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2004 DIGILAW 930 (AP)

Food Inspector, Eluru v. Puneriya Kishore Kumar

2004-08-30

P.S.NARAYANA

body2004
( 1 ) HEARD the learned Additional Public prosecutor. Ail these appeals are coming up for admission. The twin questions, which are being elaborately argued by the learned additional Public Prosecutor, are the question of jurisdiction of the Food Inspector to life the sample beyond the local area in respect of which he holds office and acquittal recorded on the ground that except the evidence of p. W. 1, the Food Inspectors, the mediators had not supported the case of the prosecution. The learned Additional public Prosecutor also had drawn the attention of this Court to section 57 of the Indian Evidence Act, 1872, and would contend that the aspect of notification and the jurisdiction of the Food inspector can be taken judicial notice by the court. The learned Counsel, no doubt, in all fairness submitted that the notifications were not produced before the learned Magistrate and also the Food Inspectors, who were examined in these cases, also had not deposed about this aspect, however, the learned Counsel also would contend that acquittal recorded on the ground that the statement of Food Inspector is not corroborated by other evidence can not be sustained, in the light of the view expressed by the Apex Court in Food Inspector v. G. Satyanarayana The learned Additional public Prosecutor would contend that these are all matters, which may have to be remitted back for affording opportunity to prove the first aspect. ( 2 ) HEARD the Counsel and perused the findings recorded in all these cases. ( 3 ) CRIMINAL Appeal No. 1665 of 2004 is preferred against an order of acquittal recorded in C. C. No. 17 of 2001 on the file of the VII Metropolitan Magistrate, Hyderabad, and dated 29-11 -2002. The brief facts of the case are as hereunder: "on 1-10-2001 at about 11. 45 a. m. , food Inspector along with his A. F. C. , vigilance Officials and Flying Squad, visited the shop of accused No. 2 and found accused No. 1 transacting the business. He then disclosed his identity and secured the presence of two independent witnesses, and inspected the shop of the accused, found an open gunny bag of dall containing approximately 25 Kgs. On enquiry by the Food Inspector, accused disclosed that the said dall is green gram dall kept for sale to public for human consumption, purchased from accused no. He then disclosed his identity and secured the presence of two independent witnesses, and inspected the shop of the accused, found an open gunny bag of dall containing approximately 25 Kgs. On enquiry by the Food Inspector, accused disclosed that the said dall is green gram dall kept for sale to public for human consumption, purchased from accused no. 4 firm vide Bill No. 6261, dated 23-9-2001, having suspected of adulteration, purchased 750 grams of green gram dall for Rs. 19. 50 ps. under a cash receipt, served From VI Notice, intimated that the purchased sample of dall will be sent to the Public Analyst for analysis, obtained acknowledgment of form VI, divided the sample into three equal parts, placed each part in a clean, dry and empty plastic tin, closed each tin with caps, tied with twine, pasted labels issued by L. H. A. , wrapped each part in thick brown paper, folded ends, pasted paper ellp, obtained the signatures of accused, witnesses in such a manner that part of the paper slip covers the signature and part of the signature covers brown paper, each tin secured with strong thread, affixed seals at four distinct places, i. e. , one at top, one at bottom and one each on either side of the sample packet, and that all the above process of the Food Inspector covered under a panchanama, read over and explained the contents to accused and witnesses, obtained their signatures after admitting the facts of the panchanama are true and correct and that on 3-10-2001, handed over one part of the sample packet to the public Analyst along with copy of Form vii memorandum and deposited remaining two parts of the sample parts with the concerned L. H. A. jr safe custody along with two copies of form VII memorandums, under acknowledgments. On receipt of the public Analyst s report in Form III, opining that the sample does not conform to the permissible limit of damaged grains and it is therefore adulterated, and also received written consent, issued by the Director, IPM. , u/s. 20 (1) of Prevention of Food adulteration Act, 1954 (hereinafter referred in short as act ) to launch prosecution against the accused. " ( 4 ) THE prosecution had examined p. Ws. 1 and 2 Exs. P-1 to P-21 and exs. D-1 and D-2 were marked. , u/s. 20 (1) of Prevention of Food adulteration Act, 1954 (hereinafter