N. Soman vs State of Kerala

K. Sreedharan, J.—Accused in CC. 88 of 1981 on the file of the Judicial First Class Magistrate''s Court, Nedumangad is the petitioner in this revision petition. He was charged with offences punishable under Sec: 16 (1) (a) (i) read with Secs: 2 (ia) (f) & 7 (1), (iii) of Prevention of Food Adulteration Act (for short ''the Act''). After trial, the learned Magistrate found the accused guilty of the said offences and convicted him there under. Thereupon, he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs 1,000/-, In default of payment of fine, it was ordered that the accused must suffer simple imprisonment for three months. This conviction and sentence were challenged before the Sessions Court, Trivandrum in Crl. Appeal No. 259 of 1981. The Appellate court dismissed the appeal confirming the conviction and sentence. Hence this revision petition. The prosecution version is as follows:- On 29-1-1981 at about 2 p.m., the Food Inspector, PW. 1 visited the provision store belonging to the accused situated in the building having Door No. C3-1099 (2) in Muthuvila in Kallara Panchayat. After disclosing his identity, he purchased 750 grams of peas-dhall kadalaparippu) from the accused. The accused received Rs. 4.50, being the price of the peas-dhall and issued Ext. P3 voucher. PW. 1 divided the articles into three equal parts and sampled the same in accordance with the provisions of the Act and the Rules. Ext. P4 mahazar was prepared in the presence of witnesses and the accused. From No. VII memorandum and specimen impression of the seal used for sealing the samples were prepared. One sample was sent to the Public Analyst and the remaining two to the Local Health Authority. One Form No. VII memorandum and a specimen impression of the seal were separately sent to the Public Analyst. On analysis, the Public Analyst found the article of food to be adulterated. The Local Health Authority sent a copy of that report along with the required intimation to the accused under registered post, acknowledgment due, immediately after the complaint was filed. Hence the charge.

The Public Analyst''s report is marked in this case as Ext. P7. This report shows that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. The Public Analyst gave the result of the analysis as follows:-

Macroscopic examination :

The sample consists of peas-dhall (pisum Arvense). It is free from artificial colouring matter. The sample is insect infested.

Dead and living insects

Present

Organic foreign matter :

0.3 per cent (by weight)

Inorganic foreign matter Damaged grains

0.4 per cent (by weight) Absent

Insect damaged grains (weevilled grained) :

45.5 per cent (by count)

Uric acid content arising as a result of insect damage

533.0 mgs per 100 gms.

Rodent hair :

12 pieces per kg.

Rodent excreta

8 pieces per kg.

Moisture (Loss in weight by heating the pulverised dhall for 2 hours at 130� - 133� C

9.1 per cent.

On the basis of the above result, he gave the opinion that the sample does not conform to the standards prescribed for the food grains, under the Prevention of Food Adulteration Rules. 1955 and is therefore adulterated. He continued to state "it is insect infested and is unfit for human consumption The certificate is dated 3-2-1981. i.e. the sample was analysed with in 5 days of sampling.

The learned counsel appearing for the revision petitioner challenges the conviction and sentence on the following 5 grounds : -

Accused did not sell the peas-dhall to PW. 1

There is violation of the provision contained in Sec: 13(2) and Rule 9A of the Rules

PW. 1 has violated Rule 7

PW. 1 has violated Rule 17

PW. 1 has violated Rule 18.

I shall proceed to deal with these aspects one by one.

The main contention is that the petitioner is not the owner of the provision shop and that he had not sold the peas-dhall to PW. 1. According to the learned counsel, the prosecution has not established that Pw. 1 is the owner of the provision shop and so even if there is a sale, the accused cannot be convicted for the offences charged against him It is the case of the accused that the accused is having a fair price ration shop in the room adjoining to the room where the provisions are being sold. An owner of a fair price ration shop is barred from running a provision shop. It is contended that the provision shop belongs to one Babu. The accused has not taken any licence for the sale of provision, Dw. 1, the Taluk Supply Officer has been examined by the accused to show that the accused is running ration shop and that no provision can be sold by a ration shop owner from the ration shop. In these circumstances, the learned counsel argues that there is no iota of evidence to show that the accused has any manner of connection with the provision shop and so the accused is entitled to an acquittal I find it difficult to agree with this argument.

According to me, the ownership of the provision shop is an irrelevant matter to be gone into in this proceeding. The question is whether the accused had infact sold the article of food to the Food Inspector. If there is a sale of peas-dhall by the accused to Pw. 1, the Food Inspector as is now contended, then the accused is liable if that article of food is found to be adulterated on analysis. In the decision reported in Sarjoo Prasad Vs. The State of Uttar Pradesh, . it is observed:-

If the owner of a shop in which adulterated food is sold is without proof of mens realiable to be punished for sale of adulterated food, there is no reason why an agent or a servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge.

