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2002 DIGILAW 75 (MAD)

Sainudheen v. Food Inspector

2002-02-06

N.KRISHNAN NAIR

body2002
ORDER: These revisions are directed against the order of conviction and sentence passed by the Judicial First Class Magistrate, Attingal in S.T. No.50 of 1990 confirmed by the Sessions Judge, Trivandrum in Crl. Appeal No. 177 of 1992. The first accused in C.C. No.50 of 1990 is the petitioner in Crl.R.P. No.554 of 1994 while the second accused is the petitioner in Crl.R.P. No. 187 of 1994. The petitioners and another were charged with the offences punishable under Secs.2(ia)(a), (m), 7(1)(iii) read with Sec.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. After the trial, the learned Magistrate found the petitioners (first and second accused) guilty of the offences under Sec. 2(ia) read with Sec.16(1)(a)(i) of the Prevention of Food Adulteration Act and they were sentenced to undergo imprisonment for a period of six months each and also to pay a fine of Rs. 1,000 each in default to undergo simple imprisonment for a further period of one month each. The third accused in the case was found not guilty and he was acquitted. Against the order of conviction and sentence passed by the Magistrate, the petitioners preferred Crl.A. No. 177 of 1992 before the Sessions Judge, Thiruvananthapuram. The learned Sessions Judge, by the impugned judgment dismissed the appeal confirming the order of conviction and sentence passed by the Magistrate. Hence, these revisions. 2. The prosecution case is as follows: On 16.8.1990 at about 12 noon, P.W.1 the then Food Inspector, Trivandrum Circle inspected the provision shop bearing No. K.P.VII/418 of Kadinamkulam Panchayat. The first accused was. the sales man of the shop and the second accused was the licensee and owner of the shop. After revealing her identity and service of Form VI notice, P.W.1 purchased six packets of Corriander Powder each weighing 100 gms. The sampling was done in accordance with the provisions of the Prevention of Food Adulteration Act and Rules. One part of the sample was sent to the Public Analyst for analysis and other parts to the local authority. Since the label on the packets revealed that the third accused was the manufacturer of the said Corriander powder, P.W.1 sent Form No.VI notice to the third accused. The report of the Public Analyst stated that the sample did not conform to the standards prescribed for Corriander powder and hence it was adulterated. Accordingly, P.W.1 laid the complaint before the Magistrate. The report of the Public Analyst stated that the sample did not conform to the standards prescribed for Corriander powder and hence it was adulterated. Accordingly, P.W.1 laid the complaint before the Magistrate. At the instance of the third accursed, the second part of the sample was sent to the Central Food Laboratory and Ex.P-13 certificate was obtained. The Director of Central Food Laboratory certified that the second sample also did not conform to the standards prescribed for Corriander powder. 3. The accused denied the charge. Thereupon, the prosecution examined P.Ws.1 to 5 and marked Exs.P-1 to P-25. M.O.1 was also marked. 4. The learned counsel for the petitioners strongly contended that both the Courts below have seriously erred in finding that the petitioners are guilty of the offences. According to the learned counsel, once it became apparent to the Food Inspector that the adulterated Corriander powder was manufactured by M/s. Nambikkal Industries, Cheruvikkal, Trivandrum, the Food Inspector should have visited that concern, ascertained the manufacturer, taken samples from that concern and fixed the liability. He further contended that since the definite case of the prosecution is that adulterated Corriander powder was manufactured by M/s. Nambikkal Industries, Cheruvikkal, Trivandrum, the lower Court should have found that the petitioners are entitled to the benefit of Sec.19(2) of the Act. 5. As per Sec. 19(2) of the Act, an accused can raise a valid defence that, (i) he purchased the article of food from a duly licensed manufacturer, distributor or dealer, where a licence is prescribed for the sale thereof; (ii) he purchased the article of food from the manufacturer, distributor or dealer, with a written warranty in the prescribed form, in a case other than mentioned above, and (iii) the article of food in his possession was properly stored and he sold it in the same state as he purchased it. No doubt, when the plea under Sec. 19(2) is taken by an accused, the burden is upon him to establish that plea, but the burden of proof on the accused is not as heavy as that of the prosecution in providing the accused guilty. In this case, the definite case of the petitioners is that the adulterated Corriander powder was purchased from M/s.Nambikkal Industries. In this case, the definite case of the petitioners is that the adulterated Corriander powder was purchased from M/s.Nambikkal Industries. It appears that the Food Inspector was also convinced that the Corriander powder was manufactured by M/s.Nambikkal Industries as it could be gathered from the complaint itself. The label description given in Ex.P-4 mahazar is as follows: “Avani Corriander powder, Net wgt. 100 gms. Price Rs.2.20. Packed on Aug. 1990. Manufactured by Nambikkal Industries, Cheruvikkal, TVM 17”. It is gatherable from the evidence of P.W.1 that she purchased six packets of Corriander powder having the above label description. I see no reason to distrust the version of the petitioners that the Corriander powder was purchased from M/s.Nambikkal Industries, Trivandrum. The trial Court acquitted the third accused mainly on the ground that the prosecution could not prove that the third accused is connected with M/s. Nambikkal Industries. But, in this connection, it is relevant to note that it was at the instance of the third accused that the second sample was sent to the Central Food