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1988 DIGILAW 383 (KER)

FOOD INSPECTOR v. PRABHAKARAN

1988-08-09

THOMAS

body1988
Judgment :- 1. Appellant is the Food Inspector who filed a complaint against the respondent for the offence of selling cow's milk which was adulterated. The trial court acquitted the respondent solely on the ground that delay of 42 days in filing the complaint (from receipt of the report of Public Analyst), has vitiated the prosecution. 2. The sample was taken from the respondent on 26-10-1983 and a cash voucher was issued by him for the price of 675 ml. of milk. On the same day, one of the parts of the sample was forwarded to the Public Analyst. The report of the Public Analyst shows that milk fat and milk solids-not-fat are deficient, vis-a-vis the standard prescribed for cow's milk. The Public Analyst further opined that the sample contained not less than twenty seven per cent of added water as calculated from the milk solid-not-fat content. Notice was issued by the Local (Health) Authority on 2-1-1984 as per S.13(2) of the Prevention of Food Adulteration Act (for short 'the Act') informing the respondent of his right to apply, within 10 days of receipt of the notice, to have one of the remaining parts of the sample analysed by the Central Food Laboratory. The complaint was filed on 2-1-1984. 3. Learned Magistrate found that the Food Inspector has completed the sampling process in accordance with the provisions of the Act. DW.1 was examined by the respondent to support his case that he had supplied cow's milk to a hotel early morning and kept the balance in a can near the counter since he was busy in connection with the marriage of his son. The suggestion of the defence is that Food Inspector has taken sample from the milk kept in the said can. The trail court did not accept the defence case. Testimony of DW.1 was not believed. No effort is made in this appeal by the learned counsel for the respondent to persuade me to place reliance on the defence evidence. Learned Magistrate has taken the view that Local (Health) Authority would have received the report of the Public Analyst at least by 19-11-1983. The aforesaid inference is reasonable from the materials. But the complaint was instituted only on 2-1-1984. Learned Magistrate has taken the view that Local (Health) Authority would have received the report of the Public Analyst at least by 19-11-1983. The aforesaid inference is reasonable from the materials. But the complaint was instituted only on 2-1-1984. The delay would be around forty two days and the learned Magistrate held that the delay has disabled the respondent from sending one of the remaining parts of the sample to the Central Food Laboratory. According to the Magistrate, if prosecution had been instituted immediately after receipt of the report, the respondent "could have availed of the lawful right of forwarding the sample to the Central Food Laboratory". 4. Learned counsel for the appellant contended that the lower court has erred in holding that the said delay has vitiated the prosecution. No time limit is fixed either in the Act or in the Rules for instituting prosecution, contended the counsel. He pointed out that the respondent did not apply for sending the other part of the sample to the Central Food Laboratory for analysis. Prejudice to the respondent can be inferred when Central Food Laboratory reports that the delay has interfered with the composition or constituents of the sample, argued the counsel. 5. There is no provision in the Act which prescribes a time limit for launching prosecution. S.13(2) enjoins on the Local (Health) Authority to forward a copy of the report of the result of the analysis to the person concerned in such a manner as may be prescribed informing such person that an application may be made to the court within 10 days from receipt of the copy of the report to have the other part of the sample analysed by the Central Food Laboratory. The obligation cast on the Local (Health) Authority would stand discharged when he forwards a copy of the report of the analysis to the person (or persons) concerned within a period of ten days after institution of the prosecution. In the absence of statutory inhibition, a prosecution cannot be held to be bad merely because of some delay in instituting the prosecution. Without any material to show that the sample has become unfit for analysis, no inference can be drawn that delay in instituting the complaint would have brought about changes in the composition or constituents of the food article. Without any material to show that the sample has become unfit for analysis, no inference can be drawn that delay in instituting the complaint would have brought about changes in the composition or constituents of the food article. Is there any consequence if there is some delay in instituting the prosecution after receipt of the report of the Public Analyst? In State of Kerala v. Chacko (1970 KLT. 458) a learned single judge of this court has said that since the normal rule being that formalin can preserve milk for a period of four months only, no purpose would be served by sending it to the Central Food Laboratory for analysis after such period. But the aforesaid observation was not approved by a Division Bench of this court in Gopalakrishna Kurup v. State of Kerala (1971 KLT. 16). The Bench cited an instance that the sample of milk treated with formalin in a particular case remained good without decomposition above ten months. It has been observed in the said decision that "there is no point in laying down a rule of thumb that in the case of a particular food article, a particular period is the time for sending the sample to the Central Food Laboratory and if the proceeding or prosecution