Kerala High Court
Food Inspector vs Abdul Rahiman on 23 July, 2002
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. This appeal is filed challenging the judgment of acquittal passed by the Judicial First Class Magistrate in two cases involving offences under Sections 16-1A and 16(1)(a)(ii) respectively of the Prevention of Food Adulteration Act, 1954 against the respondents, who were accused Nos. 1 and 2. After trial, the learned Magistrate, however, found that there were very many infirmities in the prosecution proceedings and in the absence of sufficient evidence, acquitted the accused.
2. When the matter was taken up today, the learned Public Prosecutor was asked as to how a single appeal could be maintained when the challenge is of judgment passed in two cases, though clubbed together. He conceded that only one appeal has been filed; but could not explain the discrepancy. As opted by him, I treat this as an appeal from the judgment in C.C. No. 388/87.
3. The case is one of very peculiar facts. Though offence under the PFA Act is alleged against the accused, the actual seizure from the shop was made by the Sub Inspector of Police, Kalady, and not by any Food Inspector. According to the prosecution, the said Sub Inspector of Police, while on patrol on 26.6.87, got reliable information that misbranded rice was stored in the rice mill of one Moosakutty in Makkalady. After preparing a search memorandum, he searched the rice mill which was found closed and found 710 Kgs. of rice stored there. Even by appearance, he was convinced that the rice was adulterated with addition of colour. His doubts were confirmed when he found a gunny bag containing the adulterant - red powder. He seized both the items and removed them to the Police Station and registered Crime No. 107/87 under Section 102 of the Code of Criminal Procedure and thereafter informed the matter in writing to the Food Inspector, Angamaly, requesting him to take sample from the rice and from the red powder for the purpose of analysis.
4. The Food Inspector turned up on the next day and took three samples each from both as required by Rules. As the seizure was not from the shop; but from the Police Station, he could serve Form VI notice only on the witnesses available in the Police Station. He, however, completed the formalities prescribed by the Rules. Later on he filed two complaints also before court which resulted in C.C. Nos. 387 and 388/97. PW2 - Sub Inspector simultaneously proceeded. Ultimately, charge was laid before the Court alleging the offences under Sections 272, 420 and 511 of the Indian Penal Code. The said case, however, ended up in discharge of the accused holding that two prosecutions against the accused for one and the same transaction was impermissible. However, the Court proceeded with the case relating to adulteration and keeping of adulterant with numbers CC 387 and 388/87. They were later on clubbed together and tried and ultimately, the impugned judgment passed.
5. The learned Public Prosecutor submitted that the acquittal is unjustified. According to him, the Sub Inspector of Police has acted with utmost good faith in seizing the adulterated rice and the adulterant and in the circumstances, he could have followed only the procedure that was actually adopted by him viz., sending for the competent Food Inspector and to proceed in accordance with the PFA Rules.
6. The points for consideration are:
(1) Whether the acquittal passed by the trial court is justified?
(2) Reliefs.
7. Point No, 1:- Even accepting the arguments of the learned Public Prosecutor with regard to the bona fides of the Sub Inspector of Police in seizing the items from the particular rice mill, there are various obstacles in the way of finding the accused guilty of the offence. They are given below:
(i) It may be that irrespective of the provisions under the PFA Act, the Sub Inspector of Police was justified in invoking his own powers in registering a case under Sections 272, 420 and 511 of the IPC; but then the Court on noticing that prosecution has been laid under the provisions of the PFA Act with regard to the very same article has chosen to discharge the accused on 8.5.89 and there is no challenge of that order before this Court. The discharge has become final and what can be considered, in the circumstances, is only whether a proper prosecution has been laid under the provisions of the PFA Act.
(ii) This is not a case where seizure was made by the Food Inspector from the possession of the owner or person in possession of the rice mill. The sample was collected while the article was available in the Police Station and the accused can always contend that the removal of the items from the closed rice mill without sealing the substance and keeping it in such condition in the Police Station gave room for possibility for adulterant being added in between the seizure from the rice mill and the time when the Food Inspector actually collected the samples and also to contend that what was examined and samples prepared was not the item actually kept in the rice mill.