Laboratory for analysis. When the result of analysis was found to be against him, the third accused has thrown the entire blame on the first and second accused. If the third accused had no connection with Nambikkal Industries, he would not have taken steps to sent the sample to the Central Food Laboratory. P.W.1 has asserted in her evidence that she had sent the notice under Sec.11(1)(a) of the Prevention of Food Adulteration Act to the third accused. According to me, the version of the third accused that he did not receive the notice under Sec. 11(1)(a) could be accepted only with a pinch of salt. On a consideration of the entire facts and circumstances of this case, I find that Nambikkal Industries is the manufacturer of the Corriander Powder. It is gatherable from the evidence of the Food Inspector that she was fully convinced that Corriander powder purchased by her from the shop was manufactured by Nambikkal Industries. Therefore, as contended by the learned counsel for the petitioners, P.W.1 should have visited Nambikkal Industries, ascertained the manufacturer and fixed the liability. But, P.W.1 had to admit in her evidence that she did not go to Nambikkal Industries or conduct any further enquiry. Therefore, as contended by the learned counsel for the petitioners, P.W.1 should have visited Nambikkal Industries, ascertained the manufacturer and fixed the liability. But, P.W.1 had to admit in her evidence that she did not go to Nambikkal Industries or conduct any further enquiry. It appears that the benefit of Sec.19(2) of the Act was denied to the petitioners for the reason that P.W.1 did not collect materials to connect the third accused with Nambikkal Industries. According to me a valid defence available to an accused under the Prevention of Food Adulteration Act should not be denied to him simply because the Food Inspector does not perform his duties properly. In this connection, it is relevant to note the decision of the Madras High Court in Chidambara Rajan v. State, (1988) 2 F.A.C. 122. In that case, the Food Inspector visited the shop of the second accused who was running a grocery shop and purchased six packets of Rathna Tea shown to be manufactured by Murthy and Co., Tuticorin. The Food Inspector was fully convinced that the tea purchased by him was manufactured by Murthy and Co. But, he did not visit the Company and ascertain the manufacturer. The Court set aside the conviction and sentence passed on the second accused. According to me, the decision of the Madras High Court referred to above is applicable to the facts of this case also. In this connection, it is also relevant to note that the decision of the Supreme Court in P. Unnikrishnan v. Food Inspector, 1995 S.C.C. (Crl.) 823. In that case, the accused purchased the article from a representative of a firm which was 200 kilometres away. The evidence of the Food Inspector revealed that the firm was a bogus non-existing manufacturing firm. The Supreme Court held that the accused could not be expected to verify as to what the actual position was regarding the existence of a firm at a place which was 200 kms. away. 6. The learned Sessions Judge was not inclined to give the benefit of Sec. 19(2) of the Act to the petitioners mainly on the ground that though the third accused is shown as manufacturer of the Corriander powder, there is no warranty given by the manufacturer. away. 6. The learned Sessions Judge was not inclined to give the benefit of Sec. 19(2) of the Act to the petitioners mainly on the ground that though the third accused is shown as manufacturer of the Corriander powder, there is no warranty given by the manufacturer. No doubt, the actual vendor in order to get the benefit of Sec. 19 of the Act should prove that he purchased the article of food from a manufacturer with the warranty in a prescribed form and he sold the article in the same state as he purchased it. Sec. 14 of the Act makes it incumbent upon the manufacturer, distributor or dealer in any article of food to give a warranty in writing to the vendor about the nature and quality of the article of food. As per the proviso to Sec. 14, a bill or cash memorandum or invoice in respect of the sale given by the manufacturer would be deemed to be a warrant given by such manufacture. In this case, it is true that the petitioners have not produced the bills issued by Nambikkal Industries before the trial Court to show that the corriander powder sold to the Food Inspector was purchased from Nambikkal Industries. However, the petitioners produced two bills dated 7.5.1990 and 2.7.1990 issued by Nambikkal Industries in favour of the first accused before this Court and also moved an application to accept the bills in evidence. Taking into consideration the facts and circumstances of this case, I think for the ends of justice, the two bills produced by the petitioners before this Court should be accepted in evidence. I do so. The bills are marked as Exs.B-1 and B-2. Exs.B-1 and B-2 would show that the first accused in the case had purchased Corriander powder from Nambikkal Industries, Ex.B-1 and B-2 would be deemed to be a warranty given by the manufacturer so as to attract the proviso to Sec. 14 of the Act. Nobody has a case that the packets of Corriander powder were purchased from Nambikkal Industries. Therefore, in the facts of the case, it must be held that the petitioners have discharged the burden to the extent necessary under the provisions of the Act and Rules. 7. For the reasons stated above, I set aside the order of conviction and sentence passed against the revision petitioners. Therefore, in the facts of the case, it must be held that the petitioners have discharged the burden to the extent necessary under the provisions of the Act and Rules. 7. For the reasons stated above, I set aside the order of conviction and sentence passed against the revision petitioners. They are found not guilty of the offences and they are acquitted.