is delayed beyond that period the accused must automatically be acquitted." No decision which takes a different view has been brought to my notice. Learned counsel for the appellant has brought my notice to certain observations made by this court in two different decisions. In Food Inspector v. Abdulla Hajee (1985 K.L.T. 781). Padmanabhan, J. has held that delay of a few days to comply with R.7 (3) cannot be described as fatally affecting the prosecution in the absence of allegation and proof of prejudice. The learned judge has observed: "The approach to R.7 (3) could only be prejudice-oriented and an accused who has not attempted to exercise his right under S.13 (2) cannot raise such a plea especially when there is nothing to show that he could not have exercised that right due to the sample having become unfit for analysis." The other decision is in Food Inspector v. Francis (1986 KLT. 852). 852). Sreedharan, J. has stated thus: "Any delay in sending the intimation under S.13(2) of the Act or R.9 A of the Rules will be fatal to the prosecution only if the said delay has caused prejudice to the accused 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." Those observations, no doubt, lend considerable support to the proposition that no prosecution can be held to be bad for the mere reason that delay occurred in the institution of the prosecution. Whether the delay has caused prejudice to the accused in the particular case is the question which the court has to consider in the case. If no prejudice is shown, the delay in filing the complaint is inconsequential. 6. In Municipal Corporation v. Kishun Swaroop (AIR 1965 M.P.180) a Division Bench has held that if there was undue delay in launching the prosecution, the accused is disabled from exercising the right under S.13(2) of the Act and hence the evidentiary value of the report of Public Analyst might be reduced. But the Supreme Court has held in Municipal Corporation v. Ghisa Ram (AIR 1967 SC. 970) that evidentiary value of the report of the Public Analyst will not be lost for the mere reason of delay in launching the prosecution. What is relevant in such a case is the consideration whether prejudice has been caused to the accused on account of such delay. Following the said Supreme Court decision the same learned judges who decided Kishun Swaroop's case (cited supra) has observed in State v. Thulsiram (A.I.R.1970 M.P.123) that "where, however, the analysis by the public Analyst is not inordinately delayed and the preservatives are added in the prescribed quantity the mere fact of some delay in launching the prosecution will not entitle the accused to claim an acquittal and the report of the public analyst can form the basis of conviction". Their Lordships have further observed as follows: "Thus, we are clearly of opinion that a conviction cannot be set aside or an accused cannot be acquitted on a hypothetical conjectural prejudice said to have been caused to an accused by the mere fact of some delay being caused in launching the prosecution". 7. Their Lordships have further observed as follows: "Thus, we are clearly of opinion that a conviction cannot be set aside or an accused cannot be acquitted on a hypothetical conjectural prejudice said to have been caused to an accused by the mere fact of some delay being caused in launching the prosecution". 7. The result of the aforesaid discussion is this: Lower court has gone wrong in holding that the prosecution was vitiated on account of delay in instituting the complaint. However, I am not inclined to convict the accused straightaway in this appeal for another reason. Ext. P12 report of the Public Analyst shows that the sample contains not less than twenty seven per cent of added water "as calculated from milk solids not-fat content". Apparently freezing point test had not been conducted by the Public Analyst. This court has consistently held that freezing point test or Hortvet's method is a reliable method for detecting the presence and extent of added water (vide Food Inspector v. Co-operative M. S. Society (1986 K. L. T. 174). The Division Bench of this court has stated in the said decision that presence and extent of added water detected on calculation of milk solids not fat content may not be acted upon to hold that contravention of R.44 (b) has been established beyond reasonable doubt. However, the Bench has observed: "But we see no reason why the data provided by the calculation method should not be looked into for the limited purpose of deciding whether the accused has proved that the fall in standards or deficiency of components was solely due to natural causes and beyond the control of human agency". 8. The respondent at the trial stage, very probably would not have adverted to the above aspect since he and the trial court were under the impression that the case would end in acquittal on account of delay in instituting the prosecution. Interest of justice demands that an opportunity must be given to the respondent to discharge the burden to prove that quality or purity of the milk in question has fallen below the prescribed standard due to natural causes and beyond control of human agency. For this purpose, the case has to be remanded to the trial court. I make it clear that no de novo trial is necessary in this case after remand. For this purpose, the case has to be remanded to the trial court. I make it clear that no de novo trial is necessary in this case after remand. But the trial court shall afford a reasonable opportunity to the accused to adduce evidence to discharge the burden. In the result, I allow this appeal and quash the order of acquittal and remand the case to the lower court for disposal of the case afresh subject to the observations and directions made above.