This statement of the law will go to show that even if the accused had nothing to do with the ownership of the shop and if he in fact sold the article to Pw, 1, that is sufficient to invoke the provisions contained in the Prevention of Food Adulteration Act. The prohibition to the sale of adulterated food applies to all persons who sell adulterated food. For contravention of that prohibition, all such persons are penalised.

A constitution Bench of the Supreme Court in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, observed:-

No doubt a contract comes into existence by the acceptance of a proposal made by one person to another, by that other person. That other person is not bound to accept proposal but it may not necessarily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract. Apart from this we need not, however, consider this argument because throughout the case was argued on the footing that the transaction was a ''sale''. That was evidently because here we have a special definition of "sale" in S. 2 (xiii) of the Act which Specifically includes within its ambit a sale for analysis.

That is a sale of an article of food by one to the Food Inspector for analysis is a sale which is coming within the purview of the Act. The definition Sec. 2 (xiii) of the Act will clearly show that a sale of any article of food for analysis comes within that definition. In The Food Inspector, Calicut Corporation Vs. Cherukattil Gopalan and Another, , Their Lordships observed:-

Here again it is to be noted that any person who sells any article of food which is adulterated shall be punishable in accordance with that Section (referring to Sec. 16(1). The Food Inspector purchased Sugar on November 17, 1965, from the tea stall of the respondents on payment of price. The said transaction clearly amounts to a sale under S. 2(xiii) of the Act. From the definition of "sale" already quoted, a sale of an article of food for analysis is a sale. Under such circumstances it amounts to a sale under the Act as has been laid down by this Court in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, .

In State of Kerala v. John (1978 K. L. T 738), Kader, J has observed:-

It is now settled law and is also clear from the special definition of ''sale'' in clause (xiii) of S. 2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act.

Thus, whether the accused is the owner of the provision shop or not, if he has sold an adulterated article of food, he is to be penalised.

Now the question that remains to be considered is whether the accused had in fact sold the peas-dhall to PW. 1. Pw. 1 swears that he purchased the peas-dhall from the accused. Pw. 1 in cross examination swears that he had purchased two articles of food from the accused on the same day According to the learned counsel, the other article purchased by the Food Inspector was cumin seeds. That sample was also found to be adulterated. He was prosecuted for that also. The trial court convicted the accused in that case as well. But on appeal, the Sessions Judge acquitted him. This court took up the matter in calender revision, Crl R.C. 10/82. That was disposed of by this court in the decision reported in State of Kerala v. Soman (1983 K. L. T. 297). According to the learned counsel, this court did not interfere with the order of acquittal on the ground that the prosecution did not prove that the accused was the owner of the shop. The learned counsel relies on the following observations contained in that judgment.

The accused has been consistently contending that he had nothing to do with the provision shop and that he is the owner of the adjoining ration shop and has obtained licence for the same as could be seen from the evidence of the Executive Officer of the Panchayat, examined as Pw. 4. Prosecution has no case that the licence of the provision shop stands in the name of the accused. That would mean that the accused had violated also Rule 50(1) of the Rules in not taking licence in regard to the vending of the various food articles dealt with in the provision shop. But the trial court did not frame charge for sale of food article without license. There was also evidence of Dw. 2, Headmaster of the local school, who stated the provision shop belong to one Babu. The Food Inspector did not care to look at any of the records kept in the shop. No doubt-the Prosecutor relies on the evidence of Pw. 1 to the effect that the relevant records, acknowledgment of the Memoradum, seizure mahazar, etc. were signed by the accused, but this is denied by the accused. It is the evidence of Pw. 1 that at the time of sampling there were a number of consumers present in the shop, but not even one of them was required to witness the sampling or to attest the mahazar. Ignoring all of them, Pw. 1 went to the road to call two persons. According to the prosecution, samples of two different food articles were taken on the occasion from the provision shop and prosecutions had been lunched. According to Pw. 1, two independent witnesses called from the road did not sign the mahazar in both the cases, and each of them signed one mahazar. But, this is falsified by what is shown in the mahazar. Mahazar shows that both the witnesses signed the mahazar in this case. Peon of the Food Inspector also was present, but he did not attest the mahazar There is also evidence of Dw. 1, Taluk Supply Officer, which would lend a degree of improbability to the prosecution case that the accused had anything to do with the provision shop. None of these circumstances was properly considered by the courts below. In the light of the evidence and the circumstances emerging there from, I hold that there is reasonable doubt regarding the sampling done by Pw. 1 and the connection of the accused with the sampling. On this ground, the acquittal of the accused has to be sustained and I do so.

