Food Inspector vs V. H. Kamath

K. T. Thomas J.

A Food Inspector, attached to the Vigilance Squad, purchased 450 grams of Coriander Whole from a shop keeper on 29-9-1984. The food article was divided into three equal parts following the procedure prescribed by law. When one part of the sample was analysed by the Public Analyst, it was found to be adulterated, as the insect damaged matter in it exceeded the permitted limit (As per item A. 05.08 in appendix B of the Prevention of Food Adulteration Rules insect damaged matter in Coriander (Dhania) Whole shall not exceed 5% by weight. The insect damaged matter in the sample was 20.3%). The Food Inspector of the local area (PW.3) instituted the complaint against the vendor. The trial court acquitted the vendor relying on the decision of the Full Bench of-this court in Food Inspector v. Prabhakaran (1982 K. L. T. 802). Hence this appeal by the complainant, Food Inspector. Since a larger bench of this court has over-ruled the dictum in Frabhakararis case (vide Mathukutty v. State of Kerala (1987 (2) L.L.T. 867) it was contended that the acquittal is liable to be reversed and the vendor is liable to be convicted..

Learned counsel for the respondent-vendor made an endeavour to sustain the order of acquittal on other grounds. First ground urged by him is that the prosecution is incompetent inasmuch as the complaint was not filed by the Food Inspector who took the sample. The Food Inspector (PW. 3) who filed the complaint in this case has been authorised to institute prosecution as per the provisions of Section 20(1) of the Prevention of Food Adulteration Act (for short the Act). This is evidenced by Ext. P17 notification. Hence there is no merit in the aforesaid contention. 1

The other ground sought to be-made out is the defence envisaged in Section 19 (2) of the Act. The stand of the accused is that the coriander whole sold tit the Food Inspector was purchased by the accused from M/s.-''Amruthammal & Sons, Verudanagar, a wholesale dealer There is no written warranty as such for such purchase from M/s Amruthammal & Sons. The accused had produced Ext. D1 which is only a delivery note in'' Form XX issued under the Tamil nadu General Sales Tax Act,'' 1959. Section'' 14 of the Act says that no manufacturer or distributor or dealer in any article of food, shall sell such Article to any vendor, unless he also give''s a warranty" in writing in the'' prescribed form. But the proviso added to the said section by Act 34 of 1976 has widened the ambit of "warranty by declaring that "a bill, cash memorandum or invoice, in respect of the sale of any, article of food, given by a manufacturer or distributor, or dealer in such article to the vendor thereof shall be deemed to be a warranty.......................". Ext D1 is neither a cash bill, nor a cash memorandum It is to be "considered whether it is an invoice. There is no particular definition for "invoice". The dictionary meaning of Invoice''s "a list of goods shipped or sent with price and charges"''. If Ext. D1 car be treated as ''an invoice, it fan also be treated as warranty in view of the widening of the scope of that term by the insertion of the proviso. Parliament by widening the scope of warranty, has evidently intended to afford more - protection to innocent vendors to whom the wholesale dealer or distributor'' or manufacturer does not issue warranty in" the'' prescribed form: When the proviso is thus'' understood of a realistic manner ''any document which answers, the'' requirement can be regarded as a warranty. Even before the introduction of the proviso, the Supreme Court, has suggested that, it., is the duty of the court to give a reasonable interpretation to the words in a warranty ( K. Ranganatha Reddiar Vs. The State of Kerala, ) It was observed thus. "The object of the Act is not defeated even if the traders use ordinary language of the trade or p popular language in warranties". After the amendment even invoice, will be deemed to be a warranty. A delivery note issued under the Sale''s Tax law can have the incidences of an invoice which also may be treated as warranty if such delivery note contains the necessary particulars. Ext. D1 contains all the particulars such as the name of the dealer the name and address of the consignee, the precise name, and quantity or weight of the article supplied and also the price thereof as well as the date of consignment. I am, therefore, inclined to treat Ext. D1 as warranty for the purpose of the proviso to Section 14.

The accused had succeeded in eliciting from PW 5 that the article sold to the food inspector was from the consignment covered by Ext. D1 and that the article was stored properly and was sold in the same state as he purchased it. Thus, the accused has reached very near to the periphery of success through the defence u/s 19 (2). Even so, that defence eludes like a mirage inasmuch as the accused failed to prove that M/s. Araruthammal & Sons is a licensed dealer. It is unfortunate that the accused did not make any effort to prove that his dealer had the licence to sell such article. So I am unable to concede that defence to him.

The last ground on which the learned counsel reposes hope is that there was contravention of Rule 7(3) of the Rules. The sub-rule reads thus: "The Public Analyst shall, within a period of 40 days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of such analysis in form No. III".

The Local (Health) Authority was examined in this case as Pw. 4. Hs has deposed that the Public Analyst''s report (Ext. P21) was received by him only on 9-11-1984 Public Analyst was examined in this case as CW.l. He admitted that the sample was received by him on 29-9-1984 Hence it cannot be disputed that the Local (Health) Authority received the report only after the period prescribed. A Division Bench of this court has held in Food Inspector v.. Moosa (1984 K. L. T. 80) that the time prescribed in Rule 7(3) is mandatory. Learned counsel for the appellant contended that the Public Analyst must be deemed to have complied with the requirement by despatching the report within the period fixed in the sub-rule. The expression used in the sub-rule is "deliver, to the Local Health Authority". The said expression is intended to carry the meaning that the person to whom it is delivered must be in receipt of the same. Then only it can be said that there was delivery of the report. The word to deliver''-'' in legal parlance means "to hand over formally". The delivery is complete only with the receipt of the delivered thing by the deliverer. So the act of despatch is only a part in affecting delivery of the article or thing. If the report was received by some one in the office of the Authority or by the agent of the Authority within the said period there would be substantial compliance with the requirement. No doubt, absence of evidence regarding the date of receipt would enable the court to presume that the despatched article would have been received by the service in due course vide Food Inspector v. Bhaskaran (1981 K. L. T. 429)). But, in a case where there is evidence regarding the date of receipt of the report, there is no need to act on presumptions. Learned counsel for the appellant then contended that mere infringement of Rule 7 (3) is not sufficient to pass a verdict of not guilty, unless prejudice has been caused to the vendor on account of the contravention. It cannot be contended in this case that no prejudice has been caused to the vendor. Here, the sample is reported to be insect infested. The standard prescribed for coriander permits insect damage matter upto a limit. The insects in the article would not normally remain idle or dormant. The passage of time will cause further deterioration of the food article like coriander if it is infested by insects. Therefore the delay is obviously to the detriment and prejudice of the accused.

I, therefore, decline to interfere with the order of acquittal and dismiss this appeal.