Abdul Azeez vs Food Inspector, Ulundurpet

This is a revision petition against the conviction and sentence. The revision petitioner is a small grocery merchant in Ulundurpet. His shop was

visited by the Food Inspector, Ulundurpet Town Panchayat on 7-12-1980 at about 9 a.m. The Food Inspector purchased gingili oil and sent it for

analysis after complying with all the formalities prescribed under law. Upon the report of the Public Analyst to the effect that the oil contained 4.4%

of celeic acid as against the maximum of 3.0% prescribed by clause A.17(11) to Appenedix B to the Prevention of Food Adulteration Rules, 1955

(hereinafter referred to as the Rules) and also that the said oil was unfit for human consumption, the Food Inspector filed on 21-1-1981 complaint

before the sub Divisional Judicial Magistrate, Ulundurpet, South Arcot Division. Charges were framed against the revision petitioner for offences

punishable (under Ss. 2(1a)(a)(f) and 7(1) read with S. 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act).

The trial Court, by its judgment dated 14-5-1981, found the accused guilty, convicted him thereunder and sentenced him to suffer rigorous

imprisonment for nine months. On appeal, the Court of Session, South Arcot Division at cuddalore, confirmed both the conviction and the

sentence by its judgment dt. 18-8-1983. It is the correctness of that judgment, which is challenged by the accused in this revision petition.

The only ground urged before me is that the notice under S. 13(2) of the Act was sent to him prior to the institution of the complaint and as

such, the proceeding was vitiated. As per the rules, a copy of the report of the Public Analyst is to be sent to the concerned person, whether the

article is found to be adulterated or not. When the article is not adulterated, under the proviso to R. 9(a) of the Rules, it should be done within ten

days from the date of receipt of the report from the Public Analyst. If, on the contrary, the result of the Analyst revealed the commission of an

offence the report is to sent as per the provisions of the main clause to R. 9(a) of the Rules and S. 13(2) of the Act, immediately after the institution

of the proceedings. The purpose of sending a copy of the report to the accused person is twofold. One is, for preparation of the defence by the

accused in general, and the other is, to enable the accused to apply to the Court concerned to get another sample of article of food kept by the

Local (Health) Authority analysed by the Central Food Laboratory. Since such application his to be filed before the Court where the prosecution is

pending and since it has to be done within ten days from the date of receipt of the analysis report, the Food Inspector has to necessarily intimate to

the accused the particulars of the Court where the prosecution has been launched. So, the notice under S. 13(2) of the Act, and under R. 9(a) of

the Rules, can be given only after the institution of the prosecution before the Court. This is what is stated in S. 13(2) of the Act and restated with

emphasis in R. 9(a) of the Rules. The point was also considered elaborately in a Bench decision of this Court in Kandasami Vs. Food Inspector,

Athoor, , where it was held that the notice under S. 13(2) of the Act should be given after the institution of the prosecution and not prior to it.

The learned counsel for revision petitioner would contend that in this case, though the complaint was presented on 21-1-1981, it was returned

by the Magistrate on 24-1-1981, and it was represented on 28-1-1981, and taken on file by the Magistrate only on 2-2-1981, that the date of the

''institution'' of the prosecution being the date on which the complaint was taken on file by the Magistrate, i.e., 2-2-1981, in this case, the notice

sent to the accused on 23-1-1981, i.e., prior to the institution of the prosecution is against the provisions of the Act and that therefore the

prosecution is vitiated. On the other hand, the learned Public Prosecutor contended that date of institution of the prosecution is the date on which

the complaint is presented initially by the Food Inspector before the Magistrate and not the date on which the Magistrate takes cognisance of the

complaint, and that, therefore, in this case the notice dated 23-1-1981, after the date of presentation of the complaint by the Food Inspector

before the Magistrate on 21-1-1981 is quite in order.

Therefore, we have to decide as to what ''institution'' amounts within the meaning of S. 13(2) of the Act and R. 9(a) of the Rules, the word

''instituted'' is not defined in the Act. Therefore, it should be taken in its normal and ordinary meaning. The Food Inspector is statutorily

empowered to initiate prosecution under the Act. Therefore, the lodging of the complaint by the competent authority before the concerned

Magistrate would be ''instituting'' the prosecution. In fact, prosecution is not instituted by the Magistrate, it is instituted by others before him. It

would be making violence to the text of the statute to say that only when the Magistrate takes cognisance of the complaint the prosecution could be

said to have been instituted. Further, as per S. 13(2) of the Act and R. 9(a) of the Rules, the Local (Health) Authority has to forward a copy of the

report of the Public Analyst immediately after the institution of the prosecution. That authority is not informed of the date of the Magistrate taking

on file the complaint. Therefore, construing the ''date of institution'' to be the ''date on which the Magistrate takes on file the complaint'' would put

the Local (Health) Authority in an impossible situation of being unaware of the institution of the prosecution and still bound to forward a copy of the

report to the person concerned immediately after the institution of the prosecution.

