Madras High Court
State By Food Inspector, Corporation Of ... vs N. Amirthavel on 30 April, 2003
JUDGMENT S.K. Krishnan, J.
1. This appeal by the State is preferred against the judgment of the learned Judicial Magistrate No. VI, Madurai, acquitting the accused/respondent who was charged for an offence under Sections 2(1a)(a)(m), 7(i) & 16(1)(a)(1) r/w Rule 5 Appendix 17.11 of the Prevention of Food Adulteration Act.
2. The case of the appellant, in-brief, is as follows:
a. On 25.9.1990, at 10.00 a.m. P.W.1, Food Inspector of Madurai Corporation went to the shop, namely, Amudham Store, at door No. 1/5, T.T. Road, Arapalayam, Madurai Town, along with one Periasamy, to take food sample. At that time accused No. 2, respondent herein, to whom P.W.1 introduced himself, was selling the food articles. On enquiry, in the presence of P.W.2, Chinnasamy, accused No. 2 revealed that the shop was belonged to the accused No. 1 and he was only a sales man. P.W.1 purchased 750 gm gingili oil at Rs. 24/- and got a cash receipt, Ex.P.2 for the same. After preparing Form VI to send the gingili oil for chemical analysis, P.W.1 served a copy of Form VI, Ex.P.2, on the accused No. 2. Thereafter, P.W.1 divided the sample into three equal parts and after observing all the formalities, sealed them in three clean dry bottles and sent one bottle to the public analyst for analysis. Having obtained a report, wherein it is stated that the food article was adulterated, laid a complaint against both the accused.
b. After perusing the materials and evidence placed on record, the trial Court acquitted both the accused. Aggrieved, the appellant has filed this appeal against the accused No. 2 alone.
3. The learned Additional Public Prosecutor would contend that P.W.1 has followed the procedures strictly while taking the samples and the same were sent for analysis and on the basis of the analyst report which would reveal that the sample sent by the P.W.1 is adulterated, he laid a complaint and without considering the materials and evidence and also the analyst report, the trial Court had committed an error by acquitting both the accused and therefore, the judgment of the trial court may be set aside.
4. In reply, the learned counsel for the respondent would contend that P.W.1 was not authorised to take samples from the shop of the accused and also he did not undergo any specific training for a period of three months in any authorised institution. In such circumstances, the entire proceedings of P.W.1 is not sustainable under law and to buttress his contention he relied on a decision in STATE BY THE FOOD INSPECTOR OF PERAMBALUR TOWN PANCHAYAT, REPERESENTED BY PUBLIC PROSECUTOR VS. CHIDAMBARAM (1987 L.W.(Crl.) 426).
5. Now the main question to be decided is whether the P.W.1, Food Inspector, is duly qualified or competent to take samples or not, on which question the present appeal is surviving.
6. Though the learned Additional Public Prosecutor would contend that P.W.1 took the samples after strictly following the procedures laid down in the Prevention of Food Adulteration Act, he could not reply to the question put forth by the learned counsel for the respondent that P.W.1 neither is duly qualified nor undergone any specific training as prescribed in the Rules. Under these circumstances, to find an answer to the above contention, it is proper to go into the evidence of P.W.1 and P.W.2.
7. In this case, two witnesses have been examined, but when P.W.2 turned hostile, the only evidence available is P.W.1, which, therefore, requires careful scrutiny.
8. In para 4 and 5 of the decision in STATE BY THE FOOD INSPECTOR OF PERAMBALUR TOWN PANCHAYAT, REPRESENTED BY PUBLIC PROSECUTOR VS. CHIDAMBARAM (1987 L.W.(Crl.) 426) which relied upon by the learned counsel for the respondent, it is observed as follows.
"4. The area of controversy is limited in scope. The Food Inspector, P.W.2, has categorically admitted in his evidence that for taking sample, he did not undergo any training but he is working as a Food Inspector from 18th February, 1966 onwards. It is contended by the learned Government Advocate appearing for the State that eventhough R.8 of the Prevention of Food Adulteration Rules, 1955 provided qualifications for the Food Inspector, the last proviso to R.8 does not disqualify P.W.2 to be a Food Inspector. The proviso on which reliance is placed by the learned Government Advocate runs thus:
"Provided also that nothing in this rule shall be construed to disqualify any person who is a food inspector on the commencement of the Prevention of Food Adulteration (Amendment) Rules, 1980 for continuing as such after such commencement."
