Food Inspector v. Sahoukathali — 1988 DIGILAW 33 (MAD)

JUDGMENT: A retail dealer in food articles was prosecuted by the appellant-Food Inspector for the offence under Sec.l6(l-A) (a)(i) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’). The wholesale dealer from whom the retailer purchased the food article was also arraigned as an accused in the trial Court. The Magistrate acquitted both of them. But this appeal, filed by the said Food Inspector, only challenges the acquittal of the retail dealer. He will be referred to as the accused hereinafter. 2. The appellant visited the shop of the accused on 24.1.1986 and purchased 600 grams of coriander, and notice was given to the accused in writing then and there of his intention to have the article analysed. The sample, when analysed by the Public Analyst, was found to be adulterated since the extraneous matter and insect damaged matter in the food article had exceeded the permitted limits. There is no dispute that the Food Inspector had purchased the food article from the accused or that the Food Inspector has committed and irregularity in sampling. The defence was two fold. The first is that since he purchased the food article from a licensed wholesale dealer under a written warranty and the accused sold it in the same state as he purchased it he is not liable to be convicted. The second is that since coriander is a primary food the insect damaged matter therein increased due to natural causes beyond the control of human agency. Learned Magistrate rejected the first contention, but upheld the second contention for which he relied on the decision of the Full Bench of this Court reported in Food Inspector v. Prabhakaran Food Inspector v. Prabhakaran 1982 K.L.T. 809 (F.B.). The first contention was rejected on the ground that the accused had opened the gunny bag and kept the food article in open and hence the food article was not sold in the same state as he purchased it. He acquitted both the accused in the light of his finding regarding the second contention. 3. Learned Public Prosecutor, has rightly contended that the trial Magistrate went wrong in relying on the Full, Bench decision cited supra because a larger Full Bench has since overruled the said decision. (Vide Mathukutty v. State of Kerala Mathukutty v. State of Kerala (1987)2 K.L.T. 867 ). 3. Learned Public Prosecutor, has rightly contended that the trial Magistrate went wrong in relying on the Full, Bench decision cited supra because a larger Full Bench has since overruled the said decision. (Vide Mathukutty v. State of Kerala Mathukutty v. State of Kerala (1987)2 K.L.T. 867 ). The sample in this case was taken by the Food Inspector on 24.1.1986. The report of the Public Analyst (Ext.P12) shows that it was analysed on 17.2.1986. The Public Analyst reported that the sample contains 11.5 per cent of extraneous matter by weight and 10.7 per cent of insect damaged matter by weight. Item No.A.05.08 in Appendix-B of the Rules under the Act, prescribes that the proportion of extraneous matter in coriander shall not exceed 8.O per cent by weight and the amount of insect damaged matter shall not exceed 5 per cent by weight. If one has to go by the result of the analysis as evidenced by Ext.P12, it has to be held that the sample is adulterated. The Larger Bench in (1987)2 K.L.T. 867 , which overruled the earlier Full Bench decision in 1982 K.L.T. 809, has held that the time lag between the date of sampling and the date of analysis by itself would be of no consequence for determining whether an article of food is adulterated as it contains insect damaged matter in excess of the prescribed limit The Larger Bench has observed thus: “There should be sufficient materials in evidence from which it can be reasonably inferred that the sample at the time of sale could not have been insect infested or could not have contained insect damaged matter in excess of the permitted limit and in the absence of such materials the report of the Public Analyst or the certificate of the Director of Central Food Laboratory, as the case may be, shall be taken as indicative of the quality and standard of the article of food at the time of sampling”. There is no material in this case to show that the increase of the insect damaged matter beyond the permitted limit was the consequence of the time lag between the date of sampling and the date of analysis. Hence the reasoning adopted by the learned Magistrate for acquitting the accused cannot be sustained. 4. There is no material in this case to show that the increase of the insect damaged matter beyond the permitted limit was the consequence of the time lag between the date of sampling and the date of analysis. Hence the reasoning adopted by the learned Magistrate for acquitting the accused cannot be sustained. 