Kerala High Court
Kuriakose Mathew vs The Food Inspector on 13 November, 2008
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 284 of 2002()
1. KURIAKOSE MATHEW,ONASSERIL HOUSE,
... Petitioner
1. KURIAKOSE MATHEW,ONASSERIL HOUSE,
Vs
1. THE FOOD INSPECTOR,ETTUMANOOR CIRCLE,
... Respondent
2. STATE OF KERALA,REPRESENTED BY THE
1. THE FOOD INSPECTOR,ETTUMANOOR CIRCLE,
2. STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.SANTHOSH SUBRAMANIAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/11/2008
O R D E R
THOMAS P.JOSEPH, J.
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CRL.R.P. No.284 of 2002
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Dated this the 13th day of November, 2008
O R D E R
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Revision Petitioner and counsel are absent. There is no representation. I heard learned Public Prosecutor.
2. Revision petitioner is the first accused in C.C. No.612 of 1993 of the Judicial First Class Magistrate, Kottayam. He along with second accused faced trial for offences punishable under Sections 2(i)(a), 7(i)(iii) and 16(1)(a)(i) of the Prevention of Food Adulteration Act read with Rules 5 and 50 of the Food Adulteration Rules for alleged sale of adulterated bengal gram. Revision petitioner was also charged for sale of food articles without obtaining licence from the local authority. Learned magistrate acquitted the second accused but, found the revision petitioner guilty, convicted and sentenced to imprisonment and payment of fine. Revision petitioner took up the matter in appeal. Learned additional Sessions Judge dismissed the appeal in confirmation of the conviction and sentence entered by the learned magistrate. Hence this revision.
3. It is contended in the revision petition that P.Ws.1 and 2, Food Inspectors who allegedly detected the offence and CRL. R.P.. No.284 of 2002 -: 2 :- preferred the complaint were not authorised to do so and that the court below went wrong in believing the evidence of P.W.1 regarding the purchase of bengal gram from the revision petitioner. At any rate, the process of sampling done by P.W.1 was defective and the delay in the Central Food Laboratory examining the article has contributed to the inspect damage of the food article. It is also contended that the court charge framed against the revision petitioner did not mention about the report of the Central Food Laboratory. A further contention taken is that relevant mandatory rules are violated by P.W.1.
4. I have perused the records.
5. P.W.1, Food Inspector is said to have purchased 750 gms. of bengal gram from the revision petitioner on 22.8.1989 at about 3.30 p.m. He claimed that he divided the food article into 3 equal parts and the same were separately packed, sealed and labelled. One of the samples part was sent to the Public Analyst who, as per Exhibit P10 reported that it is insect damaged, do not conform to the prescribed standards and therefore is adulterated. Intimation of the same was given to the revision petitioner. It is based on Exhibit P10 that P.W.2 who succeeded P.W.1, preferred the complaint. On the request of the revision petitioner, the second sample part was sent to CRL. R.P.. No.284 of 2002 -: 3 :- the Central Food Laboratory which, as per Exhibit P19 reported that the food article is adulterated. P.W.3 is the Secretary of the Local Authority and proved Exhibits P1 to P13. D.W.1 is one of the attesters in Exhibit P4, mahazar stated to be prepared by P.W.1. D.W.1 claimed that he was made to sign Exhibit P4 in the residence of P.W.1.
6. So far as the authority of P.W.1 to detect the offence is concerned, Exhibit P1 is the Notification appointing him as the Food Inspector of the circle concerned. Apart from suggesting to P.W.1 that he did not possess the prescribed educational qualification to be a Food Inspector which he denied, there is no challenge to Exhibit P1. So far as the competency of P.W.2 who succeeded on P.W.1 being transferred is concerned, she stated that there is Government Notification appointing her as Food Inspector consequent to the transfer of P.W.1. Notification was also produced in the court below. That Notification is not marked in evidence. But, version of P.W.2 that there is the Notification authorising her to act as Food Inspector was not challenged. Suggestion was also made to her regarding her educational qualifications. Though not marked in evidence, it is open to the court to take judicial notice of Government Notification. Records contain the Notification No.53611/G3/89/H&FWD dated 23.12.1989 CRL. R.P.. No.284 of 2002 -: 4 :- appointing P.W.2 as Food Inspector of the circle in question. There is no merit in the challenge to the competency of P.Ws.1 and 2 to act as Food Inspectors.
