Madras High Court
State By: Food Inspector, Cumbam ... vs Jafar Ali on 16 February, 2004
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. State has come forward with this Appeal against the order of acquittal. Aggrieved over the order of acquittal in C.C. No. 2779 of 1994 on the file of Judicial Magistrate, Uthamapalayam, the State has come forward with this appeal. By the judgment dated 04.10.1995, the Respondent / Accused was acquitted of the offences under Ss. 7(i) & 16(1)A)(i) r/w Sec. 2(ia)(a)(b) and Rules 23, 28 and 29 of the Prevention of Food Adulteration Act, 1954.
2. The relevant facts necessitated for disposal of this appeal could be stated thus:- P.W.1 (Vellaikkannu) Food Inspector is authorised under relevant Government Orders to take food samples and also launch prosecution. P.W.2 - Nagarajan is the Sanitary Supervisor. On 26.09.1994 12.30 noon, P.Ws.1 and 2 inspected the grocery shop bearing Door No.14-A, Palace Bazaar Street (muz;kidf;filj; bjU), run by the Accused. The Accused was attending to the business. P.W.1 ascertained the ownership of the Accused of the grocery shop and introduced himself to the Accused.
3. On the wooden rack, P.W.1 found packets of Sambar Powder kept in a big bundle meant for sale. When the bundle was opened, it was found to be containing 20 plastic packets of Sambar Powder each containing 50 grams. In the packets, both in English and Tamil, it was written "Super Rani Sambar Powder, K.A.L. Industries, Gudalur, Pin:626518". Further, the ingredients were also printed as "Corrianderseed, Chillies, Dhal, Turmeric Cuminseed, Assobitetu, Salt 5%. We hereby certified that foods backed in this packet is warranted to be of the nature and quality which is purport to be guaranteed for 6 months. Date of Manufacturing April 1994."
4. One Sulthan Moideen P.W.3 was found to be working in the shop. P.W.1 asked him to be a witness for taking sample. Out of 20 packets of Sambar Powder, P.W.1 purchased 9 packets for Rs.18/-. Ex.P.3 is the cash receipt. He divided the nine packets into three packets. Each samples was separately packed and seal was affixed with Local Health Authority code No.2/05 Sl.No.14/1995. P.W.1 also affixed his specimen seal distinctly to be seen 'P.V.K.' (indicating his name P.Vellaikkannu). In compliance with Sec. 10 of the Act, all the three samples were neatly packed. On the sample packets, signature of the Accused and witness P.W.3 - Sultan Moideen was obtained. To that effect, statement of the Accused (Ex.P.4) was obtained. P.Ws.2 and 3 also signed in Ex.P.4 Statement of the Accused.
5. Form VII (Ex.P.5) was prepared. Seal was affixed in Ex.P.5. One sample packet along with Form VII was sent to the Public Analyst in Madras. Under intimation to Local Health Authority, other two samples and Form VII were sent to Local Health Authority, who received the same under Ex.P.9 Acknowledgement. Ex.P.10 is the Postal Receipt for sending the sample to the Public Analyst, who received the sample under Ex.P.11 Acknowledgement.
6. Form VI was sent to the manufacturer Super Rani Sambar Powder, K.A.L. Industries by Registered Post with Acknowledgement Due under covering letter Ex.P.12. The same was returned under Ex.P.13.
7. On 18.10.1994, P.W.1 has sent Ex.P.14 Notice to the Accused calling upon him to furnish the correct name and address of the manufacturer, viz. Super Rani Sambar Powder, K.A.L. Industries. The Accused had received the same. Despite receipt of the notice, the Accused had not furnished the address of the manufacturer.
8. Form III (Ex.P.15 dated 01.11.1994) was received by P.W.1 on 07.11.1994. The sample was found to be containing " a coaltar colour: ORANGE RN not permitted for use in any food. Orange RN is injurious to health ". The Public Analyst was of the opinion that the sample was adulterated.
9. The Complainant / P.W.1 sought for the details of the Factory K.A.L. Industries by sending Ex.P.16 Notice to Gudalur Municipality. The Gudalur Town Panchayat, had in turn intimated Cumbam Municipality that no licence was granted to K.A.L. Industries (Ex.P.17). The details of the manufacturer were not forthcoming from the Accused also.
10. Thereafter, criminal complaint was filed against the Accused for contravention of the provisions under Ss. 7(i) & 16(1)A)(i) r/w Sec. 2(ia)(a)(b) and Rules 23, 28 and 29 of the Prevention of Food Adulteration Act, 1954 on 26.12.1994 under intimation to the Local Health Authority. After filing of the complaint, in compliance with Sec. 13(2) of the Act, copy of the complaint along with Form III and Report of the Public Analyst were sent to the Accused through P.W.2. The same was served upon the Accused on 28.12.1994.