If the date of institution is considered, to be the date of filing of complaint, a situation may arise in which the accused person would have filed his

application to have the sample of food kept by the Local (Health) Authority analysed by the Central Food Laboratory before the Magistrate takes

cognisance of the offence. In such a case, the Magistrate will have to take up that application as soon as he has taken the case on file. If he refuses

to take cognisance of the complaint, he will inform the accused accordingly and no prejudice whatsoever will be caused to the accused in the

process. On the contrary, if the date of taking cognisance of the complaint by the Magistrate, which the complainant is unaware of, is to be

construed to be the date of institution, then there will be a deadlock in the proceedings since the Local (Health) Authority would be at a loss to

know as to when it should send the copy of the report of the Public Analyst to the accused person. If it is sent prior to the Magistrate taking the

complaint on file, his action would be against the law; if it is not sent immediately after that, again his action would be against law.

The learned counsel for the revision petitioner placed before me a decision of this Court in Veerappan v. State, (1986) 2 FAC 54, wherein it

has been held that the institution would mean the date on which the Court takes cognizance of the alleged offence. In that case, the occurrence had

taken place on 8th September 1978, the complaint was filed on 18th November 1978, and taken on file on 19th November 1978. The case of the

accused therein was that there was a long delay between the date of occurrence and the notice served on the accused person. It was held that the

date of ''institution'' would mean only the date on which the Court takes cognizance of the alleged offence and not the date of occurrence. In that

decision, it did not make any difference, whether it was the date of complaint, or the date of taking cognisance by the Magistrate, because the

delay between the date of occurrence on one side, and both these days, on the other was practically the same and the date of sending the notice

was subsequent to both these dates. The main question decided in that case is that the date of occurrence is not the date of institution. The question

whether the date of lodging the complaint or the date of taking on file by the Magistrate is the date of institution, was not gone into and it was also

not necessary in the circumstances of that case to go into it. For the limited purpose of that case, the date of taking on file by the Magistrate was

taken as the date of institution on the basis of an earlier decision of the Supreme Court in Jamuna Singh and Others Vs. Bhadai Sah, .

In the latter case, the Magistrate, after completing the examination of the complainant on oath under S. 200 of the old Criminal P.C. ordered

investigation by the police. The police treated the copy of the petition as the first information report and laid the ''charge sheet'' against the accused

persons. A problem arose in respect of the right of appeal under S. 417(3) of the old Code, as per which, the appeal is limited only to cases

instituted upon a complaint. The question was whether the matter was to be treated as one instituted upon a private complaint or one instituted

upon a police report. The Supreme Court held that the Magistrate after completing the examination of the complainant, should have ordered

investigation by the police only under S. 202 and not under S. 156 of the Code, and that the report filed by the Police Officer, though purporting to

be a report under S. 173 should be treated as a report under S. 202 and that once the Magistrate had taken on file the complaint, the case cannot

be treated as a case taken on file on police report. In that case, it was not really the date of institution which did matter, but it is the manner in

which the case was instituted that acquired significance, to find out whether it was instituted upon a private complaint or upon a police report.

Deciding on that aspect, the court gave the ruling that the case was one instituted upon a complaint since as it came into existence in the

Magistrate''s file from the time of his taking cognisance of the same. The matter before us is entirely different. We have to understand the word

''instituted'' in respect of a complaint by a statutory authority entitled to file the complaint before the Magistrate in order to know what the word

''institution'' means in relation to the time for sending notice under S. 13(2) of the Act. As pointed out earlier, since the Local (Health) Authority will

know only the time of the filing of the complaint and will not be aware of the date when the Magistrate would take cognisance of the same, the only

construction possible is that the institution of the proceedings is when the complainant first presents the complaint before the Magistrate. In this

connection, it will also be useful to refer to S. 20 of the same Act, where the word ''instituted'' is again used. That section reads as follows -

Cognizance and trial of offences :-

(1) No prosecution for an offence under this Act, not being an offence under S. 14 or 14A shall be instituted except by, or with the written consent

of the Central Government or the State Government or a person authorised in this behalf by general or special order, by the Central Government

or the State Government"".

The section will clearly show that the institution takes place at the time when the authority initiates the proceedings by filing its complaint and not at

the time when the Court takes cognisance of the complaint. Therefore, in this case, the notice issued to the accused on 23-1-1981, after the

presentation of the complaint by the competent authority before the Magistrate on 21-1-1981 is quite in order.

The learned counsel for the revision petitioner would say that the petitioner is a small vendor, who was selling only six litres of oil per week in a

small village, that he used to get the oil from a supplier at Vriddhachalam and that he did not know the provisions of law in order to establish his

non-involvement in the adulteration of the food article arid that therefore, a lenient view may be taken in the matter. Though the conviction cannot

be affected on account of one''s ignorance of law and his status as a small merchant, in the determination of sentence, these factors may be taken

into consideration. The trial court has imposed a punishment of rigorous imprisonment for a period of nine months, which I think can be reduced to

the minimum prescribed in the Act i.e., six months.

In the result, the conviction is confirmed, but the sentence of imprisonment is reduced to six months, rigorous imprisonment, with this

modification in sentence, the revision petition is dismissed.

Order accordingly.