Kerala High Court
V.P. Narayanan Nair S/O. Chinnammu ... vs The Food Inspector on 5 March, 2003
Equivalent citations: 2003CRILJ2569, 2003(2)KLT419
Author: Koshy
Bench: J.B. Koshy
JUDGMENT Koshy, J.
1. "Can the Food Inspector, or is he obliged to, add a preservative to a sample of food grain purchased by him notwithstanding the absence of specification of any such preservative under the rules?" This is the question referred to us by the learned Single Judge (Mr. R. Basant, J.) in this case. According to the learned Single Judge, Full Bench (5 Member Bench) in Mathukutty v. State of Kerala (1987 (2) KLT 867) did not consider the effect of Rule 19 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to 'The Act'). Before going into the contentions raised, we may refer to the facts of this case.
2. The first accused, as commission agent of the Chinthamani Stores, of which the second accused is the Manager/licencee, had sold to the food Inspector 750 grams of Bengalgram for analysis at 1 P.M. on 29-3-1989. The said sample on analysis conducted on 4-5-1989 was found to be adulterated by the Public Analyst initially and the Director in the Central Food Laboratory later on 26-7-1989. Ext. P15 is the report of the Public Analyst and Ext. P17 is the report of the Director of Central Food Laboratory. According to Ext. P17 report, the sample does not conform to the standards of food grains as per Prevention of Food Adulteration Rules. Therefore, he was charged under Section 2(1-a) (a), f, 7(1) and 16(1)(a)(i) of the Act. He was convicted under Section 21(a)(f) of the Act. We are extracting a chart showing the contents of Ext. P17 report of the Central Food Laboratory and the prescribed standard as per P.F.A. Rules.
Parameter As per Ext. P15 Public Analyst report.
As per Ext. P17 report of the C.F.L. Prescribed standard Extraneous Organic matter Absent 0.13% Not exceeding 3% Extraneous Inorganic matter (Lumps of Earth and Stones) 0.33% by weight 0.24% Not exceeding 1% Insect damaged grains (weevilled grains) 46.72% by count Nil 10% Damaged grains Absent 74.9 5% Rodent hair and excreta Absent Nil 5 pieces per kg.
Moisture .6% 9.22% 16% Uric acid 384 parts per million 800.0 10 mgs per 100 gram last for colour Absent.
Coal tar dye Absent Appearance Not specified Insect damaged grains containing abundant living and dead insects Now it is well settled rule that Ext. P15 report stands superseded by Ext. P17 as once the report of the Public Analyst is superseded by the report of the Director, Central Food Laboratory, the first report of the Public analyst need not be looked into and the Court cannot legitimately make any comparison or draw any inference in view of the mandate of Sub-sections 3 and 5 of Section 13 of the Prevention of Food Adulteration Act and the matter is now settled by the Full Bench in the decision reported in 1987 (2) KLT 867 (supra). Section 13(2) of the Act confers valuable right on the accused to get the sample tested in the Central Food Laboratory and sample shall be kept fit for analysis also till that time. The contention that even if food is insect infested or contains in insects, prosecution will not lie as there is no evidence to show that it is unfit for human consumption is untenable because food articles were found to be not according to the prescribed standard. Once it is found that the food article is not having the prescribed minimum standard of purity, it will be deemed to be adulterated whether it is fit for human consumption or not. Section 2(1a) and (f) are as follows:
2.(1a) "adulterated" - an article of food shall be deemed to be adulterated-
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
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(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption;
The words in Section 2(f) or is otherwise unfit for human consumption is a residuary provision which would apply to a case not covered by or falling squarely within other clauses. Whether it is again unfit for human consumption need not be looked into in the food article is otherwise adulterated. The matter is settled in view of the decision in Municipal Corporation of Delhi v. Tek Chand Bhatia, 1980 SCC (Cri) 87. The above view was followed in State (Delhi Administration) v. Puran Mal, 1985 SCC (Cri) 289. Therefore, if the sample taken is not according to the standard prescribed under the Rules, it is deemed as adulterated (see Rule 2(1a)(m) also).
3. The question is whether at the time when the sample was taken it was adulterated or had the prescribed standard as per Rules. If it was not adulterated at that time, accused cannot be found guilty under the Act. It is the duty of the Food Inspector to see that the quality of the food articles, is not deteriorated after the sampling and what is analysed in the Laboratory is the food article of the same quality as at the time of purchase by the Food Inspector for the purpose of sampling. To achieve this purpose statute has provided certain safeguards. Rule 4 and 9 indicates that samples should be sent expeditiously for analysis. Rules 14 to 31 (Part V) deals with sealing, fastening and despatch of samples. Rules 14 to 17 are held to be mandatory. The words used in the above rule is 'shall'. The purpose of those rules are for ensuring that food articles at the time of purchasing samples kept in the same conditions at the time of analysis also without further decomposition or deteriorating in its quality. Another Rule enacted for this purpose is Rule 19.
