Madras High Court
State By Food Inspector vs Paulraj on 11 February, 2004
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT
1. State has come forward with this appeal aggrieved by the order of acquittal of the Judicial Magistrate No.VI, Trichy in C.C.215/93 acquitting the accused under Section 7(1), 16(1)(a), 2(1-a)(a)(m) and Rule 23 of the Prevention of Food Adulteration Act.
2.Facts leading to the present appeal (filed under Section 378 Crl.P.C) could be stated thus:
Respondent/Accused is running grocery shop (kspif fil) under the name and style "Saravana Stores" in Door No.112, Sangiliandapuram Main Road, Trichy. P.W.1-Chandran-Food Inspector is authorised to take sample of food. He visited the shop of the respondent on 2.12.92-9.15 a.m, P.W.1 introduced himself to the respondent. Further P.W.1 informed the respondent about his proposal to take sample of Red Gram Dhall for which the respondent has consented. P.W.1-Food Inspector has called for one Kuppusamy to be the witness. Form-VI Notice (Ex.P3) was duly served upon the respondent. After duly serving Form-VI Notice, P.W.1 paid cash (as per Ex.P4-Cash Receipt) and purchased 750 grams of Red Gram Dhall. Following the procedure laid down under Section 11 of Food Adulteration Act, he divided the same into three bottles and labelled them, affixing the seal. On the sample bottles, signature of the accused was obtained. One sample bottle was sent to the Public Analyst in Palayamkottai on the same day-2.12.92. Remaining two sample bottles were deposited with the Local (Health) Authority. P.W.1-Food Inspector received Ex.P9-Acknowledgement from the Local (Health) Authority.
3.On 31.12.92 Form-III-Public Analyst Report (Ex.P10) was received. The Public Analyst found that the sample is adulterated as it contains a cool tar colour TARTARAZINE. The colour substance TARTARAZINE is prohibited under Rule 23 of the Rules framed under the Food Adulteration Act.
4.Hence alleging violation of the Rules and after obtaining endorsement from the Local Health Authority, P.W.1-Food Inspector has filed the criminal complaint for the offences punishable under Section 7(1), 16(1)(a), 2(i-a)(a)(m) and Rule 23 of the Food Adulteration Act. After filing the complaint,Form-III-the Public Analyst Report and Section 13(2) Notice (Ex.P12) was sent to the Respondent/Accused which was served upon the accused on 10.2.93.
5.The complaint was filed against A1-Palraj and A2-Aruna Maligai who is said to have sold the Red Gram Dhall to A1-Palraj.
6.To substantiate the allegations in the complaint, in the trial court P.W.1-Food Inspector was examined. Exs.P1 to P12 were marked. Pointing out that the Red Gram Dhall was sold by A2 and A1 has not produced warrantee, A2-Manufacturer was acquitted.
7.A1 was also acquitted by the learned Magistrate interalia on the following findings:-
(i)Kuppusamy who was called to be the witness by the Food Inspector was not examined to prove the compliance of the procedure of taking sample as contemplated under Section 11 of the Food Adulteration Act;
(ii)Non-compliance of mandatory requirement of Section 11(c)(i) in not sending sample under intimation to the Local Health Authority;
(iii)Ex.P10-Form III Notice (dated 29.12.92) though received by the Municipal Commissioner on 31.12.92 notice was served upon the accused only on 10.2.93. Placing reliance upon 1991(2) MWN 81 the learned Magistrate found that the delay in serving the notice under Section 13(2) deprived the accused the opportunity of sending the sample to the Central Food Laboratory;
(iv)That there was no Warranty for selling the product.
8.As against the acquittal, the State has come forward with this appeal.
9.Assailing the findings, the learned Government Advocate submitted that the learned Magistrate erred in finding non-compliance of the requirement of Section 11(c)(i). It is further submitted that the approach of the trial court in disbelieving the prosecution for the non-examination of Kuppusamy is erroneous and cannot be sustained. It is further submitted that when the sample was found to be containing adulterated substance TARTARAZINE the trial court ought not to have insisted upon examining the independent witness. On the third ground the learned Government Advocate submitted that when the accused has not complained of any prejudice before the trial court, the learned Magistrate erred in finding that there is delay in serving the notice under Section 13(2) and that the reasonings of acquittal are unsustainable and the acquittal is to be reversed.
10.Countering the arguments, the learned counsel for the Respondent/Accused submitted that under Section 11(c)(i) service of notice upon the Local Health Authority is a pre-requisite for sending the sample and in view of non-compliance of the mandatory requirement, the trial court has rightly acquitted the accused. Further submitting that the delayed service of notice under Section 13(2) of the Food Adulteration Act is fatal to the prosecution. The learned counsel submitted that the delay in serving the notice deprived the accused of the opportunity of sending the sample to the Central Food Laboratory for further analysis, if so required.
