Gunvantray Chhotalal Bhatt vs Mohmand Kunjumal and Another

V.H. Bhairavia, J.—This appeal has been preferred by the appellant original complainant against the judgment and order dated 22-6-1982 passed by the learned Addl. City Sessions Judge, Ahmedabad in Criminal Appeal No. 40/82 whereby the learned Addl. City Sessions Judge allowed the appeal preferred by respondent No. 1 accused herein and quashed and set aside the judgment and order dated 27-1-1982 passed by the learned Metropolitan Magistrate, Court No. 6 at Ahmedabad in summary Case No. 67/80 and acquitted the respondent No. 1 accused for the offence punishable u/s 16(1)(A) of the Prevention of Food Adulteration Act.

The prosecution case in brief is that one G.C. Bhatt. Food Inspector of the Ahmedabad Municipal Corporation (orig. complainant) went to Cineva Restaurant near Idgah Police Chowky, Ahmedabad on 18-7-1980 at about 9-00 a.m. Respondent No. 1-accused is the manager of the said hotel. Original accused No. 1 is the owner of the said hotel. At the relevant time, original accused No. 1 was absent while respondent No. 1 herein was present in the said hotel and was running business of selling articles of food prepared from ground-nut oil. Thereafter, complainant purchased 400 gms ground nut oil from respondent No. 1 accused at the rate of Rs. 11/per kg. from one vessel containing 4 kg. of groundnut oil. Thereafter, complainant called panchas and prepared samples of said groundnut oil as per the provisions of Prevention of Food Adulteration Act (PPA Act for short) and sent the same to the Public Analyst for analysis. On receiving report from the Public Analyst, it was found that the sample was adulterated and, therefore, after obtaining written consent of the competent authority as required u/s 20 of the PFA Act complainant filed a complaint against both the accused for the offence punishable u/s 16(1)(A)(i) of the PFA Act. Both the accused came to be tried by the learned Metropolitan Magistrate Court No. 6, Ahmedabad who after appreciating evidence led by the parties, by his judgment and order dated 27-1-1982, acquitted the original accused No. 1 but convicted accused No. 2 respondent No. 1 herein for the said offence and sentenced him to suffer simple imprisonment for 3 months and a fine of Rs. 500/-, in default of payment of fine, to suffer further simple imprisonment for one month. In appeal, the learned Addl. City Sessions Judge, by his impugned judgment and order dated 22-6-1982 passed in Cri Appeal No. 40/ 80 allowed the said appeal and quashed and set aside the judgment and order of learned Metropolitan Magistrate and acquitted respondent No. 1 accused. The learned Addl. City Sessions Judge acquitted the respondent No. 1 accused mainly on the ground that the prosecution has failed to explain variance between the report of Public Analyst (exh. 10) and report of Director of Central Food Laboratory (Exh. 2); that the provisions of Rule 4(2) of the Rules which are mandatory in nature, have not been complied with. Hence the present appeal.

It has been submitted by the learned counsel for the appellant-original complainant that the learned Addl. City Sessions Judge has committed serious error in acquitting the respondent No. 1 accused on techanical ground that the provisions of Rule 4(2) of the PFA Rules have not been complied with while preparing the sample and sending it for analysis to the Director Central Food Laboratory. The learned counsel for the appellant has further submitted that the learned Addl. City Sessions Judge was also in error in observing that there is great variance between the report of public analyst (exh. 10) and report of the Director Central Food Laboratory, Pune (Exh. 2) and the same has not been explained by the prosecution. According to the submission of the learned counsel for the appellant, Rule 4(2) of the PFA Rules is complied with and further that Rule 4(2) is not mandatory in nature and, therefore, non-compliance of the same will not cause any prejudice to the accused.

As against that Mr. Modi, learned counsel for the respondent No. 1 accused has supported the judgment and order of the learned Addl. City Sessions Judge and submitted that the provisions of Rule 4(2) of the PFA Rules are mandatory in nature and non-compliance whereof would lead to acquittal of the accused. He has further submitted that there is variance between the report of Public Analyst (Exh. 10) and report of Director, Central Food Laboratory (Exh. 2) and since the variance has not been explained by the prosecution, the learned Addl. City Sessions Judge committed no error in acquitting the respondent No. 1 accused on this ground.

In order to appreciate the rival contentions of the parties, it would be first relevant to refer to Rule 4(2) of Prevention of Food Adulteration Rules, 1955 which reads as under :--

Analysis of food samples:--

(1) xxx xxx xxx xxx (2) The container as well as the outer covering of the packet shall be marked with a distinguishing number.