Rule 19 reads as follows:
"19. Addition of preservatives to samples- Any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis."
Here admittedly no preservative was added. The contention of the revision petitioner is that since no preservative was added, there is a violation of Rule 19. According to him, Rule 19 even though used the word 'may' it is mandatory and 'may' should be read as 'shall'. In certain cases the word 'may' used can be interpreted as 'must' (See: ( Sub Divisional Magistrate, Delhi v. Ram Kali (AIR 1968 SC 1) and State (Delhi Administration v. L.K. Nangia 1980 (1) SCC 258). But a reading of this section would show that Rule 19 is only directory and not mandatory. When Rules 14 to 18 of the said Chapter uses the word "shall". Rule 19 purposefully uses the word "may". But it puts an obligation on the food Inspector to add preservative and if it is not added, it is for the Food Inspector to prove that non addition of preservative has not affected the quality of sample at the time of analysis. It may differ on the facts of each case. The quantity or the type of preservative to be used when food grains are sampled are not specified in the rules. In such circumstances, it is for the Public Analyst to add such preservative so that sample should not be decomposed. It is the duty of the Food Inspector to maintain and preserve the samples in a good and suitable condition till analysis. For that purpose, if the preservative is not specified to be added in the particular food article, the Food Inspector can use such permissible preservative so as to prevent further deterioration of the food article.
4. In Food Inspector v. Secretary, Ksheeravyavasaya Co operative Society (1997 K.L.T. 370) the court held that:
"10. Rule 19, as stated earlier, only says "may add." The object of this rule is to maintain and preserve the sample in a good and suitable condition for analysis. The preservative prescribed under Rule 20 to be used in the case of samples of any milk is a liquid commonly known as "Formalin" and the proportion prescribed is 0.1 ml. 2 drops for 25 ml. Then it says 2 drops it can be only approximate. The drop may be small or large. The quantity or the volume of each drop may vary depending upon the size of the pipette or instrument used for the purpose. Similarly, while referring to the strength of the preservative, this rule speaks of formalin as a liquid containing about 40% of formaldehyde in aqueous solution. It is important to note that the rule does not insist that the percentage of formaldehyde should be exactly or precisely 40%."
But the court found that the provisions of Rule 19 and 20 should be complied with at least substantially. The intention of Rule 19 is that the quality of the food article taken for sample is not further deteriorated because of the delay in time taken for analysis. In the case of delay, it is also to be considered whether any prejudice has been caused in not adding preservative. In the Mathukutty's case the Full Bench found that on the facts of the case no prejudice has been cause to the accused. If in the food grains taken for analysis, stones or other foreign matters or inorganic matters are found to be present in excess of permissible limit, it can be presumed that by non addition of preservative prejudice is caused to the accused. In such cases non-compliance of Rule 19 is not fatal. Here during the relevant time a small percentage of wevilled grains were permitted in the bengal gram (10%). In Ext. P15 report it was found to be more. But in the final report (Ext. P17) it was nil but report states that samples contained abundant living and dead insects.
5. Samples were taken on 29-3-1989. Ext. P17 reported is dated 26-7-1989. That means Analyst has taken four months time for analysis. Even the first Analysis report by the Public Analyst on 4-5-1989, after 1 1/2 months of the date of taking sample. So much delay has happened. The contention of the petitioner is that the living insects, might have increased or infestation might have occurred after sampling was done. No living insect were noted in Ext. P15 report. A definite question was asked to the Food Inspector whether because of the delay, there is a chance of insect present to grow and whether further deterioration will take place. The Food Inspector answered that he is not aware. In Criminal Jurisprudence, it is for the prosecution to prove the case. It is true that if the food article is not according to the prescribed standard, the persons dealing with the food are liable to be punished in view of the provisions of the P.F. Act. If proper sampling, sealing and fastening of the sample had been done, it is impossible for abundant living insects to get into the sample bottle from outside. The abundance of life in the sample seen by the Director, Central Food Laboratory must therefore may be due to the continuance of the life (in whatever form), which was available in the sample on the date of purchase. Conditions conducive to continuance of life and to increase and multiply must therefore have been available within the sample bottle. If multiplication had taken place inside the bottle on account of the failure of the Food Inspector to add a preservative at the time of sampling, the accused according to us must certainly be given the benefit of doubt. It is the duty of the Food Inspector to maintain the sample in a condition for analysis as it was on the date of sampling. For that preservative can be added. Of course, in certain cases considering the nature of food article which are not likely to decompose usually and nature of adulteration or where analysis is done on the next day or immediately, it may be possible for the Food Inspector to prove before court that non-addition of preservative caused no prejudice to the accused. But in this case Ext. P17 indicates that living insect grew in the said bottle. Substantial compliance of Rule 19 is necessary and it is the duty of the prosecution to prove that the sample remains in the same state of purity, nature and quality at the time of analysis also. In the case considered by the Full Bench decision in 1987 (2) KLT 867 (supra), the sample was analysed within two weeks. No contention was raised that there was violation of Rule 19. In that case, it was also held that the Director has identified the insect species detected as "Stegobium Pancium" and the court found that there were no chance of increased of infestation due to two weeks delay in sampling and in such cases the court held that:
"the presence or increase of the vice affecting the sample is due to natural causes or otherwise during storage is upon the accused. This burden can be discharged either by adducing evidence or relying on materials on record or on acceptable scientific treaties. An unsuccessful attempt has been made by the petitioner herein to discharge the burden". But the Full Bench set aside the conviction and sentence, the court held as follows:
"22. The courts below have not appreciated the question bearing in mind the standard of proof that is required to establish the defence plea. A preponderance of probability would entitle the accused to tilt the scales. We are, therefore, of the view that the conviction has to be set aside and the trial court directed to dispose of the case afresh on a proper consideration of only the issue after giving the accused further opportunity to adduce evidence, if any."