11.Upon consideration of the submissions by both sides, the only short point that arises for consideration is whether the trial court committed serious and substantial error in acquitting the accused for the offences under Section 7(1), 16(1)(a), 2(i-a)(a)(m) and Rule 23 of the Food Adulteration Act and whether the order of acquittal is to be reversed.
12.Strict procedure is contemplated for taking sample. As contemplated under Section 10 of the Food Adulteration Act the Food Inspectors are expected to strictly follow the procedure. That for taking up the sample and for compliance of the procedure, admittedly P.W.1-Food Inspector called one Kuppusamy to be the witness who was not examined before the trial court. While taking action under any of the provisions mentioned in Section 10(7), the Food Inspector must call one or more independent persons to be present at the time when such action is taken. The provisions of Section 10(7) are akin to those under Section 103 of the Criminal Procedure Code when the premises of a citizen are searched by the police. These provisions are enacted to safeguard against any possible allegations of excesses or resort to unfair means either by the Police Officers or by the Food Inspectors under the Act.
13.Therefore Section 10(7) is mandatory and makes it obligatory on the part of the Food Inspector to call a person or persons to take the sample in the presence of such person or persons. In this case it is not as if no witness was called. Witness Kuppusamy was called and his signature was also taken on the bottles. To prove the compliance of the proper procedure, examination of Kuppusamy was very much necessitated.
14.Any doubts entertained that he may not support the case of the complainant need not detain the prosecution from detaining the witness. Absolutely no reason is forthcoming for the non-examination of witness Kuppusamy. In that view of the matter, the finding of the trial court on the non-compliance of Section 10(7) and in not examining the witness Kuppusamy is to be endorsed with.
15.On the second point viz., non-compliance of Section 11(c)(i) the learned Government Advocate contended that as per Rule 17 there is no such pre-requisite to send intimation to the Local (Health) Authority before sending the sample. The learned Government Advocate has drawn the attention to Rule 17 and submitted that the only requirement is that the containers of the sample are to be despatched in the manner contemplated under Rule 17 and that no prior intimation to the Local (Health) Authority is necessary for sending the sample. This submission of the learned Government Advocate does not merit acceptance in view of the clear procedure to be followed under Section 11(c)(i) of the Act. Section 11(c)(i) reds:-
"Send one of the parts for analysis to the Public Analyst under intimation to the Local (Health) Authority;
When intimation is necessarily to be sent to the Local (Health) Authority P.W.1 Food Inspector was not right in directly sending the sample without intimating the Local Health Authority.
16.Under sub-section (2) the Local (Health) Authority, shall, after the institution of the prosecution, forward a copy of the report of the result of the analysis to the person from whom the sample of the article of food was taken and the person if any whose name has been disclosed under Section 14-A. It shall inform such person or persons that they can make an application to the court within a period of 10 days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
17.Form No.III-Notice (Ex.P10) dated 29.12.92 was received by the Corporation on 31.12.92. Notice along with Form-III was served upon the accused only on 10.2.93. No reason is forthcoming for such delay of 40 days in serving the notice.
18.The object behind Section 13(2) of the Act is to enable the accused to move the court to get the sample kept by the Local (Health) Authority analysed by the Central Food Laboratory and since the word used in Rule 9-A of the rules framed under the above Act was "immediately" the copy of the report of the Public Analyst should be sent to the person from whom the sample was taken on the same day of the institution of the proceedings or the next day of the time for receipt of registered articles by the local post office on the day of institution of proceedings was over. Each one day's delay in this behalf would be hit by Rule 9(a). The prosecution for the offence i.e., the complaint was instituted only on 2.2.93 for which Form-III Report was received on 31.12.92. The learned Magistrate has rightly taken note of the same. By such delay in filing the complainant and the delay in sending the sample of Red Gram Dhall to the Public Analyst, there is every possibility of Red Gram Dhall sample becoming deteriorated, thereby depriving opportunity of the accused to send the sample to the Central Food Laboratory. Compliance of Section 13(2) is mandatory. Non-compliance of Section 13(2) and absence of any explanation for the delay in filing the complaint, the learned Magistrate was justified in acquitting the Respondent/Accused.
19.While dealing an appeal against acquittal, the High Court would interfere only if there are glaring infirmities resulting in miscarriage of justice. By careful consideration of the judgment of the trial court I find that the judgment does not suffer from any serious and substantial error warranting interference in the order of acquittal, especially at this distant point of time.
20.For the reasons stated above, this appeal is dismissed.