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1990 DIGILAW 142 (KER)

Food Inspector v. Madhavan

1990-03-19

BALAKRISHNAN

body1990
Judgment :- 1. This appeal, is preferred by the Food Inspector, Kozhikode Corporation challenging the acquittal of the accused in S.T.No.50 of 1984 on the file of the Chief Judicial Magistrate, Kozhikode. PW.1, the Food Inspector attached to Mobile Vigilance Squad, Kozhikode purchased 900 grams of tomato sauce from a canteen run by a Society in the premises of the Medical College, Calicut. PW 1 gave Form VI notice and 3 samples were taken from the tomato sauce purchased by PW1. The 1st accused was the then Manager of the Canteen. The 2nd accused was the Secretary and 3rd accused is Indian Coffee Workers' Co-operative Society Ltd. The 2nd and 3rd accused were acquitted by the trial court and the 1st accused was found guilty of offence punishable under S.16(1)(a)(i)(ii) of the Prevention of Food Adulteration Act, convicted thereunder and sentenced to undergo Simple Imprisonment for a period of 6 months and to pay a fine of Rs.1,000/- and in default, to undergo S.I. for a further period of 11/2months. The conviction and sentence were challenged by the 1st accused before the Sessions Court, Kozhikode Division. The learned Sessions judge allowed the criminal appeal and acquitted the accused holding that in Ext.P21 circular there was no proper authorisation and PW3, who filed the complaint in this case, was incompetent to launch prosecution against the accused. Even though several other contentions were urged by the appellant all those contentions were negatived by the learned Sessions Judge. 2. The learned counsel for the appellant contended that the finding of the learned Sessions Judge regarding Ext.P21 authorisation is erroneous and unsustainable. It is pointed out that PW3, the Food Inspector attached to the Calicut Corporation, was appointed as per Ext.P16 Notification and he was fully competent to file a complaint. The contention urged by the counsel for the appellant is correct. Ext.P16 has empowered PW3 as the Food Inspector of the Calicut Corporation for the purpose of Food Adulteration Act. Ext.P16 further shows that the appointment of PW3 has been made under S.20(1) of the P.F.A. Act. The genuineness of Ext. P16 is not challenged by the accused. Ext.P21 is a circular issued by the Director of Health Services. Ext.P16 has empowered PW3 as the Food Inspector of the Calicut Corporation for the purpose of Food Adulteration Act. Ext.P16 further shows that the appointment of PW3 has been made under S.20(1) of the P.F.A. Act. The genuineness of Ext. P16 is not challenged by the accused. Ext.P21 is a circular issued by the Director of Health Services. As per Ext.P21, it has been directed that the Food Inspector attached to Mobile Vigilance Squad will make available the necessary records, documents and other particulars and the Food Inspector of the Calicut Corporation will file the complaint and in accordance with Ext. P21, PW.3 filed the complaint in this case. The learned Sessions Judge was of the view that Ext.P21 was the basis of authority for PW3 to file the complaint and as it was issued by the Health Authority, he was incompetent to make such a complaint. The view taken by the learned Sessions Judge is erroneous. In this case, PW3, the Food Inspector was appointed as per Ext.P16 order and Ext.P21 circular only gave a direction to file the complaint. That is not an order passed under S.20(1) of the P.F.A. Act. In the instant case, there is nothing on record to show that PW3 was incompetent to file a complaint against the accused. The finding to the contrary by the Sessions Judge is incorrect. 3. The learned counsel for the respondent-accused urged several other contentions. It was pointed out that the sample was not stored for sale and the same was taken from the kitchen of the canteen while the same was under the process of manufacture. No such defence was set up by the accused at the time of trial. When the accused was questioned under S.313 Cr.P.C, it was not mentioned that the tomato sauce was not a fully manufactured food article. When PW1 gave evidence regarding the taking of sample, his evidence was not challenged in cross-examination. Merely because the article was taken from the kitchen of the canteen, it cannot be said that the article was not intended for sale. The learned counsel for the accused also contended that in the canteen, tomato sauce was not sold as a food item but it was being served only as a side-dish for cutlet and other food material. Merely because the article was taken from the kitchen of the canteen, it cannot be said that the article was not intended for sale. The learned counsel for the accused also contended that in the canteen, tomato sauce was not sold as a food item but it was being served only as a side-dish for cutlet and other food material. The fact that tomato sauce was not specifically charged or that no bill was prepared for it is of no consequence when it is proved that the same was served, sold or distributed to the customers. 4. The learned counsel for the accused raised yet another contention which I think will dissuade me from interfering with the acquittal entered by the Sessions Court. In the instant case, the Food article was purchased and sample was taken on 28-7-84. It was sent for, analysis and the report of the Analyst was received on 21-8-84. The Food Inspector sought information from the accused to know whether there was any nomination as contemplated under R.17 of the P.F.A. Act. No reply was sent by the 3rd accused Society. Again letters were addressed to the Cannur Municipality. Then the complainant received Ext.P15 letter on 20-9-84 and thereafter the complaint was filed on 23-11-84. Even though Ext.P15 was received as early as on 20-9-84, the complainant waited to launch prosecution and filed the same only after a period of 2 months. The accused received 13(2) intimation and the second sample was sent for analysis to the Central Food Laboratory at Mysore, and Ext.P20 certificate was received on 23-1-85. Ext.P20 certificate shows that the food article got fermented and putrefied odour was emanating from the packed bottle. Even though the sample was taken on 28-7-84, the second analysis was done after a period of more than 5 months. It is also pertinent to note that PW1 has no case that any preservative was added to tomato sauce at the time of taking sample. The absence of preservative and the long delay have definitely contributed to the purification and fermentation. Had the prosecution been launched at an early date, this delay could have been avoided. The delay in filing the complaint has prejudiced the accused and the complainant has no valid explanation to offer for the long delay. It is proved that the delay in launching prosecution has prejudiced the deceased in great measure. Had the prosecution been launched at an early date, this delay could have been avoided. The delay in filing the complaint has prejudiced the accused and the complainant has no valid explanation to offer for the long delay. It is proved that the delay in launching prosecution has prejudiced the deceased in great measure. Eventhough the accused was acquitted by the Sessions Judge on the wrong premises, for the forgoing reasons, I am not interfering with the acquittal and the Crl. Appeal is dismissed. Dismissed.