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Andhra High Court · body

2003 DIGILAW 864 (AP)

FOOD INSPECTOR, ADILABAD v. DESH RAJ

2003-07-11

K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THIS appeal is directed against the judgment dated 19-4-1999 in c. C. No. 130 of 1998 on the file of the Judicial i Class Magistrate, Adilabad. ( 2 ) THE Food Inspector, Adilabad filed a complaint before the Judicial First Class, magistrate, Adilabad alleging that on 31-12-1997 at about 5. 00 p. m. , the Food inspector division-1, Adilabad along with his attender went to the shop of the accused and found 20 liters of buffalo milk kept for sale. As the Food Inspector suspected the same to be adulterated, he purchased 750 ml of buffalo milk, after stirring the entire milk, by paying cash. Then the buffalo milk was taken into three dry clean and empty glass bottles and in each part 20 drops of formalene was added as a preservative. Bottles of samples were closed tightly with caps and sealed, and thereafter one sample bottle was sent to the Public Analyst. The analyst after analysis opined that the values obtained for fat and solid not fats were less than the prescribed limits, and therefore the sample was adulterated. After obtaining sanction from the Director, Institute of preventive Medicine and Food (Health) authority, Hyderabad, he lodged the complaint before the Judicial First Class magistrate, Adilabad. ( 3 ) WHEN the accused were examined under Section 251 Cr. P. C. for the allegations levelled against them for the offence under Sections 7 (i) and 2 (ia) (m) read with section 16 (1) (a) (i) of the Prevention of food Adulteration Act, 1954 (for short "the act") they denied the same. On behalf of the prosecution PWs. 1 to 3 were examined and Exs. P. l to P. 21 were marked. The lower Court, after hearing both sides, came to the conclusion that the Assistant Food controller Zone-V, Warangal, was present at the shop of the accused at the time of producing the sample but he was not cited as witness, and that PW. 1 was not a gazetted Food Inspector empowered to lift the samples in Adilabad Municipal area and that the formalene drops were added after dividing the samples into three parts and that the sample of milk was not stirred in clockwise and anticlockwise and accordingly acquitted the accused. Against the said acquittal, the Food Inspector preferred the present appeal. 1 was not a gazetted Food Inspector empowered to lift the samples in Adilabad Municipal area and that the formalene drops were added after dividing the samples into three parts and that the sample of milk was not stirred in clockwise and anticlockwise and accordingly acquitted the accused. Against the said acquittal, the Food Inspector preferred the present appeal. ( 4 ) THE learned Public Prosecutor contended that the Food Inspector stirred the sample of milk before taking the samples, and that non-examination of Assistant Food controller Zone-V, Warangal is not fatal to the case, inasmuch as the evidence of PW. 1 is very clear with regard to taking of sample, sealing them and sending the same to the public analyst, and that it makes no difference whether the formalene was added before or after taking the sample and therefore, the lower Court committed serious illegality in acquitting the accused. Hence, he prays the Court to set aside the order of acquittal. ( 5 ) ON the other hand, the learned Counsel appearing on behalf of the accused contended that the Food Inspector has not stirred the milk clockwise and anticlockwise before taking the sample so as to make the article of food homogeneous. When the stirring is not proper, then there is a possibility of fats, solid not fats remaining at the bottom of the sample, and therefore, the values obtained in respect of fats, solid not fats, were less than the prescribed limits as per the analyst report. It was the duty of the Food Inspector to add formalene before taking sample, so that there would not be any conflicting opinions and that the non-examination of Assistant Food controller is fatal to the case of the prosecution. Hence, he prays the Court to dismiss the appeal. ( 6 ) IT is not in dispute that the Food Inspector purchased 750 ml of buffalo milk at the shop of the accused at Adilabad. He divided the said milk into three parts, and after that he added formalene. One bottle of sample of milk was sent to the public analyst. The public analyst gave his opinion stating that the fats found is 0. 5% whereas it should be more than 5. 0%, with regard to the solids not fat, the values obtained were 6. 23% whereas it should be more than 9. 0%. One bottle of sample of milk was sent to the public analyst. The public analyst gave his opinion stating that the fats found is 0. 5% whereas it should be more than 5. 0%, with regard to the solids not fat, the values obtained were 6. 23% whereas it should be more than 9. 0%. Therefore, the sample was deficient in milk fat content by about 90. 