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2002 DIGILAW 407 (KER)

Food Inspector v. Subair

2002-06-27

N.KRISHNAN NAIR

body2002
JUDGMENT N. Krishnan Nair, J. 1. This appeal is directed against the order of acquittal passed by the Chief Judicial Magistrate, Ernakulam in S.T.No.76/94. The case arose on a complaint filed by the Food Inspector, Corporation of Kochi, against the respondents, alleging the commission of the offences punishable under S.2 (1a) (m), 7 (1) read with S.16 (1) (a) of the provisions of Food Adulteration Act with R.44 (b) and appendix A.11.01.01 of the Prevention of Food Adulteration Rules, 1955. After the trial, the learned Magistrate found the respondents not guilty of the offences and acquitted them. The order of acquittal is seriously challenged in this appeal. 2. The substance of the allegations in the complaint filed by the Food Inspector is as follows: The 1st respondent is the proprietor of the Hotel Jafna in door No.39/1212 within the limits of the Corporation of Kochi, while the 2nd respondent is the Manager of the hotel. On 28-1-1994 at 9.am. The Food Inspector visited the hotel and after serving Form VI notice purchased 750 M.L. curd out of 10 litres kept in an aluminium vessel for sale. Sampling was done as per the provisions of the P.P. Act and Rules and one part of the sample sent to the Public Analyst was found to be adulterated on analysis. The Public Analyst reported that the sample did not conform the standards prescribed for curd under the P.F.Act and Rules, 1955, and is, therefore, adulterated. The evidence in this case consists of the depositions of P.Ws. 1 to 4 and Exts. P1 to P7 arid the deposition of D.W.1 and Exts. D1 to D6. On a consideration of the evidence brought on record, the learned Chief Judicial Magistrate found that the respondents are not guilty of the offences and accordingly acquitted them under S.255 (1) of the Code of Criminal Procedure. 3. The learned counsel for the appellant strongly contended that the lower court went wrong in finding that the Food Inspector had not stirred the container before taking the sample. He further contended that the lower court should have found that the decisions reported in K. Harikumar v. Food Inspector, Punaloor Municipality (1995 SCC (Crl) 933 and Raj Pal v. The State of Punjab (1984 FAJ 387) are not applicable to the facts of this case. He further contended that the lower court should have found that the decisions reported in K. Harikumar v. Food Inspector, Punaloor Municipality (1995 SCC (Crl) 933 and Raj Pal v. The State of Punjab (1984 FAJ 387) are not applicable to the facts of this case. According to him, the lower court has not properly scanned or weighed the evidence in the case. On the other hand the learned counsel for the respondents supported the order of the court below and urged that there is no ground for interference. 4. P.W.2, the Food Inspector has not stated in chief examination that he has stirred or churned the curd; but he changed his version in cross examination and stated that he stirred the contents in the container before taking sample with a glass rod. But even in cross examination he has not stated that he has stirred and churned the curd before taking the sample. In K.Harikumar V. Food Inspector, Punaloor Municipality (1995 SCC Crl.933) the Supreme Court has held that before taking sample in order to attain homogeneity in curds, stiring and churning, as the case may be, becomes necessary for the ingredients of milk solid not fat and milk solid fat getting a uniform consistency in order to determine the percentage of their completeness. In this connection it is also relevant to note the following observation of the Punjab and Hariyana High Court in Raj Pal v. The state of Punjab (1984 FAJ 387): "It is a matter of common knowledge that cream accumulates on the top of curd and if the curd is not properly stirred when the sample is taken, it is bound to be deficient in essential ingredients". In this case also there is nothing on record to indicate that the process of churning has been adopted. Therefore, it has to be held that serious prejudice has been caused to the accused. There is also considerable force in the contention of the respondents that there is violation of the mandatory provision of S.10 (7) of the Act. The Food Inspector did not say that he called any independent person to witness the action taken by him. In this case it is true that P.W. 4 was present at the time when the Food Inspector visited the hotel and took the sample. The Food Inspector did not say that he called any independent person to witness the action taken by him. In this case it is true that P.W. 4 was present at the time when the Food Inspector visited the hotel and took the sample. Admittedly P.W. 4 is an employee of the hotel where from the Food Inspector purchased the curd. Therefore, he cannot be said to be an independent witness. The Supreme Court in Ram Labhaya v. Municipal Corporation of Delhi and Another (A.I.R. 1974 S.C. 481) observed as follows: "The Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the said sub-section, as provisions of S.10 (7) are mandatory" The decision referred to above is an authority for the position that S.10 (7) is mandatory. In this case the Food Inspector has no case that he called any independent witness or that any witness had declined to affix signature. Therefore it has to be held that there is non-compliance of S.10 (7) of the Act. For the reasons stated above, I see no infirmity the order of acquittal passed by the learned Chief Judicial Magistrate. This appeal is groundless and is liable to be dismissed. In the result, the appeal is dismissed.