Relying on this observation, the learned counsel submits that the accused is entitled to an acquittal in this case as well. I do find my way to this request of the learned counsel. In view of the decisions of the Supreme Court referred to earlier, the ownership of the shop is matter irrelevant to be taken into consideration. If Pw 1 succeeds in showing that 750 grams of peas-dhall was sold to him by the accused for the purpose of analysis, then the said sale is one coming within the purview of the Act and so even if the accused had nothing to do with the provision shop, he is to be penalised.

Pw. 1, as stated earlier, has categorically sworn to the prosecution case that he purchased 750 grams of peas-dhall from the accused after giving Form VI notice. Form VI notice thus given by Pw. 1 is marked in this case as Ext. P2. On the back of Ext. P2, there is an endorsement made by the accused acknowledging the receipt of that notice and he has affixed his signature to it. That is marked as Ext. P2(a). Towards the price of the peas-dhall purchased by Pw. 1, the accused has issued a voucher, written and signed by him. It is marked as Ext. P3. At the time of sampling. Pw. 1 had prepared a mahazar. It is marked in this case as Ext. P4 Ext. P4 contains two signatures of the accused. One signature is seen affixed against the entry "the owner of the shop". Pws. 4 and 5 are the attestors of this mahazar. They have turned hostile to the prosecution. But a reading of their evidence would go to establish the fact that the accused has sold the peas-dhall to Pw. 1, What Pw. 4 states is that the provision shop is adjoining the ration shop, that the Food Inspector prepared Ext. P4 mahazar and that this witness signed the same. According to Pw. 5. the accused has both ration shop and provision shop and that he had seen the Food Inspector inside that provision shop. It is true that these two witnesses have not stated that they witnessed the sale of peas-dhall to Pw. 1. But the fact that Pw. 4 signed the mahazar and the fact that Pw. 1 was inside the provision shop belonging to the accused are sworn to by these witnesses. This evidence go to corroborate the evidence of Pw. 1.

The accused has denied his signature in Exts. P2 (a), P3 and P4. According to the learned counsel, since there was no attempt made by the prosecution to show that the signatures in these documents are that of the accused, this court should not proceed on the basil that those documents contain the signature of the accused. This argument, though attractive, cannot be accepted. After the complaint was filed before court, the Public Health Authority sent an intimation contemplated by Sec. 13(2) together with a copy of the Public Analyst''s report by registered post, acknowledgment due. The acknowledgment form signed by the accused is Ext. P9. The address shown in this acknowledgment form is admittedly that of the accused. It contains the accused''s signature. The accused has also affixed his signature in all the pages of the 313 statement. His signature is also seen in the vakalath executed by him in favour of the learned counsel appearing in this case. The signatures seen in the acknowledgment form, 313 statement and the vakalath have striking similarity with those in Exts. P2 (a), P3 and P4. The similarities are so striking that no one can dispute that all these signatures are of the same individual. Thus I have no hesitation in holding that Exts. P2 (a) and P3 were signed by the accused. These documents go a long way to falsify the contention raised by the accused.

Then as observed by Their Lordships of the supreme Court in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, , as the Food Inspector was not in a position of an accomplice his evidence alone, if believed, can sustain the conviction. The courts below, have, after properly appreciating the entire evidence in this case came to the concurrent finding that the accused has sold 750 grams of peas-dhall to Pw. I. The evidence discussed above fully goes to support that finding. I believe the evidence of Pw. 1, corroborated by the testimonies of Pws. 4 and 5 and the circumstances detailed earlier in this judgment to come to the conclusion that the accused sold 750 grams of peas-dhall to Pw. 1. The report Ext. P4 issued by Public Analyst, Pw. 2 prove beyond doubt the fact that the peas-dhall sold by the accused is adulterated. In these circumstances I come to the conclusion that the accused sold adulterated peas-dhall to Pw. 1.