(iii) According to the prosecution, the 1st accused is the owner of the rice mill and the 2nd accused was the person, who was actually operating the mill during the relevant time. However, Ext. P23 certificate only shows that the 1st accused is the owner of the building and that he had a licence for running the mill therein during the period 1982-83; but had not renewed the licence at any time thereafter. In the circumstances, Ext. P3 is insufficient to show that the 1st accused, who was not available in the mill during the time of search and seizure by the Sub Inspector of Police on 26.8.87, was the actual owner of the rice mill. It has to be mentioned here that Ext. P23 is the only piece of evidence relied on by the prosecution to connect the 1st accused with the crime in question.
(iv) As far as the 2nd accused is concerned, he was also not present in the shop at the time of seizure. In fact, the seizure was from a closed shop. A rent deed which was seized under Ext. P30 mahazar was relied on to show that the 1st accused had rented out the mill to the 2nd accused for operation; but then the said rent deed is not seen marked in the case obviously because it had been produced in Crime No. 107/87. It is true that Ext. P30 contains an extract of the relevant provisions of the rent deed; but then justification for admitting the same as secondary evidence remains unestablished. In the circumstances, the link alleged by the prosecution between accused Nos. 1 and 2 as also with regard to the ownership of the rice mill and the seized items as also the ownership or possession of those items by either accused remains unestablished. Neither were given Form VI notice also. It necessarily follows that both were entitled to be acquitted.
(v) According to the prosecution, out of the three samples collected by PW1 - Food Inspector, one was sent by him to the Public Analyst and Ext. P14 report was obtained. Later on, another sample was sent over to the Central Food Laboratory and Ext. P24 report was obtained. According to Section 13(3) of the PFA Act, the certificate issued by the Director of the Central Food Laboratory under Sub-section (2B) shall supersede the report given by the Public Analyst under Sub-section (1). The impact of this provision is that once Ext. P24 report was received, Ext. P14 (the original is Ext. P21) ceases to be effective for any purpose; not even for a comparison of the details of the findings entered by the two Laboratories. Ext. P14 or P21 do not deserve to be looked into for any purpose whatsoever and therefore we can safely go by Ext. P24 to see whether the sample of rice collected from the rice mill was actually adulterated.
8. The finding in Ext. P24 is that by appearance the rice was moisture damaged and contained brittle and fungal affected grain with foul odour. The sample was therefore certified as not conforming to the standard of food grains as per the PFA Rules. It has to be mentioned here that as against moisture of not more than 16% by weight prescribed under item 18.06.04 mentioned in Appendix B of the PFA Rules, 22.76% by weight of moisture was noticed by the Analyst of the Central Food Laboratory. Likewise, as against the maximum of 5% by weight prescribed in the matter of damaged grains, the percentage by weight found in the sample was 79.186. There is no doubt at all that the sample seized in the case was adulterated; but then, the responsibility therefor has to be fixed only in accordance with the provisions in the PFA Act and Rules. For the reasons already mentioned, criminal liability in the matter cannot be fastened on accused No. 1 or 2. The only authority who can make the seizure of sample for the purpose of prosecution under the PFA Act is the Food Inspector and he has to do so strictly in accordance with the provisions in the PFA Act and Rules. Collection of sample herein being from bags kept in the Police Station in open condition, and the persons, who were in control of the articles while they were in the mill, being not available there for the purpose of effecting a sale to the Food Inspector as contemplated in the Rules, there is no question of convicting the accused. The acquittal granted by the trial court is hence well justified.
9. Dhanna v. State of Madhya Pradesh (AIR 1996 SC 2478) gives the guidelines in the matter of consideration of an appeal from acquittal. Though the Cr. P.C. does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the Appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusions whether the appeal is against conviction or acquittal. While dealing with an appeal against acquittal, however, the Appellate Court has to bear in mind first that there is a general presumption in favour of the innocence of the person accused and that presumption is strengthened by the acquittal made by the trial court. The second reason is that every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the Appellate Court also. The Appellate Court has therefore to proceed very cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, an order of acquittal can be interfered with or disturbed.
10. Point No. 2:- When the evidence available in the case is analysed from the above perspective, there cannot be any doubt at all that there is no scope for interference with the acquittal passed by the trial court which had the additional benefit of watching the demeanour of the witnesses examined before it.
In the circumstances, the appeal is found to be without merit and it is dismissed.