0% and deficient in solids not fat content by 30. 0%, it was therefore, adulterated. Ex. P. 15 Analysis Report is not in dispute. ( 7 ) WITH regard to the contention that PW. 1 had no power to lift the sample in adilabad Town, he was appointed as Food inspector in the year 1991, and in the year 1995 he was transferred from Vijayanagaram to Hyderabad. Thereafter, PW. 1, the Food inspector was transferred to Adilabad. Therefore, he is a competent person to lift the samples. Exs. P. 3 and P. 4 coupled with the evidence of PW. 1 would clearly reveal that PW. 1 was the proper person, who was authorized to lift the samples. ( 8 ) SO far as the contention that the Assistant Food Inspector Zone-V, Warangal is not cited as a witness is concerned, incidentally he might have been present at the time of taking sample by PW. 1. That does not mean that he has to be examined. PW. l is the proper person to tell about taking of sample and the manner of sending the sample for analysis. If the evidence of pw. l is found to be untrustworthy, then only his evidence has to be corroborated with other evidence. Therefore, non-examination of Assistant Food Inspector zone-V, Warangal will not in any way, affect the case of the complainant. ( 9 ) THE other ground on which the learned Counsel for the accused raised is that the formalene drops were to be added to the entire sample, but the formalene drops were added after dividing the sample into three parts. Formalene is only a preservative for keeping the sample fit for analysis. Admittedly, the accused did not avail the right to get the sample analysed by the Director, Central Food Laboratory. Therefore, under these circumstances, adding of formalene after dividing the samples into three parts cannot by itself be a ground to doubt the case of the prosecution. Formalene is only a preservative for keeping the sample fit for analysis. Admittedly, the accused did not avail the right to get the sample analysed by the Director, Central Food Laboratory. Therefore, under these circumstances, adding of formalene after dividing the samples into three parts cannot by itself be a ground to doubt the case of the prosecution. The lower Court observed that there was nothing on record to show that the article of food was injurious to health and there was also no evidence to show that water was mixed in the milk. As per the Act, if the article of food is adulterated, then the question whether that article of food is injurious to health or not does not arise. As per Ex. P. 15, it is clear that the milk fat contents were deficient and therefore, the sample of milk was adulterated. So the reasoning of the lower Court is devoid of merit on this aspect. ( 10 ) COMING to the last aspect that there was no evidence to show that the food Inspector before taking the sample stirred the milk in clockwise and anticlockwise so as to make the article of food homogeneous, the learned Counsel for the respondents contended that because proper stirring was not done, there was possibility of fats and solid not fats remaining at the bottom of the article of food, and, therefore, on this ground, the accused is entitled for acquittal. In support of his contention, the learned Counsel relied upon a decision in Vasamsetty Satyanarayana v. State of A. P, 1998 (2) ALD (Crl) 895 (AP ). In that case it was wherein it is held that there was no evidence to show that the Food Inspector therein before taking sample stirred the milk clockwise and also anticlockwise. In this regard, the evidence of PW. 1 in this case is relevant. He simply stated that he stirred the milk after purchasing 750 ml buffalo milk but he did not state that he stirred the milk clockwise and anticlockwise so as to make the entire quantity homogeneous. He admitted that he used a glass stirring rod. The size of the glass rod, with which he stirred the milk is about one meter. He did not measure the height of the containers from the lifted the samples. Further PW1 admitted that he did not mention in Ex. He admitted that he used a glass stirring rod. The size of the glass rod, with which he stirred the milk is about one meter. He did not measure the height of the containers from the lifted the samples. Further PW1 admitted that he did not mention in Ex. P8, which is panchanama scribed at the time of lifting the sample that he stirred the milk before he took the sample. Therefore, the sample of milk which was sent to the public Analyst does not represent the correct article of food, which was purchased by the Food Inspector from the shop of the accused. So when the stirring was not done, there was a possibility that fats and solid not fats would remain at the bottom of the container, thereby giving less values in respect of fats and solid not fats. Hence, the lower Court acquitted the accused. In the facts and circumstances of the case, I found no grounds to interfere with the order impugned. ( 11 ) IN the result, the Appeal is dismissed. No costs.