4. Learned counsel contended that the order of acquittal can be sustained on the other ground which the trial Court had repelled. The defence under Sec.19(2) of the Act is sought to be relied on. It was admitted by the Food Inspector, as P.W.1 that the accused had purchased the article of food from a wholesale dealer as per Ext.Dl cash bill dated 10-12-1985. The said cash bill was produced by the accused at the time of sampling and hence the wholesale dealer was also impleaded as one of the accused in the complaint. The Food Inspector has further admitted that the aforesaid dealer is a licensed wholesale dealer. The salesman attached to the shop of the accused was examined to prove that the article was properly stored and was sold in the same state as he purchased it. But the learned Magistrate did not accept the aforesaid defence as he could not hold that the article sold by the accused to the Food Inspector “was kept as such”. His reasoning is that even on the admission of the vendor (accused) the gunny bag in which the food article was purchased by the vendor from his dealer was opened by him and was hence subjected to air and moisture. The correctness of the said finding has been assailed by the learned counsel. 5. Sec.19(2) of the Act says that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article of food from a duly licensed manufacturer, distributor or dealer with a written warranty in the prescribed form and “that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it”. There is no finding that the article was not properly stored. The evidence of D.W.1 shows that the coriander was properly stored. That aspect was not challenged in cross-examination. There is no finding that the article was not properly stored. The evidence of D.W.1 shows that the coriander was properly stored. That aspect was not challenged in cross-examination. But the question is whether by opening its package the “state” of the food article would be disturbed or changed. Sec. 19(2) is primarily intended to give protection to the retail dealers. If a retailer is not permitted to sell the article in retail after he purchases it from a wholesale dealer it would affect the trading system of retail business. One of the usual modes of retail business is to buy articles in bulk and sell them in smaller quantities. The legislature would never have intended that the readier would be permitted to avail the defence envisaged in Sec.19(2) only if he sells the food article in the same package or container without opening them. Of course, the provision insists on proper storage of the food article. But the state of a food article would not normally undergo transformation merely by disinterring it from its package or container. The expression “same state as he purchased it” is to be understood in a pragmatic sense that the retailer should not interfere with the size, form, quality or standard of the article of food subsequent to his purchase and before his selling it to others. If he converts the food article into a different form such as powdering it or splitting it or adding colour to it etc., the state of the food article can be said to be different. It may be that some articles would undergo changes when they are taken out of the container. It depends upon the type of articles because of their special characteristics. There cannot be a hard and fast rule that every article is liable to change its state when it is disinterred from its container. Coriander is certainly not that type of article which undergoes transformation through disinterment from its package. No cereals or other edible grains would lose its state, in normal conditions, by its exposure from the packages. In this context it is advantageous to refer to the decision of the Supreme Court in A.P.G. & S.M. Association v. Union of India A.P.G. & S.M. Association v. Union of India A.I.R. 1971 S.C. 2346. No cereals or other edible grains would lose its state, in normal conditions, by its exposure from the packages. In this context it is advantageous to refer to the decision of the Supreme Court in A.P.G. & S.M. Association v. Union of India A.P.G. & S.M. Association v. Union of India A.I.R. 1971 S.C. 2346. In that case the vires of Sec.19(2) of the Act was challenged by some traders in food grains as violative of Arts. 14 and 19(1)(g) of the Constitution. One of the contentions raised before the Supreme Court was that the defence under Sec.19(2) of the Act would not be available if a trader happens to open the container and sell the article in retail. It has been pointed out by the Supreme Court that Clause (b) of Sub-sec.(2) of Sec.19 does not provide, nor does it imply, that if the container of a branded article is opened, the food article would cease to be in the same state in which the vendor purchased it. “If the article of food is sold in the same condition in which it was purchased from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of Sub-sec.(2) of Sec.19 merely because he opened the container”. It can thus be held that the state of a food article does not become different merely because the food article was taken out of the container in which it was sold by the manufacturer or dealer. Hence, the reasoning of the trial Magistrate on this score cannot be supported in law. 6. Though for different reasons, I confirm the order of acquittal and dismiss the appeal. B.S. ----- Appeal dismissed.