7. Though the version of P.W.1 regarding purchase of food article from the revision petitioner is under challenge, there is the evidence of P.W.1 which gets corroboration from Exhibits P2 to P4. Though D.W.1 has got a different version that he signed Exhibit P4 as witness at the residence of P.W.1, it has come in evidence that D.W.1 is also doing business near the shop of revision petitioner and himself is an accused in a case under the Act. Exhibit P4 shows that P.W.1 prepared the mahazar at the time of purchase of bengal gram.
8. Yet another contention is that there is no proper sampling of the food article. P.W.1 has given evidence regarding procedure and formalities adopted by him for sampling. Though he stated that he used a piece of paper as intermediary, he has also stated that it was clean and dry. There is no evidence to the contra. Regarding the contention that P.W.1 had not made the food article homogeneous, there is only the evidence of D.W.1. Fact remained that it was a case of revision petitioner selling the food article to P.W.1. Therefore that contention has no legs to stand.
CRL. R.P.. No.284 of 2002 -: 5 :-
9. It is contended that there is no finding entered by the court below that the food article was unfit for human consumption. Exhibit P10, report of the Public Analyst stands superseded by Exhibit P19 report of the Central Food Laboratory. In Exhibit P19 it is stated that food article was insect damaged and that it did not conform to the prescribed standards. It is also stated in Exhibit P19 that the food article contained abundant living and dead insects and it did not conform to the standards for food grains as per the Rules. If that be so, a specific finding that the food article was not fit for consumption is not required.
10. Exhibit P19 supersedes Exhibit P10. Notwithstanding Exhibit P19, charge against the revision petitioner continued to be as before. Therefore it was not necessary to amend the court charge in the light of Exhibit P19.
11. So far as violation of the Rules mentioned in the revision petition is concerned, P.W.1 has given evidence regarding the various steps taken by him. In the light of that evidence, the contention that Rules are violated cannot stand. Moreover, P.W.1 was also not cross- examined in that line.
12. Though P.W.1 stated that the revision petitioner had shown CRL. R.P.. No.284 of 2002 -: 6 :- a bill stated to have been issued to him by the second accused for purchase of food article in question and it is seen from the evidence of P.W.1 that a copy of that bill was also shown to him in chief examination, that by itself is not sufficient to give protection of Section 19 of the Act to the revision petitioner. There is no evidence to show that the revision petitioner purchased the food article from the second accused and that it was kept in the same condition as on the date of purchase. So far as the contention that delay in examination of the food article at the Central Food Laboratory contributed to the insect damage is concerned, apart from merely raising that contention there is no evidence on record in that line.
13. That revision petitioner was not having licence issued from the Local Authority during the relevant time is revealed from Exhibit P13 and the evidence of P.W.3, Secretary of the Local Authority. Exhibit P13 shows that revision petitioner applied for licence only on 26.8.1989 while the revision petitioner sold the food article in question to P.W.1 on 22.8.1989.
14. On going through the evidence, I find no illegality or irregularity in the concurrent finding entered by the courts below and the conviction of the revision petitioner.
CRL. R.P.. No.284 of 2002 -: 7 :-
15. Sentence imposed on the revision petitioner is reasonable and in accordance with the statutory provisions.
Resultantly, this revision petition fails and it is dismissed. Bail bond shall sand cancelled.
Criminal Miscellaneous Petition Nos.2214 and 4590 of 2002 shall stand dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv THOMAS P.JOSEPH, J.
=================== CRL.R.P. NO.284 of 2002 =================== O R D E R 13TH NOVEMBER, 2008