to call such an independent person from among those present, the Food Inspector must be taken to have violated the mandatory provisions contained in S.10(7) of the Act and so the conviction entered by the courts below should be quashed. 6. In Ram Labhaya v. Delhi Municipality (AIR (1974 SC 789) the Supreme Court observed: "The obligation which S.10(7) casts on the Food Inspector is to call one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of Gujarat (AIR 1971 SC 1277) it was held by this court after noticing that S.10(7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice his evidence, alone, if believed, can sustain the convictions." In the instant case the argument advanced by the petitioner regarding the non-compliance with the provisions contained in S.10(7) is on the basis that Pws.1 and 2 are not independent witnesses. Pw.1 is a peon attached to the office of the Food Inspector. The peon attached to the office of the Food Inspector will not be independent of the influence of the Food Inspector. In that sense Pw.1 cannot be described as an independent witness. In the case of Pw. 2, it is argued that on an earlier occasion the Food Inspector had purchased milk from this witness and therefore he is at the mercy of the Food Inspector. This argument is based solely on the statement made by pw. 2 in his cross-examination. According to him, the Food Inspector had taken sample from him on 1-6-1983 from the shop of one Paulose. This statement made by Pw. 2, the hostile witness, has been challenged in cross-examination.. pw. This argument is based solely on the statement made by pw. 2 in his cross-examination. According to him, the Food Inspector had taken sample from him on 1-6-1983 from the shop of one Paulose. This statement made by Pw. 2, the hostile witness, has been challenged in cross-examination.. pw. 2 has not stated that the said milk was found adulterated and that he was prosecuted under the Act. No other material was produced to substantiate, his statement either. The Food Inspector as Pw. 5 categorically stated that pw. 2 was not known to him and that be was an absolute stranger. He further stated that at no point of time he purchased any milk from pw. 2 for the purpose of analysis. In the nature of the evidence let in by the parties, I am not in a position to accept the statement given by pw 2, the hostile witness, in the cross examination that the Food Inspector had purchased milk from him for the put pose of analysis. Further the Food Inspector has stated that at the time of sampling one another person alone was present in the shop and that he refused to figure as an attestor to the mahazar when he was requested to sign the same. Since he refused, his address was not noted either. From the above evidence, according to me, the story that pw. 5 had purchased milk from Pw. 2 for the purpose of analysis is false. That statement is a wild allegation made by pw. 2, the hostile witness, in an attempt to help the petitioner. No value is to be attached to that statement of Pw. 2. Evidence of Pw. 5 shows that the other person present in the shop was called by him for attesting the mahazar and he refused to figure as an attestor. In these circumstances, I have no hesitation in holding that the Food Inspector strictly complied with the provisions contained in S.10 (7) of the Act. The first ground urged by the learned Counsel is devoid of any substance 7. Primary food has been defined in the Act in S.2 (xii-a) of the Act. It reads: "Primary food means any article of food, being a produce of agriculture or horticulture in its natural form." It cannot be disputed that chilli is a product of agriculture. The first ground urged by the learned Counsel is devoid of any substance 7. Primary food has been defined in the Act in S.2 (xii-a) of the Act. It reads: "Primary food means any article of food, being a produce of agriculture or horticulture in its natural form." It cannot be disputed that chilli is a product of agriculture. If it continues in its "natural form" then it is primary food. The question before me is whether chilli retains its natural form when it is converted into chilli powder. The learned Counsel appearing for the petitioner argues that chilli retains its natural form even when it is made powder. In support of this argument he brought to my notice the decision in State of Kerala v. Thankappan (1982 KLT. 343). In that decision the question dealt with was whether Vadapparippu and Thuvarapparippu are primary foods. Dealing with that aspect this court observed: "Even if the covering of the seed have been removed, or the seed even splitted up, the pulses will not loose their character of primary food in its natural form. There has been no mechanical process involved in processing them They continue to be in their natural form. The only thing is that the covering had been removed. The shape and arrangement as it existed within the outer covering are still retained." This court further took the view that if the seed without its outer cover is food as defined and if it is a product of agriculture and if it still retains its natural form which it had within the covering, which had been removed, it is primary food. These observations made with reference to Vadapparippu and Thuvarapparippu, according to counsel, must apply to chilli even after it is powdered. It is the further argument of learned Counsel that no mechanical process is involved in converting chilli into chilli powder. Chilli powder can be made in the house with the help of stone grinders. By that process the outer skin and seeds inside are crushed. Hence it is submitted that chilli retains its natural form. I find it difficult to persuade myself to agree with this argument. The removal of the outer cover of pulses or grain cannot make their kernels a different product. It will retain its natural form. This is not the case with chilli powder. Hence it is submitted that chilli retains its natural form. I find it difficult to persuade myself to agree with this argument. The removal of the outer cover of pulses or grain cannot make their kernels a different product. It will retain its natural form. This is not the case with chilli powder. Even when chilli is powdered in the house by using stone grinders it undergoes a. mechanical process. Thus a manufacturing process is resorted to for making chilli powder. In Ambika Provision Stores v. State of Kerala (1987 (2) KLT 99) a Division Bench had to consider whether chilli powder and coriander powder are subject to tax when both chilli and coriander have suffered tax. It was contended before the Division Bench that both chilli and coriander have suffered tax and when these commodities were turned into chilli powder and coriander powder they do not loose their identity and do not become commercially different commodities justifying a fresh imposition of tax. This court took the view that the powder of such commodities does not possess the same identity. The processing of the original commodities brings into existence a commercially distinct and different commodity. After referring to many decisions of the Supreme Court and of the Full Bench of this Court the Bench observed: "We are of the view that chilli powder and coriander powder are distinct and different from chilli and coriander, both in common parlance and in commercial circles.'. This court has thus stated the law that chilli powder is distinct and different from chilli. Chilli alone is in the natural form. Chilli powder which is distinct from chilli can thus never be considered a product of agriculture in its natural form. The learned Counsel appearing for the petitioner argued that this decision is not to apply to the cases coming under the P.F.A. Act and its application must be limited to Sales Tax Act. T find no merit in this argument. If chilli powder is distinct and different from chilli for the purpose of taxation, in common parlance and in commercial circles, it cannot be otherwise for the purposes of proceedings under the P.F.A. Act. Thus chilli powder is not primary food. Consequently the petitioner is not entitled to the benefits of the first proviso to to S.16(1). 8. I was taken through the entire evidence, oral and documentary in the case. Thus chilli powder is not primary food. Consequently the petitioner is not entitled to the benefits of the first proviso to to S.16(1). 8. I was taken through the entire evidence, oral and documentary in the case. I find no ground to upset the conclusions arrived at by the courts below, No procedural defect in sampling the article is brought out. It therefore follows that the conviction entered against the petitioner does not call for any interference. The sentence imposed against the petitioner is the minimum that is prescribed by the statute. That also does not call for any interference. The result, therefore is, the Revision Petition fails. It is accordingly dismissed.