It has been submitted by the learned counsel for the appellant that provisions of Rule 4(2) of PFA Rules have been complied with. Emphasizing on word "distinguishing number", he has pointed out that in the report and covering letter, Court Case number has been mentioned and that by itself is a distinguishing number and there is no need to write any other distinguishing number. Number of Criminal Case will be more sufficient enough to distinguish the sample from other sample and, therefore, the requirement of Rule 4(2) of PFA Rules is complied with. The learned counsel further submitted that the provisions of Rule 4(2) of PFA Rules are not mandatory in nature and, therefore, even if they are not complied with no prejudice would be caused to the case of the accused. The learned counsel for the appellant further submitted that the requirement under Rule 16(c) has been fully complied with by the Food Inspector and, therefore, no prejudice is caused to the accused. The learned counsel further submitted that it would not be open to the accused to plead that prosecution must explain variance between the report of Public Analyst and Director, Central Food Laboratory. In support of his submissions, the learned counsel for the appellant firstly relied on the case of Prahladbhai Ambalal Patel Vs. State of Gujarat and Another, wherein this court has observed as follows in the head-note :

It is not open to the accused to plead successfully if there is any variance between the report of the Public Analyst and certificate of the Director, Central Food Laboratory, the prosecution must explain the said variance or otherwise fail."

The learned counsel for the appellant further relied on the case of Ranchhodbhai Keshavlal Kadia Vs. Damodar Veljibhai Mistry and Another, . It has been observed in para 10 of the said judgment as follows :

The object underlying the provisions of Rule 16 is to see that there is no tampering with the sample and the interests of the accused are not adversely affected during the course of transit and till it is received by the Public Analyst and/or Director, Central Food Laboratory. In the instant case it can never be said by any stretch of reasoning that the interests of the accused have been adversely affected on account of alleged non-mention of serial number on the paper slip pasted by the Food Inspector, because the slip affixed on the sample bottles by the Food Inspector, also contained the signatures of the Panch and the accused himself. This part of evidence of the Food Inspector has remained unchallenged. In view of this state of evidence, the learned City Sessions Judge has rightly held that no prejudice has been caused to the accused."

The learned counsel for the appellant further relied on the case of M.B. Risaldar Vs. Deviram Chhitamal and Others, . This court referring to the case of Kamleshkumar Babulal Patel Vs. State of Gujarat and Another, has observed in para 11 as under (at page 762 (of Cri LJ) :

In the instant case, it is not disputed that paper slip used by the Food Inspector bears the signature and code and serial number of Local (Health) Authority. It is, however, pointed out that Code and serial number of the Local (Health) Authority were written by the Food Inspector as admitted by him in his evidence. There was, therefore, clear violation of Rule 16(c). We do not see any substance in this argument. The rule only describes or specifies the type of paper slip which must be pasted by the Food Inspector on the wrapper. In other words the rule is descriptive of the paper slip to be used. The paper slip must no doubt bear the signature of the Local (Health) Authority. There is, however, nothing in language used in the rule to suggest that code and serial number of the Local (Health) Authority must be written in the hand of the Local (Health) Authority, Mr. Patel, however, strongly relied on the judgment of Divan, C.J. in Criminal Appeal No. 1215 of 1979 decided on November 23, 1979, In that case, it was pointed out that the Food Inspector had used a blank slip with signature of the Local (Health) Authority and the code and serial numbers were filled in by the Food Inspector himself and not by the Local (Health) Authority. In view of this evidence the learned Chief Justice observed "Under the circumstances it is obvious that the requirement of Clause (c) of Rule 16 was not complied with because what is contemplated by Clause (6) is that the signature and the Code and serial number should be put by the Local (Health) Authority and not by the Food Inspector concerned". With great respect to the learned Chief Justice we do not agree with this view taken by him. As pointed out above the rule nowhere provides that the code and serial number should be put by the Local (Health) Authority. All that the rule requires is that the paper slip should bear the code and serial number besides the signature of the Local (Health) Authority. It is immaterial where the code and serial number are written or filled in by the Food Inspector. Once it is proved that the paper slip affixed on the sample bears the signature and code and serial number of Local (Health) Authority, requirement of Rule 16(c) must be held to have been complied with. We, therefore, reject the first contention of Mr. Patel."

We have gone through the record and proceedings of the case. It is clear from the evidence that in the covering letter criminal case number is mentioned and, in our view, it by itself is a distinguishing mark. In view of above clear legal position. In our view, there is no doubt that the provisions of Rule 4(2) and Rule 16(c) of the PFA Rules have been fully complied with and, therefore, the learned Addl. City Sessions Judge committed serious error in acquitting the respondent No. 1 accused on such technical grounds. Thus, the i requirements of Rule 4(2) being directive in nature and not mandatory and the same being fully complied with the learned Addl. City Sessions Judge committed error in acquitting the respondent No. 1 accused and the judgment and order of the learned Addl. City Sessions Judge requires to be quashed and set aside.