referred in short as act ) to launch prosecution against the accused. " ( 4 ) THE prosecution had examined p. Ws. 1 and 2 Exs. P-1 to P-21 and exs. D-1 and D-2 were marked. ( 5 ) CRIMINAL Appeal No. 1832 of 2004 is preferred against an order of acquittal recorded by the VII Metropolitan Magistrate, hyderabad in C. C. No. 9 of 2001; dated 4-12-2002 and the brief facts of the case are as hereunder:"on 1 -10-2001 at about 12 noon, Food inspector visited the shop of accused no. 1, along with Vigilance and enforcement Officials, Department officials A. F. C. Zone III, Guntur and office Attender and found accused transacting the business, disclosed their identity, secured the presence of witnesses to act as witnesses, inspected the shop. During the course of inspection, Food Inspector found 12 tins of Raju Gold Filtered groundnut oil of 15 Kgs. , each, containing seal and label declaration. On enquiry, accused no. 1 stated that the said oil is kept for sale to public and for human consumption, purchased from m/s. Shankarlal Jai Narayan Oil merchants, through Bill No. 778, dated 29-9-2001, accordingly, Food Inspector purchased 450 grams from one of the sealed tins by break opening the seal, and after stirring the oil in the tin for rs. 19. 50 ps. under a cash receipt, and served Form VI notice, intimating that the purchased sample would be sent to the Public Analyst for analysis, divided into three equal parts @ 150 grams each, poured them into three clean, dry and empty glass bottles, closed the caps tightly to prevent leakage, sealed with specimen seal, pasted labels, wrapped in thick brown paper, folded the ends affixed with gum, pasted paper slips, obtained the signatures of witnesses in such a manner that part of the signatures covers paper slip and partly on brown paper, tied with twine, sealed at four distinct places i. e. , one at top, one at bottom and one each on either side of the bottle, and drafted a panchanama containing the above facts, explained the same to the witnesses and obtained their signatures after admitting the fact s of the panchanama to be true and correct. He then, sent one part of the sample packet along with Form VII Memorandum to the Public Analyst for analysis, and deposited remaining two parts along with two copies of Form VII memorandums with the concerned l. H. A. for safe custody, in turn Food inspector received public. Analyst s report delivered by the Analyst after causing analysis to the sample, opinion that the sample does not conform to the belief s test (turbidity temperature- acetic acid method) and is therefore adulterated. The Director, IPM and f. (H ). A. , in exercise of the powers conferred under Section 20 (1) of the act, accorded written consent fo prosecute accused 1 and 2 for the offences under Sections 16 (1) (a) (i), 7 (i) and 2 (ia) (m) of the Act. " ( 6 ) THE evidence of P. Ws. 1 to 3 was recorded and Exs. P-1 (o P-33 were marked. ( 7 ) CRIMINAL Appeal No. 1835 of 2004 is preferred as against an order of acquittal recorded in C. C. No. 19 of 2002 on the file of the VII Metropolitan Magistrate, Hyderabad, and dated 21 -12-2002. The brief facts of the case are as hereunder:"on 1-10-2001 at about 10 a. m. , Food inspector under the supervision of a. F. C. and other shop visited the shop of accused, for inspection and found accused No. 1 present and transacting the business, and after disclosing their identity, secured witnesses, and that during the course of inspection, Food inspector found 20 bags of 50 kgs. , each containing red gram dall kept for sale to public and for human consumption. On suspicion of adulteration, served Form VI notice, intimating that the sample of red gram dall would be sent for analysis, accordingly purchased 750 grams for rs. 17-25 ps. , each containing red gram dall kept for sale to public and for human consumption. On suspicion of adulteration, served Form VI notice, intimating that the sample of red gram dall would be sent for analysis, accordingly purchased 750 grams for rs. 17-25 ps. , paid the cash, obtained cash receipt, subsequently took three clean dry and empty containers, cleaned with white cloth, poured the sample equally by weight into three sample containers, closed with caps, tied with twine, sealed with wax, wrapped in thick brown papers, folded ends neatly, affixed paper slips from top to bottom of the sample bottles, sealed and affixed impression of the Food Inspector, obtained signatures of vendor/accused, and mediators in such a manner that part of the signatures appears on paper slip and brown paper, and that he conducted a panchanama mentioning the brief facts of the inspection and sampling work done at the spot in the shop of accused No. 1 and obtained signatures of accused/vendor and mediators. , and