Food Inspector vs T. Sankaran

K. G. Balakrishnan J.

This is an appeal preferred by the Food Inspector attached to Thirumitta code Panchayat against the acquittal of the accused in S. T. case No. 337 of 1988 on the file of the Judicial Magistrate of the I Class, Pattambi. On 3-12-87 at about 11:30 a.m. the Food Inspector purchased 6 packets of turmeric powder each weighting 100 grams. Three samples were made out of these six packets and Ext. P2 mahazar was prepared. As each packet was identically labelled the sealed packets were not opened and the contents were not mixed. One sample consisted of 2 packets and the sample was sent to the Public Analyst in a sealed cover. The Public Analyst examined the samples and found that the samples contained not less than 15% of corn starch. The copy of the report was sent to the accused and later prosecution was launched against him.

On the side of the prosecution PWs 1 to 5 were examined. The accused contended that turmeric powder was not a food article, but it is used as a cosmetic substance. On behalf of the accused it was further contended that the Food Inspector violated 11(1)(b) of the Prevention of Food Adulteration Act, as the Food Inspector did not mix the contents of the packets and then divide the same into three samples. This plea was accepted by the court below and the accused was acquitted. The finding of the learned Magistrate is challenged by the complainant.

PW1, the Food Inspector, deposed that he purchased six packets of turmeric powder from the shop of the accused. He further stated that the six packets contained identical label declarations and one such label was produced before the court below. Even though the same was not marked by the court below, it is seen in the records. The accused has also no case that the packets did not contain any label. The sample label produced in court showed the following details. "Top STAR Turmeric powder

The counsel for the respondent contended that this by itself was not a sufficient label declaration, as under Rule 32 of the P. F. A. Rules it is required that the contents of the label should specify the name, trade name or description of food contained in the package, the name and business address of the manufacturer or importer or vendor or packer. It is true that Rule 32 requires that all the details should be furnished in the label to be fixed on the packet. But these are all matters to be done by the manufacturer. If the label was not sufficient it is the fault of the manufacturer or to the seller and the accused cannot reap the benefit out the non-compliance of Rule 32. It is important to note that under Rule 42 the forms of labels are given, for example in the case of'' coffee-chicory mixture the label need only specify the following details "Coffee blended with Chicory

This mixture contains:

coffee per cent".

chicory per cent

In this case the label contained the description, the net weight of the contents, the price of the food article and No. CBE-26 which indicated the manufacturer''s code number. The accused has no case that all the other packets did not contain similar label declarations. The evidence of PW1 is not seen challenged by the accused. In the face of this evidence the learned Magistrate seriously erred in holding that section 11 (1)(b) was not complied with. Under Rule 22-A where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration. The contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample. So, there was no necessity for the Food Inspector to temper with the sealed packets and to mix the contents of the packets together to prepare three samples. There was no violation of section 11 (i) (b) of the P.F.A. Act.

A similar question came up for consideration before a Division Bench of this Court in Food Inspector v Abootty (1989 (2) K. L. T. 578). There the Food Inspector purchased 600 grams of coriander powder from the accused. The article was in six packets containing 100 grams each. The Food Inspector divided these into three packets and the packets were treated as parts of the sample. The trial court held that there was violation of Rule 22A of the Rules. on behalf of the Bench His Lordship U. L. Bhat held :

Neither S. 10 nor S. 11 of the Act expressly require the sample to be homogeneous or the three parts of the sample to be similar in quality. But considering the purpose of division of the sample into three parts, it appears reasonable to conclude '' that three parts must be similar in nature or homogeneous. This is to ensure that the Public Analyst and the Central Food Laboratory analyze part of the sample which are similar in nature and content. At the same time note has to be taken of the fact that neither the Act nor the Rules specifically enjoin the Food Inspector to conduct any particular operation or adopt any particular procedure in order to render the sample homogeneous. This is evidently because in a variety of cases the Food Inspector and the court can presume the sample to be homogeneous without any particular procedure being adopted by the Food Inspector Several food articles like grains, condiments, biscuits, chocolates, butter etc, must be presumed to be homogeneous in nature.

It was further held:

The rule lays down two conditions, namely, (i) the article of food must, be in sealed contained and (ii) the: sealed containers must have identifical label declarations. The Rule specifically gives power to the. Food Inspector to adopt a particular procedure and lays down the conditions in the presence of which it could be invoked That being so, the conditions have to be satisfied in order to render the provision applicable. The word "sealed" used in the expression "sealed container" cannot be taken to mean seat affixed with wax or other material. A container may be closed with a, plunge or. stopper if it is made f paper polythene or cardbord or similar material it may be closed by folding: one'' end and fastening it to some other part of the container Cork plug or stopper cannot be used in such a container. Nevertheless in order that such a container can be regarded a closed container it must be closed in such a manner that access to the contents be impossible, without breaking the fastening. If the access to the contents cannot be had without breaking the fastening, the container cannot be regarded as sealed container.

Ext. P11 is the certificate issued by the Public Analyst. It shows that there was not less than 15% of corn starch The presence of any extraneous matter in turmeric powder is prohibited by the P.F.A. Act. Therefore, it is clear that the food article sold by the accused was adulterated The learned counsel for the respondent submitted that the accused is a petty provision shop owner and he purchased the turmeric powder from a trader: in Tamil Nadu. PWl is also of the view that the accused was not the manufacturer, but he was of the opinion that the accused might have purchased the food article from some other manufacturer. Unfortunately the accused could not produce the bill or any other warranty to show that he had purchased the article from a manufacturer. In view of the above circumstances. I set aside the acquittal However, I feel that the accused being a 70 year old man, it is not proper to award him a custodial sentence. The accused is sentenced to pay a fins of Rs. 2000/- in default of payment of fine to undergo simple imprisonment for a period of 3 months.