Madras High Court
State By The Food Inspector, Erode ... vs V. Sundaram on 11 April, 1996
Equivalent citations: 1997CRILJ387
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT
1. This is an appeal preferred by the State through the Public Prosecutor for the Food Inspector, Erode Municipality, against the order of acquittal in C.C. No. 1015 of 1987 in respect of the offence under Section 7(i) read with Sections 16(1)(a)(i), 2(ia)(a)(m) of the Prevention of Food Adulteration Act.
2. P.W. 1, the Food Inspector attached to the Erode Municipality, took the sample of Milk from the respondent while he was carrying a milk can, on 30-6-1987 at 09.00 a.m. After observing all the formalities, under Prevention of Food Adulteration Act and after payment of the sale price of the Milk to the respondent, the sample was taken and was sent for analysis. On receipt of the sample, the Analyst analysed the same and sent a report on 23-7-87 stating that the milk which was analysed, was found to be adulterated. So, on the basis of the report of the Analyst, P.W. 1 filed a complaint on 3-8-1987. Thereafter, he served a notice under Section 13(2) of the Prevention of Food Adulteration Act on 10-8-1987. On behalf of the prosecution, the Food Inspector has examined as P.W. 1 and Exs.P. 1 to P. 12 were marked, P.W. 1 while deposing in the Court, stated that he took sample of the milk after observing the required formalities as contemplated under the relevant rules, paid the cash, obtained the cash receipt from the respondent and thereafter, he sent the sample for analysis and it was found to be adulterated and on the basis of the receipt of the said report, he filed a complaint and served notice on the respondent.
3. On the side of the respondent, two witnesses were examined to speak about the fact that the milk was kept by the respondent not for the purpose of sale but for taking to the house of D.W. 1, his sister, for consumption, and for domestic purpose.
4. The learned trial Magistrate, on considering the case, found the respondent not guilty and acquitted him of the charges framed under the relevant provisions of the Act, giving rise to this appeal by the State.
5. Mr. Manimaran, learned Government Advocate, appearing for the State contended that the order of acquittal of the respondent by the Court below is perverse in the sense that the grounds on which the respondent was acquitted by the trial Court are untenable and that, therefore, the order of acquittal deserves to be reversed.
6. The grounds given by the Court below for acquitting the accused are of two-fold. They are (1) P.W. 1 has not been conferred with any power to file a complaint because the Government order issued in the year 1956 would not be applicable to P.W. 1 since he was appointed subsequent to the issuance of the Government order, and (2) the defence witnesses have deposed that the milk taken as a sample by the Food Inspector was not kept for sale and it was being brought to the house of the sister of the respondent but on the way P.W. 1 took the sample and as such, the relevant provisions under the Act would not be applicable to the facts of the present case.
7. As regards the first ground, this point has been already decided in several decisions earlier holding that the Government Order issued in the year 1956 would be applicable to all the Food Inspectors though they have been appointed subsequently. Moreover, by virtue of the (power) conferred under Section 20 of the Act, all the Food Inspectors are competent to file a complaint against any person, who is involved in the offence under the provisions of the Prevention of Food Adulteration Act. One such decision is in Criminal Appeal No. 345 of 1987, dated 30-6-1994, by Justice Rengasamy, in which several decisions were referred. I had also an occasion to decide on this aspect following the above decision. As such, the ground on which the acquittal order has been passed by the learned trial Magistrate that the Food Inspector is not competent to file a complaint, is not a valid one.
8. As far as the second ground is concerned that the evidence adduced by P.Ws. 1 and 2 to the effect that the milk was not kept for sale, also cannot be valid in law because the evidence adduced by P.W. 1 would show that the milk was sold by the respondent to the Food Inspector P.W. 1 and for which the respondent also received the cash and a cash receipt was obtained, which was marked as one of the exhibits in this case. This Court and the Apex Court have held that the sale of the sample of an article to the Food Inspector would constitute a sale attracting the relevant provisions of the Food Adulteration Act, as such, both the grounds mentioned in the judgment for acquitting the respondent, are not valid in law.
9. However, Mr. Sengottaiyan, learned counsel appearing for the respondent, though concedes that the reasons given by the Court below are patently perverse, and the said judgment deserves to be reversed, he contends that the order of acquittal could be sustained on the point of admitted lack of evidence on part of the prosecution to the effect that the sample of milk that was taken was not stirred or churned before it was taken as sample. He further contended that if the sample of milk is not stirred or churned before taking the sample, it cannot be stated that the milk sample so taken represented homogenous and representative one to lead to the correct test by the Analyst. Admittedly, there is no evidence adduced by the prosecution that the milk which was purchased for sampling was stirred by the Food Inspector with a dipper or poured from one vessel to another before such purchase. The milk must be stirred before purchase to avoid fat globules or air bubbles coming in the sample. In the absence of the evidence that the milk, before its purchase, was stirred or shaken or churned, it cannot represent homogenous and a representative one to lead to correct test by the Analyst. The learned counsel for the respondent also brought to my notice, the decision of the Supreme Court in Food Inspector, M. C. Baroda v. M. R. Sharma, , in which the Apex Court observes as follows (Para 8) :
"We are conscious of the fact that in milk and Milk proparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has the prescribed content, the sample must be homogeneous and representative so that the Analyst can furnish reliable proof of the nature and content of the articles of food under analysis."
From the above observation, it is clear that the sample taken must be homogenous and representative. In this case, admittedly as the taking of the sample of the milk had not been carefully done by the Food Inspector it could not be safely said that the sample of milk sent to the Analyst, truly represented the milk which was to be tested. Though, the grounds given in the judgment of the lower Court for acquitting the accused, were perverse, the acquittal could be sustained and maintained as submitted by Mr. Sengottaiyan, counsel for the respondent, on the ground that there is lack of evidence relating to the stirring or churning of the milk. In Elumalai, In re, 1995 Mad LW Weekly (Criminal) 338, State by Public Prosecutor v. Ramachandran, (1988) 2 Mad WN (Cri) 29; State by Public Prosecutor v. Kandan, 1989 Mad LW (Cri) 285 and in Natarajan v. State by Food Inspector, Tirunelveli Municipality, 1993 Mad LW (Cri) 623, the above procedure, has been emphasised.
10. In view of the above, the appeal, which has no merits, is liable to be dismissed. Accordingly, it is dismissed.
11. Appeal dismissed.