sent one part of the sample along with Form VII memorandum to the Public Analyst for analysis, and deposited remaining two with the L. H. A. for safe custody. In turn the Public Analyst delivered his report opining that the sample does not conform to the permissible limit of damaged grains and is therefore adulterated, on receipt of the written consent from the Director, filed the charge-sheet in the Court for the offences under Sections 16 (1 ) (a) (ii), 7 (i) and 2 (ia) (a) of the Act, and Rule 50 of prevention of Food Adulteration rules, 1955. " ( 8 ) P. WS. 1 and 2 were examined and exs. P-1 to P-19 and Ex. D-1 were marked. ( 9 ) AS can be seen from the facts in the first matter, P. W. 1, who has been working as food Inspector, West Godavari District, had lifted the samples in twin cities. In the second matter, P. W. 1 has been working as Food inspectoral Division II, Visakapatnam District and lifted the samples in twin cities. In the third matter, P. W. 1 has been working as food Inspector in East Godavari District and lifted the samples in twin cities. In the second matter, P. W. 1 has been working as Food inspectoral Division II, Visakapatnam District and lifted the samples in twin cities. In the third matter, P. W. 1 has been working as food Inspector in East Godavari District and lifted the samples in twin cities. Elaborate reasons were recorded by the learned magistrate, both on the question of jurisdiction to lift the samples in twin cities being beyond the jurisdiction of the limits of these Officers, and also on the ground that there is no other evidence apart from the evidence of the food Inspector to support the version of the prosecution. The independent mediators were declared hostile, no doubt, in Food inspector s case referred to supra, the Apex court, while dealing with the aspect of the proof of adulteration under the Act and the corroboration of the statement of the main witness, Food Inspector, by other independent witnesses, corroboration was held to be only rule of prudence and not necessary and acquittal of the accused only on the ground of testimony of main prosecution witness was not corroborated by independent witnesses, was held to be improper. ( 10 ) IT is pertinent to note that in these matters, that is not the only ground on which the acquittal had been recorded. Rule 11 of the A. P. Prevention of Food Adulteration rules, 1957, dealing with jurisdiction of Food inspector, specifies:"a Food Inspector shall exercise the powers and duties conferred on or delegated to him under the Act within the local area in respect of which he holds office. " ( 11 ) HENCE, when a Food Inspector of a different area, whether it is Visakhapatnam or East Godavari or some other place, had lifted the samples beyond the area or jurisdiction, it is for the prosecution to positively prove that he has such authority to lift the samples. The facts are not in controversy that these Food Inspectors are not the Food inspectors in relation to twin cities, but the samples were lifted in twin cities. ( 12 ) SECTION 57 of the Indian Evidence act, 1872, deals with the facts of which Court must take judicial notice. The facts are not in controversy that these Food Inspectors are not the Food inspectors in relation to twin cities, but the samples were lifted in twin cities. ( 12 ) SECTION 57 of the Indian Evidence act, 1872, deals with the facts of which Court must take judicial notice. Section 57 (7) of the indian Evidence Act, 1872, specifies that the court shall take judicial notice of the following facts: The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any Official Gazette. There cannot be any controversy relating to this aspect. But, however, in the light of Rule 11 of the Rules specified supra, the prosecution has to prove this aspect. It is the duty of the "prosecution to produce the notification in such a case or equally when the learned magistrate entertains a doubt, the learned magistrate also may call upon the prosecution to produce the notification in this regard showing the authority or jurisdiction of the food Inspectors to lift the samples. In the absence of the same, recording of acquittal by the learned Magistrate cannot be found fault. ( 13 ) HENCE. this Court is of the considered opinion that the main ground on which the acquittal had been recorded in all these matters, definitely, is a sustainable ground and hence, this court does not see any reason to admit these appeals, inasmuch as acquittal had been recorded on the ground of want of jurisdiction or the authority of the Food inspectors to lift the samples in twin cities beyond the jurisdiction of the respective Food inspectors in these matters. ( 14 ) ALL the three appeals are accordingly dismissed at the stage of admission.