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2004 DIGILAW 1295 (AP)

Food Inspector v. Poosarla Sreeramamurty

2004-11-04

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( 1 ) THE Food Inspector, Bobbili Municipality had preferred the present Criminal Appeal as against the order of acquittal recorded in Criminal Appeal No. 35 of 1997 on the file of Additional Sessions Judge, Vizianagaram reversing the judgment made in C. C. No. 11 of 1993 on the file of Additional Judicial First Class Magistrate, Bobbili. ( 2 ) LEARNED Additional Public Prosecutor had taken this Court through the findings recorded by the appellate Court and would submit that the main ground on which acquittal had been recorded is that the procedure under Rule 17 and 18 of the Prevention of Food Adulteration Rules, 1955 had not been followed and this procedure is only directory and hence, the same cannot be sustained. ( 3 ) PER contra, the learned counsel for the respondent/accused Sri C. Praveen Kumar would contend that this Court had taken a view that Rule 18 is mandatory and non-compliance there of would vitiate prosecution as held in Food and Sanitary Inspector, Giddalur v. K. Subbaratnam (1983 Crl. L. J. 1801 ). Heard both the counsel. The conviction recorded and sentence imposed on 04. 04. 1997 in C. C. No. 11 of 1993 on the file of Additional Judicial First Class Magistrate, Bobbili were set aside in Criminal Appeal No. 35 of 1997 on the file of Additional Sessions Judge, Vizianagaram on 23. 11. 1998. ( 4 ) THE Food Inspector, Bobbili Municipality filed charge sheet against the respondent/accused under Sections 16 (1-A) (i), 7 (v) and 2 (1-a) (j) of Prevention of Food Adulteration Act, 1954 (hereinafter for short referred to as the Act for the purpose of convenience) and Rules 23, 28, 29 and item A-1806 of Appendix-B of the Prevention of Food Adulteration Rules, 1955 (hereinafter for short referred to as the Rules for the purpose of convenience) alleging that accused is running a Kirana shop at door No. 32-123, Vantharam Road, Bobbili. The case of the prosecution in belief is as follows: ( 5 ) ON 23. 05. 1992 at about 10. 45 am, the Food Inspector D. Gopala Krishna and the Public Health Masthri B. V. Ramana, inspected the said Kirana shop of the accused and purchased 750 grams of Bengal gram dhall for analysis and have been paid its costs of Rs. 7. 50 ps to the accused and obtained cash receipt from him. 05. 1992 at about 10. 45 am, the Food Inspector D. Gopala Krishna and the Public Health Masthri B. V. Ramana, inspected the said Kirana shop of the accused and purchased 750 grams of Bengal gram dhall for analysis and have been paid its costs of Rs. 7. 50 ps to the accused and obtained cash receipt from him. The Food Inspector suspected the Bengal gram dhall so purchased in the presence of accused and mediator and as per the procedure prescribed, he obtained the samples. The Food Inspector served Form VI notice on the accused and drafted mediators report then and there in the presence of accused and mediator and obtained the signatures of the accused and mediators on it. Thereafter, the Food Inspector sent one of the three sample bottles along with Form VII notice to the Public Analyst by registered post/parcel for analysis. He also sent a specimen impression of seal separately along with the copy of memorandum by registered post. The remaining two parts of the samples along with Form VII memorandum was handed over to the Local Health Authority, for safe custody. The Public Analyst vide report No. 408/92, dated 01. 07. 1992. The Director and State Food (Health) Authority, accorded written consent to launch prosecution vide RC. No. 16486/f1/92, dated 22. 12. 1992 against the accused, for the offence charged for. ( 6 ) LEARNED Magistrate on appreciation of the evidence of P. Ws. 1 to 3 and Exs. P1 to P11, came to the conclusion that the accused is guilty of the offences charged with and sentenced him to undergo Rigorous Imprisonment of six months and to pay fine of Rs. 3,000/- in default of payment of fine to undergo simple imprisonment for three months. In the appeal, the same had been reversed. Reasons in detail had been recorded by the learned Judge while reversing the judgment of the learned Magistrate. ( 7 ) IN Food and Sanitary Inspector, Giddalur v. K. Subbaratnam (supra), it was held as under: a reading of Rule 18 and the language shall be set give an indication that the rule is intended to be complied strictly. As stated by Craies, on Statute Law. ( 7 ) IN Food and Sanitary Inspector, Giddalur v. K. Subbaratnam (supra), it was held as under: a reading of Rule 18 and the language shall be set give an indication that the rule is intended to be complied strictly. As stated by Craies, on Statute Law. Seventh Edn, at page 262 that: It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statue to be construed. Go further than that in each case, must look the subject matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. At page 62, the same learned author states that when a statute is passed for the purpose of enabling something to be done and prescribed and formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory. ( 8 ) IN the light of the above rules of construction of the statutes and the duty of the Court as adumbrated, it is necessary to consider whether Rule 18 is mandatory. Mere employment of the word shall is not by itself conclusive but the object which the provision seeks to serve has to be considered in the light of the purpose it seeks to achieve and the guarantee it assures to the person that gets advantage there under or the failure to perform the duty enjoined under the statute would cause disadvantage to the general public. ( 9 ) RULE 18 appears to give a guarantee to the accused assuring that after taking samples of food for analysis, the same article is to be sent to the public analyst for analysis. Its object appears to be that after taking the sample by the food inspector and before the sample actually reaches the analyst, there shall not be any tinkering or tempering with the articles of food taken for analysis in the presence of the accused. Its object appears to be that after taking the sample by the food inspector and before the sample actually reaches the analyst, there shall not be any tinkering or tempering with the articles of food taken for analysis in the presence of the accused. After the sample was taken in the presence of the accused and the panch witnesses and before the receipt of the report from the analyst and communication of a copy thereof to the accused, he will be completely under dark as to how the samples taken have been handled. The contents of the report were ascribed to be the evidence of facts stated therein. Therefore Rule 18 serves as a bridge generating a definite source of assurance to the accused as well as to the Court to verity that the sample taken from the accused is the same that was sent for analysis because the report of the analyst with regard to its contents concludes (sic) the accused unless it is superseded by the report of the Director, Central Food Laboratory to which conclusiveness has been given. Thereby it seeks to serve a great public purpose of honest handling of the sample taken for analysis. If the procedure is not adhered to, the efficacy ascribed to the report of the analyst gets eroded and casts doubt on the prosecution case. If this object is kept in view, it admits of no doubt that the compliance with rule 18 shall be construed to be mandatory. Therefore the steps prescribed under Rule 18 are mandatory and shall have to be complied with and non-compliance thereof gets the entire prosecution vitiated. ( 10 ) APART from this aspect of the matter, the learned Sessions Judge also had taken into consideration other aspects and recorded acquittal. In view of the reasons recorded in detail by the learned Judge, this Court is of the considered opinion that the appellate Court is well justified in reversing the findings recorded by the learned Magistrate and recording an acquittal. Hence, this Court does not see any reason to disturb the said findings recorded by the appellate Court and the same are hereby confirmed. Accordingly, the Criminal Appeal shall stand dismissed.