11. To substantiate the charges against the Accused in the trial Court, P.Ws.1 to 3 were examined. Exs.P.1 to P.29 were marked. The defence is one of total denial. According to the Accused, a false case is foisted against him, deliberately omitting to file the case against the manufacturer.
12. Upon consideration of the evidence, the trial Court acquitted the Accused raising doubts upon the prosecution case mainly on the ground of non-impleading of the manufacturer K.A.L. Industries. The trial Court also found that though the name of the manufacturer K.A.L. Industries was clearly stated in the Sambar Powder Packets, no appropriate steps were taken for tracing out the manufacturer and the case filed against the vendor the Accused is not sustainable. Referring to certain answers elicited from the evidence of P.Ws.2 and 3, the trial Court also raised doubts on the manner of taking the sample.
13. Assailing the reasonings of the trial Court, the learned Government Advocate has submitted that the trial Court has failed to note Sec. 14-A of Prevention of Food Adulteration Act (for short, herein after referred as (P.F.A. Act), where the burden is cast upon the vendor to disclose the name, address and other particulars of the manufacturer and violation of Sec. 14-A of P.F.A. Act was not taken note of by the trial Court. Taking me through the evidence of P.Ws.1 to 3, the learned Government Advocate further submitted that appropriate steps were taken by the Food Inspector to trace out the name and address of the manufacturer by issuance of Ex.P.14 Notice to the Accused and also notice to the Cumbam Municipality, which was not properly appreciated by the trial Court and the trial Court erred in faulting the prosecution for non-impleading the manufacturer as the Accused.
14. The learned counsel for the Accused has drawn the attention of the Court Sec. 19(2) of the P.F.A. Act and submitted that as per Sec. 19(2), under which the vendor is exempted under warranty and when the Accused has purchased the products under warranty, the Accused shall not be deemed to have committed the offence. It is further submitted that the Food Inspector / Complainant was well aware of the address of the manufacturer and deliberately omitted to implead the manufacturer as the Accused and that the trial Court has rightly acquitted the Accused which does not warrant interference.
15. Whether the reasonings for acquittal suffer from serious and substantial error warranting interference? is the short point that arises for consideration in this appeal.
16. The sample packet of Sambar Powder was sent for Public Analyst. The sample was found to be adulterated since sample was found to be containing " a coaltar colour: ORANGE RN not permitted for use in any food. Orange RN is injurious to health ".
" Rule 23 read with Rule 29 of the PRA Rules 1955 prohibits the addition of even permitted coaltar food colours in any food other than those enumerated therein. rhk;ghh; bgho is not in the list of foods enumerated under Rule 29. Rule 28 of the PFA Rules 1955 prohibits the addition to food of any coaltar colour other than those permitted therein... (Vide Ex.P.15) Thus there is no denying that the sample of Sambar Powder taken from the shop of the Accused was an adulterated one.
17. The Packets of Sambar Powder were found to be containing the name of the manufacturer in Tamil and English on either side of the packets as " R{g;gh; uhzp rhk;ghh; bgho , K.A.L. Industries, flY}h; Pincode 626 518" . The ingredients "Corrianderseed, Chillies, Dhal, Turmeric Cuminseed, Assobitetu, Salt 5%. We hereby certified that foods backed in this packet is warranted to be of the nature and quality which is purport to be guaranteed for 6 months. Date of Manufacturing April 1994 " were also printed on both sides of the packets of Sambar Powder. The Accused had not produced any cash memo, bill or invoice issued by the manufacturer or distributor or the dealer nor has he disclosed the name of the manufacturer who sold and from whom the Accused had produced the Sambar Powder.
18. Ex.P.14 Notice (dated 19.10.1994) was sent to the Accused calling upon him to furnish the name and address of the manufacturer and also the cash receipt for purchase of the Sambar Powder. Ex.P.14 Notice was personally served upon the Accused. Though the Accused had received the same, the details of the manufacturer was not forthcoming.
19. Since the details of the manufacturer were not forthcoming, P.W.1 Food Inspector sent Ex.P.17 Letter to Cumbam Municipality, requesting the Municipality to furnish details of the Factory Super Rani Sambar Power, the manufacturer's name, address and other particulars. P.W.1 had also addressed the Gudalur Town Panchayat. Gudalur Town Panchayat has informed the Cumbam Municipality (under Ex.P.20) that no licence was issued to K.A.L. Industries from Gudalur Town Panchayat for the year 1994-1995. Thereafter, the complaint was filed against the Accused for violation of Ss. 7(i) & 16(1)A)(i) r/w Sec. 2(ia)(a)(b) and Rules 23, 28 and 29 of the Prevention of Food Adulteration Act, 1954.
