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1998 DIGILAW 409 (KER)

Sreenivasa Shenoy v. Food Inspector

1998-08-26

D.SREEDEVI

body1998
Judgment :- D. Sreedevi, J. This revision petition is filed to quash the proceedings in C.C. No. 271 of 1997 before the Additional Chief Judicial Magistrate, Ernakulam. 2. The Food Inspector, Mobile Vigilance Squad, Kakkanad, Ernakulam District, who is the First respondent herein, purchased 750 grams of Toor Dal exhibited for sale from the shop of the revision petitioner-accused. He had divided the said article into three parts, one part was sent to the Public Analyst, Regional Analytical Laboratory, Ernakulam. The Public Analyst certified that the sample contained 7.6% by weight of Kesari Dal and hence the sample was adulterated. On the basis of the report, a complaint was filed by the Food Inspector under Ss.2(ia)(a)(h), 7(1) read with 16(1-A)(i) of the Prevention of Food Adulteration Act, hereinafter referred to as the P.P. A. Act. The complaint was taken into file by the Chief Judicial Magistrate, Ernakulam, as a summons case and numbered as S.T. No. 1177 of 1996. At the instance of the accused, the second part of the sample was sent to the Central Food Laboratory, Ghaziabad and obtained a report of analysis, which showed that the sample contained presence of synthetic coal-tar colour. As per the said certificate, Kesari Dal was absent. It was also certified that the sample was adulterated. 3. The prosecution examined three witnesses to support the prosecution case. After closing the evidence, the learned Magistrate framed a Court charge on the basis of the report of the Central Food Laboratory, for a new offence of added coal-tar dye and posted the case to 15.4.1997, for re cross-examination of the prosecution witnesses. Petitioner wants to set aside the said Court charge. 4. The learned counsel appearing for the petitioner, Mr. C.S. Dias, submitted that the framing of Court-charge on the basis of the second report for added coal-tar dye amounts to prosecution of the accused for a new offence entirely different from that contained in the complaint given by the Food Inspector, which is illegal on various grounds. It is sub mi tied that the second report of the Central Food Laboratory is brought down for the benefit of the accused for re-check of the first report. It is true that when the report of the Central Food Laboratory is received, it supersedes the report of the public analyst. It is sub mi tied that the second report of the Central Food Laboratory is brought down for the benefit of the accused for re-check of the first report. It is true that when the report of the Central Food Laboratory is received, it supersedes the report of the public analyst. It is submitted that when once it is revealed that the first report would not lie, the next alternative for the court below is to acquit the accused, as the case was started as a summons case. 5. The learned Public Prosecutor Shri Grashious Kuriakose submitted that on being convicted that the sample of food is adulterated on the ground of presence of synthetic coal-tar colour, the court can convert the summons case into a warrant case and frame new charges under S.259 of the Code of Criminal Procedure. 6. Under S.259 of the Code, of Criminal Procedure, the Court can convert a summons case into a warrant case, if it appears, in the interest of justice, to adopt a warrant trial. Therefore, the argument advanced by the Learned counsel for the petitioner, that the court went wrong in converting the summons case into a warrant case is not sustainable. The Public Anayst has reported that the sample contained 7.6% by weight kesari dhal and therefore it was adulterated. The Central Food Laboratory has examined the toor-dhal and reported that it is adulterated because of the added coal-tar dye. It is submitted that this addition of coal-tar-dye amounts to prosecution of the accused for a new offence different from that was contained in the complaint given by the Food Inspector. 7. The next argument advanced is that the Food Inspector has not obtained sanction under S.20oftheFood Adulteration Act. S.20 of the Act, prohibits launching of prosecution outside its scope. What it provides is that there would be no launching of prosecution, except by the authorities enumerated in the provision viz., the Central Government or the State Government, or a person authorised in this behalf by general or special-.order by the Central Government or the State Government. The Food Inspector after getting sanction from the local health authority has filed the complaint based on the report of the public analyst. The Food Inspector after getting sanction from the local health authority has filed the complaint based on the report of the public analyst. The learned counsel for the petitioner relied on the decision in Moolchand v. State of Madhya Pradesh, All India Prevention of Food Adulteration Journal (MP) 207, and submitted that no conviction can be passed on the basis of the inconsistent report of two experts on the same matter. Therefore, the conviction and sentence of the application cannot be sustained. In that case, the Madhya Pradesh High Court set aside the conviction. But I do not agree with that decision, because the first report has been superseded by the second report and hence the first report need not be looked into. It is submitted that unless a fresh sanction, is obtained the court cannot proceed with the case or frame charges. The learned counsel relied on the decision reported in M/s. S.M. Anwar & Co. v. State of West Bengal, All India Prevention of Food Adulteration Journal 592. It reads as follows: "Since however, the certificate of the Director of Central Food Laboratory discloses totally different kind of adulteration that what mentioned in the report of the Public Analyst and since the report of the Public Analyst has been totally overturned and negatives to the point of no offence by the certificate of the Director, Central Food Laboratory, I must hold that the prosecution cannot continue on a totally new fact about the nature of adulteration as indicated in the certificate of the Director without obtaining necessary consent from the appropriate authority. Accepting this decision, I have to hold that a fresh sanction is necessary to proceed further with the case. Therefore, I direct that the learned Magistrate, before proceeding further, will give the prosecution an opportunity to place the certificate of the Director of Central Food Laboratory before the appropriate authority for consideration and consent for continuance of the prosecution and in the event of no such consent of the appropriate authority is obtained and produced before the Magistrate within a reasonable time, not exceeding one month for the purpose, the learned Magistrate shall discharge the accused and drop the present proceedings. In the event of any such consent is obtained and produced by the prosecution, within the time allowed, the learned Magistrate may proceed with the disposal of the present proceedings in accordance with law. In the event of any such consent is obtained and produced by the prosecution, within the time allowed, the learned Magistrate may proceed with the disposal of the present proceedings in accordance with law. I do not find any ground to quash the charge annexure- c dated 10.3.1997 of the Court below.