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2000 DIGILAW 458 (KER)

Koyakutty v. Food Inspector

2000-08-28

N.KRISHNAN NAIR

body2000
Judgment :- N. Krishnan Nair, J. The petitioner herein was the 1st accused in S.T. No. 706 of 1989 on the file of the Judicial Magistrate of the 1st Class-1, Kollam. The petitioner and two others were charged with the offences punishable under Ss.2(ia)(m) and 7(i) read with S.16 (1)(a)(i) of the Prevention of Food Adulteration Act, hereinafter referred to as 'the Act'. After the trial, the learned Magistrate found the accused 2 and 3 not guilty of the offences alleged against them and acquitted them. The petitioner (1st accused) was found guilty and he was convicted under Ss.2(ia)(m) and 7(i) read with S.16(1)(a)(i) of the Act. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/-, in default or payment of fine to suffer imprisonment for a further period of three months. Against the order of conviction and sentence, the petitioner preferred Crl. Appeal No. 56 of 1992 before the Sessions Judge, Kollam. The Sessions Court, Kollam by its judgment dated 4th June, 1993, dismissed the appeal by confirming the order of con viction and sentence passed against the petitioner by the trial court. Hence this revision. 2. The prosecution case briefly is as follows: On 29.4.1987 at about 5.30 p.m. P.W. 1, the Food Inspector, inspected the provision shop of the petitioner at Perinad in Thrikkadavur Panchayat. After revealing his identity and service of Form VI notice the Food Inspector, P.W. 1, paid Rs. 12/- towards its price for which the petitioner issued Ext. P3 voucher. P.W.1 divided the oil into three equal samples. The sampling was done in accordance with the provisions of the Act and the Rules. One part of the sample was sent to the Public Analyst, Thiruvananthapuram, for analysis. The other two samples and Form VII memorandum, specimen impression of seal were forwarded to the District Food Inspector, Kollam. As per Ext. P11 report the Public Analyst reported that the sample of coconut oil analysed by him does not conform to the standards prescribed for the said article under the Prevention of Food Adulteration Rules. Thereupon the 1st respondent initiated proceedings against the petitioner before the trial court. As per Ext. P11 report the Public Analyst reported that the sample of coconut oil analysed by him does not conform to the standards prescribed for the said article under the Prevention of Food Adulteration Rules. Thereupon the 1st respondent initiated proceedings against the petitioner before the trial court. In obedience to the summons received from the trial court, the petitioner entered appearance and filed an application under S.20A of the Act praying that the 2nd and 3rd accused may be impleaded as additional accused, since the sample of coconut oil taken by the 1 st respondent was from a quantity purchased by the petitioner from the said accused persons. Accordingly accused 2 and 3 were impleaded. 3. When the particulars of the offence were read over to the accused, they pleaded not guilty. During the trial, P.Ws.1 to 5 were examined on the side of the prosecution and Exts. P1 to P17 were marked. The defence examined five witnesses as D.Ws.1 to 5 and marked Exts. Dl to D3. 4. The learned counsel for the petitioner strongly contended that the order of the court below is clearly illegal and cannot be sustained either in law or in facts. According to learned counsel, the Food Inspector has violated the mandatory provisions contained in R.14 of the Prevention of Food Adulteration Rules. He contended that there is no evidence in the case to show that the intermediary vessel used by the Food Inspector was made clean and dry as required by R.14 of the Rules. He further contended that the lower court has seriously erred in finding that the protection under S.19(2) of the Act is not available to the petitioner. 5. The first question that arises for consideration is whether there is violation of R.14 of the Prevention of Food Adulteration Rules in this case. The Rule requires the Food Inspector to take samples of food "in clean dry bottles or jars or in other suitable containers". In this case, admittedly the Food Inspector used an intermediary vessel for the purpose of purchasing the sample of coconut oil. There is absolutely no evidence in the case to show that the said vessel in which the Food Inspector took the sample was made clean and dry as required under R.14. In this case, admittedly the Food Inspector used an intermediary vessel for the purpose of purchasing the sample of coconut oil. There is absolutely no evidence in the case to show that the said vessel in which the Food Inspector took the sample was made clean and dry as required under R.14. Even P.W. 1, the Food Inspector, who took the sample was not prepared to swear before the court that the intermediary vessel was clean and dry. There is also nothing on record to indicate that before using the vessel the Food Inspector had cleaned and dried it. Merely because the intermediary vessel was in use in the provision shop it cannot be said that it was clean and dry. There is no reliable material on record to show that the intermediary vessel used by P.W.1 was being used only for the purpose of taking coconut oil. When a sample of food is taken in a container which was formerly used for containing another item of food there is possibility of both the items of food getting mixed. (See Jagdish v. State, 1981 FAJ 509). In this connection it is relevant to note the following observations in Sitaram Thirani v. State of Orissa (1977 Crl. L.J. 681): "The fact that the offence was serious and the consequences disasterous will not relieve the prosecution of proving its case beyond reasonable doubt." 6. In the decision reported in Varghese v. Food Inspector (1989 (2) KLT 672) it was held by this Court that as far as possible the Food Inspector should sample the article in hygienic conditions. According to the learned Sessions Judge, there is nothing in this case to show that the sample was not taken in hygienic conditions. According to me, there is nothing on record to show that the sample was taken in hygienic conditions. Since there is no material on record to show that the coconut oil was taken in a clean or dry intermediary vessel there is glaring violation of R.14 of the Prevention of Food Adulteration Rules. It is settled position that the provisions of R.14 are mandatory and violation thereof would vitiate the conviction. 7. The next question for consideration is whether the lower court was justified in denying the benefit of S.19(2) of the Act to the petitioner. It is settled position that the provisions of R.14 are mandatory and violation thereof would vitiate the conviction. 7. The next question for consideration is whether the lower court was justified in denying the benefit of S.19(2) of the Act to the petitioner. The 2nd accused was impleaded as the manufacturer of coconut oil and the 3rd accused was impleaded on the ground that she was the licensee of the shop from where the petitioner purchased the coconut oil. Ext. D2 bi 11 would show that the quantity of coconut oil found in the shop was purchased from the 2nd and 3rd accused. It is true that as per Ext. D2 bill the petitioner purchased 15 kilograms of coconut oil and he sold about 10 kilograms of oil before the sample was taken by the Food Inspector. Merely because the petitioner had sold a part of the coconut oil to some of his customers, it cannot be said that he failed to keep the article in the same state and condition as purchased from the manufacturer. In the decision reported in Food Inspector v. Shoukathali (1989 (1) KLT 323) it has been 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. In this connection it is advantageous to refer to the following observations of this Court in that case. "S.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 retailer won Id be permitted to avail the defence envisaged in S.19(2) only if he sells the food article in the same package or container without opening them." No doubt, the petitioner is bound to prove that he stored the coconut oil properly while that was in his possession and he sold it in the same state as he purchased it. The petitioner has asserted in his evidence that he stored the oil properly while it was in his possession and sold it in the same state as he purchased it. There is no reason to distrust his version. It is true that when the plea of protection under S.19(2) of the Act is taken by an accused, the burden is upon him to establish that plea. The burden of proof on the accused is, however, not heavy as that of prosecution in proving the accused guilty. On the consideration of the entire materials on record, I am of the opinion that in this case the petitioner is entitled to the protection under S.19(2) of the Act. For the reasons stated above, the conviction and sentence passed on the petitioner are set aside. This revision is thus allowed.