Mr. T.S. Arunachalam, learned counsel appearing for the respondent, pointed out that this Food Inspector having not been trained even to take sample, is not competent to take sample of the food article. Even a reading of the proviso shows that a Food Inspector has to be duly qualified for being appointed as such. R.8 prescribes the qualifications and runs thus:
"A person shall not be qualified for appointment as Food Inspector unless he-
(a) is a medical officer in charge of health administration of a local area; or
(b) is a graduate in medicine and has received at least one month's training in food inspection and sampling work approved for the purpose by the Central Government or a State Government; or
(c) is a Graduate in Science with Chemistry as one of the subjects or is a graduate in Agriculture or Public Health or Pharmacy or in Veterinary Science or a graduate in Food Technology or Dairy Technology or is a diploma holder in Food Technology or Dairy Technology from a University or Institution established in India by law or has equivalent qualifications recognised and notified by the Central Government for the purpose and has received three month's satisfactory training in Food Inspection and sampling work under a Food (Health) Authority or in an institution approved for the purpose by the Central Government;
Provided that the training in food inspection and sampling work obtained prior to the commencement of Rs. 5 of Prevention of Food Adulteration (Fourth Amendment) Rules 1976, in any of the laboratories under the control of -
(i) a public analyst appointed under the Act; or
(ii) a fellow of the Royal Institute of Chemistry of Great Britain (Branch E) ; or
(iii) any Director, Central Food Laboratory, or the training obtained under a Food (Health) Authority, prior to the commencement of the Prevention of Food Adulteration (Amendment) Rules, 1980, shall be considered to be equivalent for the purpose of the requisite training under these rules:
Provided further that a person who is qualified Sanitary Inspector having experience as such for a minimum period of one year and has received at least three months training in whole or in parts in food inspection and sampling work, may be eligible for appointment as food inspector, upto the period ending on the 31st March 1985 and may continue as such if so appointed even though he does not fulfill the qualifications laid down in Cls. (a) to (i):
Provided also that nothing in this rule shall be construed to disqualify any person who is a food inspector on the commencement of these Prevention of Food Adulteration (Amendment) Rules, 1980 from continuing as such after such commencement."
5. It is clear from the evidence of P.W.2 that he does not satisfy any of the conditions laid down in R.8 and it is also conceded by the learned Government Advocate. But what the Government Advocate would say is that the Food Inspector shall not be disqualified as he was a Food Inspector on the date of commencement of the Prevention of Food Adulteration (Amendment) Rules, 1980. There is evidence that he was appointed on 18.2.1986. Now R.8 goes to the root of the competency of the Food Inspector. In this case, there is no evidence what the qualification of the Food Inspector, P.W.2 is. He has also not filed the order of appointment to find out whether even at the time of appointment, he was qualified. It is no doubt true that nothing in R.8 should be construed to disqualify him from continuing as Food Inspector after the commencement of the Rules 1980. But then R.8 having provided qualifications for Food Inspector, the Food Inspector, in my view, should prove that on the date of appointment he was duly qualified and duly appointed. The first proviso to R.8 speaks of training in food inspection and sampling work in laboratories under the control of Public Analyst appointed under the Act, etc. It is admitted by P.W.2, Food Inspector, that he did not undergo any training in any laboratory under the direct control of a Public Analyst. In the face of this admission of P.W.2, the Food Inspector, that he did not have any training to take samples, it would be wrong to hold that the Food Inspector is qualified to take samples. At any rate, in my view, it will cause great prejudice to the accused, if a Food Inspector, who did not have any training to take samples, takes samples of the food article. It also appears to me that it would be dangerous to convict the accused on the basis of report sent by the Analyst in respect of a food sample taken by a person who had admittedly no training to take the sample of food articles. Sitting in appeal against acquittal, even if two views are possible on the interpretation of the last proviso, the judgment acquitting the accused should not be lightly disturbed. On that view, I do not propose to go into the question whether the Analyst's report should contain the date of analysis. The appeal fails and is dismissed. "
9. The evidence of P.W.1 has to be analysed, in the light of the above decision and Prevention of Food Adulteration Rules as to the qualification and training. On a perusal of the evidence of P. W.1, though he has stated that he has followed the procedures laid down under the Prevention of Food Adulteration Act, he has not stated anything properly or with documentary evidence as to the training said to have undergone. In the cross examination of P.W.1, he has admitted that there is no Government Order regarding his appointment as Food Inspector, but there is only a memorandum. He has also stated that he had undergone a training for a period of three months, in Gandhi Museum, Madurai, whereas he has not produced any certificate thereto. Therefore, the decision relied upon by the learned counsel for the respondents is squarely applicable to the case on hand.
10. From the above evidence it is made clear that neither the P.W.1 has requisite qualification nor necessary training as prescribed under Rule 8. When as per the Prevention of Food Adulteration Rules, P.W.1 cannot be a Food Inspector, whatever his proceedings following the taking of samples, for which he has not undergone any training or fulfilled the requirements of Rule 8, are not sustainable under law and also on a perusal of the judgment of the trial court, which acquitted the respondent herein on the same ground, I do not find any infirmity in the judgment of the trial court and therefore, I am not inclined to interfere with the judgment of the learned Judicial Magistrate No. VI, Madurai, in C.C. No. 1847 of 1990, dated 30.8.1994.
In result, the appeal has no merit and is liable to be dismissed. Accordingly, the same is dismissed.