The contention of the learned counsel for respondent No. 1 accused Mr. Modi that there is difference between compliance of Rule 16(c) and Rule 4(2) of PFA Rules and that Rule 4(2) read with Section 13(2)(b) of the PPA Act is mandatory in nature is not well founded in view of the above legal position and evidence on the record of the case. The further contention that the requirements of Rule 4(2) of the PFA Rules have not been complied with and, therefore, accused is entitled to be acquitted also cannot be sustained in view of evidence on record. Rule 4(2) of PFA Rules requires that a distinguishing mark should be pasted on the sample and writing of criminal case number on the covering letter in no way can be said that it is not a distinguishing mark. On the contrary, it directly points out that the report in question is of the sample of a particular criminal case in that view of the matter the reliance placed by the learned counsel for the respondent No. 1 accused on the case of Jayantilal Thakurdas Suratwala v. The State of Maharashtra reported in 1986 (1) FAC 2 and State of Maharashtra v. Syed Akhalak reported in 1980 (II) FAC 145 will not support the case of the learned counsel for respondent No. 1 Accused. There is no quarrel with the principles enunciated in the aforesaid judgments but the same is not applicable to the facts of the present case in view of evidence on record and settled legal position stated above. We, therefore, do not agree with the contentions canvassed by the learned counsel for the respondent No. 1 accused.

It has been next contended by the learned counsel for the respondent No. 1 accused that no valid consent has been obtained for filing the complaint. We do not find any substance in this argument. The learned Addl. City Sessions Judge has also held that there was valid sanction after giving elaborate reasons. We have gone through the evidence of complainant and he has categorically stated that after obtaining written consent from the Local Health Authority whose appointment is notified in the Govt. Gazette the present complaint is filed. The arguments canvassed by the learned counsel for respondent No. 1 relying on the cases of Mangilal Chamnaji Vs. State of Gujarat and Another, and State of Kerala and Others Vs. Alasserry Mohammed and Others, are not acceptable since they do not apply to the facts on record. In our view, the ratio laid down in above judgments is not applicable to the facts of the present case. Herein in the present case, we have gone through the evidence of the complainant and, in our view, presumption u/s 114 of the Evidence Act arises and the learned Addl. City Sessions Judge has also rightly held so. Therefore, in our opinion, there is no substance in the arguments advanced by the learned counsel for respondent No. 1 accused that valid consent, was not obtained before filing the complaint.

It was next contended by the learned counsel for the respondent No. 1 accused that the sample collected by the complainant-Food Inspector from Geneva Restaurant does not fall u/s 10(A) of the Act. It has been submitted by the learned counsel for the respondent No. 1 that the accused person was not selling the articles in quest and that Food Inspector has no right to take sample for analysis and file complaint on the basis of the report of public analyst. In support of his arguments he has relied on the case of Municipal Corporation of Delhi Vs. Laxmi Narain Tandon and Others, . We do not agree with the argument advanced by the learned counsel for respondent No. 1 in view of the principles laid down by the Supreme Court in the case of The Food Inspector, Calicut Corporation Vs. Cherukattil Gopalan and Another, and the case of the State of Tamil Nadu Vs. R. Krishnamurthy, . In both the cases, the Supreme Court has interpreted word "Food" and "Sale". In the case of State of Tamil Nadu v. V.R. Krishnamurthy (Supra), the Supreme Court has observed in para 5 as under :

In order to be "food" for the purpose of the Act, an article need not be "fit" for human consumption; it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption, it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Gingelly oil, mixed or not with groundnut oil or some other oil, whether described or exhibited as an article of food for human consumption as an article for external use only is "food" within the meaning of the definition contained in Section 2(v) of the Act.

