Food Inspector, Perumbavoor Municipality vs K. G. Purushothaman Nair

T. Chandrasekhara Menon

I think in this case I should emphasise what the Supreme Court said in Ganeshmal Jashraj Vs. Government of Gujarat and Another, . There speaking for the Court Justice Bhagwati quoted from the anonymous poet:

The law looks up both man and woman Who steals the goose from off the common But lets the greater felon loose Who steals the common from the goose"

There the learned Judge said that most of the cases of food adulteration which come to the courts are cases directed against small tradesmen such as grocers milkvendors etc. It is common knowledge, the Judge continued, that these small tradesmen purchase the food stuff sold by them from the wholesalers and sometimes even directly from the manufacturers and more often than not the adulteration is made either by the wholesalers or by the maunfacturers. Ordinarily, Justice Bhagwati points out. it is not the small retailers who adulterate the article of food sold by them. Yet it is only the small retailers who are caught by the food inspectors and the investigative machinery of the food department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufactures. According to the learned Judge, which I think represent the true state of facts, the small tradesmen who eke out a precarious existence living almost from hand to mouth are sent to jail for selling food stuff which is often enough not adulterated by them and the wholesalers and manufacturers who really adulterate the food stuff and fatten themselves on the misery of others escape the arm of the law. His Lordship pointed out that a wrong impression is being created on the public mind that the law is being properly enforced, whereas in fact what is really happening is that it is only the small tradesmen who are quite often not themselves responsible for adulteration who are caught and sent to jail, There is a gross indifference and inaction, which allows wholesalers and manufacturers to carry on their nefarious activities, untouched and unaffected by the penal law. There in regard to the duty of the Food Inspector it is pointed out:

We fail to see why at the time of taking samples from the small retailer, the food insepctors do not care to find out from which wholesaler or manufacturer he had purchased the particular food stuff and after ascertaining the name of such wholesaler or manufacturer, proceed immediately to the place of business of such wholesaler or manufacturer and take samples for the purpose of finding out whether the food stuff which is being sold by him is adulterated or not.

Even in cases where the manufacturer or wholesaler is out of bounds for the prosecution being outside the jurisdiction nothing prevents the prosecutor to get those manufacturers or wholesalers impleded in the proceeding, for which there is ample power given to the court u/s 20A of the Prevention of Food Adulteration Act. It is necessary the learned Magistrate should also take into account this provision:

20A. Power of court to implead manufacturer etc. - Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it. that such manufacturer, distributor or dealer is also concerned with that offence, then the court may, notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal Procedure, 1973 (2 of 1974), or in Section 20 proceed against him as though a prosecution had been instituted against him u/s 20 .

In this case on 20-1-1978 the complainant, Food Inspector of the Perumbavoor Municipality, bought from the respondent-accused 600 gms. (packets of 100 gms. each) of corriandor powder, from out of a larger quantity stocked and exhibited for sale in his shop. Upon analysis the sample was found to contain 9 percent wheat flour and accordingly adulterated.

The accused was prosecuted u/s 7 read with Section 2 , Clause (ia), sub-clauses (a), (b), (c) and (m), read with Section 16(1) (a) of the Prevention of Food Adulteration Act 1954 before the Judicial First Class Magistrate, Perumbavoor. It is true that there was no dispute about the sale of corriander powder or the correctness of the Public Analyst''s report. What the accused raised was that he purchased the corriander powder from ''Jasmin Trade Mark.'' Muvattupuzha, under a warranty set out in Ext. P-10 label appearing in the packets of the corriander powder. Ext. P-10 certainly contains a warranty but not in accordance with the statutory form or duly signed. Name of the manufacturer also is not there. According to The accused, when he was questioned u/s 313 of the Cr. P.C. he stated that he had told the Food Inspector that the purchase bill had been taken to his house for the purpose of writing the accounts and it was not in the shop at that time. He would also state that he had showed the purchase bill to the Food Inspector subsequently, when he was told he need produce it in court. The Food Inspector, when he was examined, admits Chat the accused had told him that the purchase bill was not there at that time and the accused had taken it at his house. However, he would also state that he was not given the name of the proprietor of Jasmin Trade Mark, though the name of Jasmin Trade Mark appears in Ext. P-10. The Food Inspector, when he was examined as P.W. 3, furher states: "Jasmine Trade Mark In the light of what the Supreme Court had said, I have to state that the Food Inspector has not properly done his duty in the matter. The learned Magistrate explains why he did not implead the manufacturer u/s 20A . What he states is:

In this case the evidence of PW3 itself will show that the accused had told him that he had purchased the corriander powder from Jasmine Trade Mark, Moo-vattupuzha as per cash bill and he was convinced that it was sold in the same condition in which it was supplied to the accused. So the accused now before court has discharged his liability. If the accused had not shown the cash bill to the Food Inspector he could have proceeded against the manufacturer when the packets contained lable declaration. He ought to have ascertained the name of the manufacturer and impleaded him as an accused. When a petition was filed by the accused now before court under Sec. 20A of the P.F.A. Act requesting the court to implead the manufacturer also the prosecution conveniently agreed to that. But the petition was filed after closing the evidence and questioning the accused under Sec. 313 Crl. P.C. Till that time the prosecution did not make any representation before court for taking steps to implead the manufacturer. At this stage on a representation made by the accused I am not convinced that the lacuna of the prosecution should be filled up by the court. If the prosecution had no opportunity to know and ascertain the manufacturer then the court would have taken steps for impleading the manufacturer also. No satisfactory explanation has been given by the Food Inspector for not taking steps to implead the manufacturer also in this case.

It is in the above circumstances that the Judicial First Class Magistrate acquitted the accused. I see no reason in the light of what the Supreme Court had stated to interfere with this order of acquittal. I cannot find the learned Magistrate in error in not allowing the impleading at a late stage. Section 20A contemplates action which can only be taken during the course of the trial. A separate trial would require written consent u/s 20 . The addition of an accused u/s 20A constitutes an expressly laid down exception to the requirements of sanction u/s 20 . The object of this section seems to be that the prosecution of a person impleaded as an accused in the course of a trial does not require a separate sanction. The Section also enables the court to find out the really guilty parties. However it is only an enabling provision and there is nothing mandatory about it. As the Supreme Court pointed out in V.N. Kamdar and Another Vs. Municipal Corporation of Delhi, it does not create exemption to the normal procedure prescribed by the Criminal Procedure Code regarding holding of separate trials. In view of the fact that the petition was filed only at the fag end of the trial I do not think it could be said that the magistrate had committed a mistake. Certainly action against the manufacturer could still be taken, no doubt with the written consent u/s 20 of the Act. In this view I confirm the judgement of the Judicial First Class Magistrate, Perumbavoor in S.T. No. 322 of 1978 acquitting the accused. I dismiss this Criminal Appeal.