6. The effect of Rule 19 or absence of addition of preservative etc. were not considered by the Full Bench and on the facts of that case it was found that the Food Inspector has substantiated his primary burden and the accused was not able to show that any prejudice was caused to him. But in this case, the Food Inspector has not substantiated his primary burden to establish that sample taken on 26-3-1989 remained in the same condition with the same purity and the same quality at the time of analysis in spite of the undue delay. Here Ext. P17 itself shows that insects were growing after sampling was taken. When there is undue delay in examining the sample and when there is non-compliance of Rule 19, it is for the Food Inspector to establish that no prejudice is caused by non-addition of the preservative and that the quality of the food article was not deteriorated. The Food Inspector should send the samples for analysis without delay, even though the report cannot be said to be unreliable merely on the ground of delay in analysis so long as the sample continues in the same condition as held in Shambhu Dayal v. State of U.P. (AIR 1979 SC 310). Here it was not proved that the sample did not continue in the same conditions at the time of analysis as on the date of taking sample. If it is proved that sample remained fit for analysis in spite of delay, accused is in no way prejudice. (see: T.V. Usman v. Food Inspector, Tellicherry Municipality AIR 1974 SC 1818). Here Ext. P17 shows that deteriorative took place after sampling and insects grew after sampling and the accused was prejudiced. When sample remained in the same condition whether prejudice has been caused or not will depend upon the facts, evidence and circumstances of each case.
7. From the above discussion we arrive at the following conclusions:
a). Obligation of the Food Inspector to add a preservative to a sample of food articles purchased by him under Rule 19, especially in the absence of specification of such preservative under the Rules (like Rule 20 which prescribes for milk, cream etc.) is not mandatory but as directory.
b). It is the duty of the Food Inspector to see that nature, quality or purity of the food articles as at the time of purchase and sampling is kept preserved without any change at the time of analysis also.
c). For keeping and preserving the quality and nature of food article in the same condition till the time of analysis and to keep the food article fit for analysis, till the time of analysis, Rule 19 enables the food Inspector to add such permissible preservative to the sample even if the preservative to be added to the particular food article is not specified in the Act and Rules. Rule 21 supports this view. But failure to add preservative will not be fatal prosecution, if it is established that no prejudice is caused to the accused by non addition of preservative.
d). The sample taken for analysis shall be sent for analysis as expeditiously as provided under Section 11(3), 13 and Rules 7, 9B and 17 and analysis shall be done without much delay. Section 13(2) is a valuable right and it is the duty of the Food Inspector to see that sample is fit for analysis at the time of analysis by the Central Food Laboratory..
e). Various clauses under Section 2(1a)(f) of the Act shall be read disjunctively and mere proof of the articles being insects infested (beyond the prescribed limits) would be per se sufficient to attract the definition. It would not be necessary in such cases to prove further that the article was unfit for human consumption.
f). The report of the Public Analyst is superseded by the report of the Director, Central Food Laboratory and the above report cannot be said to be unreliable merely on the ground of delay in analysis so long as the sample continues in the same condition and no prejudice is caused due to delay.
g). Whether any prejudice has been caused or whether nature and quality of the sample was deteriorated at the time of analysis due to non addition of preservative is a matter to be decided by the court on the totality of evidence adduced in a given case.
8. On the facts of this case, we are of the opinion that the prosecution has failed to prove that the nature and quality of the foodgrains as on the date of sale and sampling have been preserved till the date of analysis. Living and dead insects are seen in the final report (Ext. P17) which are conspicuously absent in the first report (Ext. P15) show that prejudice has been caused to the accused due to non addition of preservative and defects in sampling and sealing the container, coupled with undue delay in analysis. At the time when sample was analysed by the Central Food Laboratory, it became unfit for analysis which accused prejudice to his valuable right under Section 13(2) of the Act. Hence we set aside the conviction and sentence imposed on the accused and the accused are acquitted.
The Crl. Revision Petition is allowed.