20. It is to be noted that P.W.1 Food Inspector is not duty bound to collect the address of the manufacturer. While so, finding of the trial Court @mjw;F gpd;g[k; fk;gk; efuhl;rpiar; nrh;e;j Mizahsnuh my;yJ th/rh/1 czt[ Ma;thsnuh my;yJ TlY}h; ngU:uhl;rp eph;thf mjpfhhpnah jahhpg;ghsh; ahh; vd;gij mwpe;J bfhs;tjw;F ve;j eltof;ifa[k; vLj;jjhf bjhpatpy;iy/ jahhpg;ghsh; ahh; vd;gijj; bjhpahknyna ,e;j tHf;fpd; vjphp kPJ kl;Lk; Fw;w mwpf;if jhf;fy; bra;Js;sJ/ czt[ fyg;gl jilr;rl;lj;jpy; Twg;gl;Ls;s tpjpKiwfSf;F Kuzhf cs;sJ/@ is palpable erroneous. The above reasonings and findings suffer from substantial error. It is in ignorance of Sec. 14-A of P.F.A. Act. The learned Magistrate has not at all taken note of Sec. 14-A of P.F.A. Act, under which the Accused is duty bound to disclose the name, address and other particulars of the manufacturer.
21. In the case of State of Maharashtra vs. Rahman (1993 Mah. LT 881 Bom.) it has been held that Sec. 14-A prescribes a duty upon a vendor to disclose to the Food Inspector when required, the name, address and other particulars of the person from whom he purchased the article food. When a Food Inspector takes samples he shall issue notice not only to person from whom he has taken sample, but also to his vendor whose name and particulars are disclosed under Sec. 14-A of the Act. When the accused retailer did not disclose the name of the manufacturer from whom he has purchased the article of adulterated food, he cannot fault the prosecution for not proceeding against the manufacturer. When the Accused is duty bound to disclose the name of the manufacturer under Sec. 14-A of P.F.A. Act, the reasonings of the trial Court faulting the prosecution cannot at all be sustained.
Sec. 16(1)(c) is the penal provision for violation of Sec. 14-A of P.F.A. Act. Sec. 16(1)(c) reads thus:-
" If any person contravenes the provisions of Section 14 or Section 14-A, he shall be punishable with imprisonment for a term which may extent to six months and with fine which shall not be less than five hundred rupees."
23. When violation of Sec. 14-A of P.F.A. Act is punishable under Sec. 16(1)(c), the Accused ought to have been convicted under Ss. 7(i) & 16(1)A)(i) r/w Sec. 2(ia)(a)(b) of the Prevention of Food Adulteration Act, 1954. But the trial Court committed substantial error in acquitting the Accused without taking note of Sec. 14-A and Sec. 16(1)(c) of P.F.A. Act.
24. Though the order of acquittal suffers from serious infirmity for more than one reason, the order of acquittal could not be interfered with by this Court. As discussed earlier, violation of Sec. 14-A of P.F.A. Act is punishable under Sec. 16(1)(c) of the Act. Violation of 14-A r/w 16(1)(c) of the Act is not at all averred in the complaint, nor the Accused is charged for the violation of 14-A r/w 16(1)(c) of the Act. Since there is no charge framed on that count, the Accused cannot be found guilty at this stage, since an opportunity has to be given to him for the violation of Sec. 14-A r/w 16(1)(c) of P.F.A. Act.
25. The question arises whether the matter could be remanded for fresh trial at this stage. The impugned judgment is of the year 1995. Altering the charge into Sec. 14-A r/w 16(1)(c) of P.F.A. Act and de nova would be a long drawn process at this distant point of time. We may also refer to 1998 SCC Crl.1003 (State of Maharashtra v. Gopalparasad Govindprasad Agarwal), where the Supreme Court declined to interfere with the order of acquittal though the reasonings for acquittal were found to be perverse.
26. Yet another reason could be pointed out for not interfering with the order of acquittal. Form III Notice (dated 01.11.1994) Ex.P.15 was received by the Local Health Authority on 07.11.1994. The complaint was not filed immediately; But the complaint was filed only on 26.12.1994. There was no immediate launching of the prosecution. The Complainant / Food Inspector was trying to trace out the name of the manufacturer during the relevant interval. When details of the manufacturer were not forthcoming from the Accused, the Complainant / Food Inspector ought to have promptly filed the complaint including violation of Sec. 14-A r/w 16(1)(c) of P.F.A. Act also. But that was also not done.
27. Though the order of acquittal suffers from infirmity, for the reasons stated above, this Court is not inclined to interfere with the order of acquittal and in the circumstances of the case, the matter cannot be remanded for fresh trial.
28. For the reasons stated above, this appeal is dismissed.