The next point that is urged by the learned counsel for the revision petition is the violation of the provisions contained in Sec: 13 (2) of the Act and Rule 9A of the Rules. The complaint was filed by the Food Inspector in court on 11-3-1981. The Local Health Authority sent a copy of the report and the intimation under Sec: 13 (2) by registered post acknowledgment due. The acknowledgment signed by the accused is marked in this case as Ext. P9. It shows that he received the intimation and the report on 17-3-1981. That is within six days of the filing of the complaint. There is no undue delay. Further, the accused had not sought to have another sample examined by the Central Food Laboratory. So no prejudice has also been caused on account of the said delay. In the absence of such a prejudice, it is not open to the accused to contend that the prosecution must fail for violation of the provision contained in sec. 13 (2) and rule 9A. This position has been accepted by their Lordship to the Supreme Court in Tulsiram v. State of M P. (1984 Crl. L. J. 1731

The other three contentions raised by the learned counsel, namely, violation of the provisions contained in Rules 7, 17 and 18 can be dealt with together. The argument of the learned counsel is that the Food Inspector had not stated that the specimen impression of the seal used to seal the sample was separately sent to the Public Analyst and that there is nothing to show that the Public Analyst had in fact compared the seal of the sample with the specimen impression of the seal sent to him. This argument is unsustainable on the facts of this case. Pw. 1 swears that after purchasing 750 grams of peas-dhall, he divided it into three equal parts, put them in three clean dry bottles, closed them with cork, tied them with twine and sealed them. Thereafter, he affixed the label, gave number II and then wrapped it in brown paper. Seal was affixed on the outer cover as well. According to him, after doing these things, he prepared 4 copies of Form VII memorandum.

He then prepared three copies of the specimen impression of the seal. According to him, one sample, with Form VII memorandum and specimen impression of the seal, was put in one cover. He then swears that a Form VII memorandum was put in another cover. He sealed both the covers, and sent them to public analyst. From this, the learned counsel would argue that a specimen impression of the seal was not sent along with the Form VII memorandum separately to the Public Analyst. I do not agree with this argument. True, that there is an omission on the part of Pw. 1 in not having stated that the specimen impression of the seal was also put in the cover in which the Form VII memorandum was sent to the Public Analyst separately. No question on this aspect of the matter was put to Pw.1 in cross examination, He has specifically stated in chief examination that be had taken steps in accordance with the provisions of the Act and Rules. They were sent to the Public Analyst. Further, Pw. 2, the Public Analyst examined in the case had sworn before court "the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector". This means not only that the Food Inspector had complied with the provisions of Rule 17 strictly but also that the Public Analyst had compared the seal on the container and the outer cover with the specimen impression received by him separately. Thus, according to me, the provisions of Rule 7 and 17 are strictly complied in this case.

Coming to Rule 18, the argument is that the purchase effected by Pw. 1 was on 29-1-1981, from Ext. P7, it is seen that it reached the Public Analyst on 30-1-1981 and that the Food Inspector has stated how he despatched the sample to the Public Analyst. The argument is that Pw. 1 should have stated before court that he had despatched the sample by registered post or delivered the sample to the Public Analyst or to any other person authorised by him. In the absence of such a sworn statement, the prosecution must fail. I do not find my way to accept this argument either. In Food Inspector v The Pirayiri Co. OP. Milk Society Ltd (1983 K.L.J. 579), this court observed:-

Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. But where he gives evidence only in a general way indicating the steps taken by him but without specifically referring to the details, that cannot straightaway lead to acquittal of the accused. His evidence may be corroborated by the mahazar and the other evidence and supported by the contents of the report of the Public Analyst-unless the same is challenged in cross-examination or in come other way known to law. Where the accused refrains from cross examining the Food Inspector in regard to these details and fails to suggest either non-compliance with any particular detail of a rule or prejudice having been suffered by the accused, he certainly runs a risk. Such contention should be taken up in the trial itself, so that the prosecution is not taken by surprise and has an opportunity to give the necessary explanation. It is for the accused to raise the necessary challenge in the course of evidence. The report of the Public Analyst which is admissible in evidence without examination of the Public Analyst would normally show that the relevant rules have been complied with and that analysis had been done only after the necessary verification of the container in accordance with the rules. Of course, it is open to one or the other party to examine the Public Analyst to clarify any matter and to challenge any aspect. In the absence of any inhibiting factor, it is open to the court to presume that the official act has been regularly performed, where it is shown that the official act has been performed.

This observation has been approved by the Division Bench while disposing of Crl. Appeal No. 205 of 1982. The Food Inspector has categorically stated that he had taken all the steps in accordance with the provisions contained in the Act and the Rules. The official acts carried out by him are presumed to have been regularly performed. No question was put to him in cross examination, challenging the regularity of the actions done by Pw. 1. In the absence of factual basis, I find no merit in the contention raised by the learned counsel and I over-rule the same.

In view of what has been stated above, I find no merit in this revision petition. The conviction and sentence passed by courts below are confirmed. The revision petition is accordingly dismissed.