It has been further observed by the Supreme Court in para 11 of the said judgment as under :

That gingelly oil, however described or exhibited, is an article of food is not an end of our problem. We have further to investigate the definition of "sale". Now, the definition is designedly wide. It seems a real sale as well as an "embryonic" sale (like agreement for sale, offer for sale, exposure for sale, possession for sale, attempt at sale are sales for the purposes of the Act. The sale may be for cash or credit or by way of exchange. The sale may be by wholesale or retail. Thus every kind, manner and method of sale are covered. Finally, the sale may be "for human consumption or use or for analysis". In the context these words can only mean "whether for human consumption or for any other purpose (including analysis)". The object is to emphasise that whatever be the purpose of the sale it is a sale for the purpose of the Act just as the words "whether by whole sale or retail" or "whether for cash or credit or by way of exchange" are intended to emphasise that it is immaterial for the purpose of the Act what manner and method of sale is adopted. To give any other interpretation to the definition of "sale" would be to exclude from the ambit of the Act that which has been included by the definition of "food". Further, a sale "for analysis" can never be a sale "for human consumption but it is nonethless a sale within the meaning of the definition. It is an unqualified sale for the purpose of the Act. To insist that an article sold for analysis should have been offered for sale for human consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby insure himself against prosecution for selling adulterated food. If sale for analysis is an unqualified sale for the purposes of the Act there is no reason why other sales of the same article should not be sales for the purposes of the Act. The question may be asked why sale for analysis should be specially mentioned if all manner of scales are included in the definition. It is only to prevent the argument that sale for analysis is hot a consensual sale and hence no sale, an argument which was advanced and rejected in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, .

In view of the interpretation of words "sale" and "food" made by the Supreme Court in the aforesaid two cases the arguments advanced by the learned counsel for the respondent No. 1 accused have no substance and require to be rejected.

For the reasons stated above and in view of above clear legal position in our view, the learned Addl. City Sessions Judge has erred in acquitting the respondent No. 1 accused. Consequently, the judgment and the order of the learned Addl. City Sessions Judge requires to be quashed and set aside and the respondent No. 1 accused is required to be convicted for the offence u/s 16(1)(A) of the PFA Act, Hence this appeal requires to be allowed. Appeal is allowed. Judgment and order dated 26-6-1982 passed by the learned Addl. City Sessions Judge Ahmedabad in Criminal Appeal No. 40/82 acquitting the respondent accused of the offence u/s 16(1)(A) of the PFA Act are hereby quashed and set aside and the respondent No. 1 accused is convicted for the offence punishable u/s 16(1)(A) of the PFA Act.

At this stage, the learned counsel for the respondent No. 1 accused has submitted that this court should not interfere with the acquittal order after the lapse of considerable long period i.e. 10 years. In support of his submission he has relied on the case of Food Inspector, Municipal Corporation, Baroda Vs. Madanlal Ramlal Sharma and Another, . In our view the ratio laid down in the aforesaid judgment is not applicable to the facts of the present case since the facts of both the cases are quite different. In that case, there were concurrent finding of two courts acquitting the accused � and there was finding that there was marginal adulteration and, therefore, under that circumstances the court observed that delay of 6 years would certainly be a disincentive to interfere with the order of acquittal. In the instant case the facts are not like the facts stated above. The trial court has convicted the accused but in appeal he was acquitted by the appellate court on technical grounds. As we have already held that the order of the learned Addl. City Sessions Judge is bad-in-law the mere fact that the respondent No. 1 accused came to be convicted after considerably long time that would not be a disincentive to interfere with the order of acquittal in absence of any other cogent reasons. It has been stated at Bar by the learned counsel for the respondent No. 1 accused that the accused has closed his business and transferred his restaurant to another person. He has also further submitted that the accused person has left for Kerala and his whereabouts are not known. He has further submitted that considering above aspects order of acquittal should not be interfered with and if this Court is not inclined to accept above submissions in view of the peculiar facts and circumstances of the case accused may be awarded lesser punishment. We are unable to accept the submissions of the learned counsel for the respondent No. 1 accused. On going through the judgment of the trial court, we find that the learned Trial Judge has awarded sentence on the accused even less than the minimum provided under the Act. The learned Trial Judge has also not given any reasons for inflicting lesser sentence. It is to be noted that these offences have the deleterious effect playing havoc with the health and well-being of a large segment of the society and therefore, no lenient view should be taken. However, in view of the peculiar facts of the present case, it would be in the interest of justice to award minimum sentence provided under the Act. Hence, the following order is passed;

Appeal is allowed. Judgment and order dated 22-6-1982 passed by the learned Addl. City Sessions Judge Ahmedabad in Criminal Appeal No. 40/82 acquitting the respondent No. 1 accused of the offence punishable u/s 16(1)(A) of the PFA Act is hereby quashed and set aside and instead the respondent No. 1 accused is convicted for the aforesaid offence and is sentenced to suffer simple Imprisonment for 6 months and a fine of Rs. 500/- in default of payment of fine to undergo further simple Imprisonment of one month. Respondent No. 1 accused is on bail. His bail bond stands cancelled. Respondent No. 1 accused be taken into custody forthwith.