P.A. Jose vs The Food Inspector and Another

U.L. Bhat, J.—Crl. M.P. No. 1501 of 1979 is a petition u/s 482 of the Code of Criminal Procedure seeking to quash the order, dated 23rd November 1979 passed by the Chief Judicial Magistrate, Trichur in S.T. 31 of 1979. Criminal R.P. No. 492 of 1979 is a revision petition directed against the order passed by the same Magistrate on the same day in S.T. 35 of 1979. The two cases have been heard together and are being disposed of by a common order, since they involve the same question.

In both these cases the concerned Food Inspector filed complaints against two different persons for selling adulterated food articles to the Food Inspector; the articles having been sampled and sent to the Analyst, the Public Analyst''s reports showed the samples to be adulterated. In both the cases the accused appeared and were represented by counsel. Several months after the samples were taken and complaints were laid, the process of forwarding of the copies of the reports of the Public Analyst with the necessary information as contemplated u/s 13(2) of the Prevention of Food Adulteration Act, 1954 (for short the Act) was not completed. The accused were evidently trying to take advantage of the situation by praying for an order of discharge. The prosecution tried to meet this situation by filing applications before the court for help of the court in serving copies of the Public Analyst''s report u/s 13(2) of the Act. In both instances, the cases were adjourned to enable service of the reports contemplated u/s 13(2) of the Act to the accused (as they were expected) to appear in court on the next adjournment date. In both the cases, the court apparently accepted the contention of the Food Inspector that the accused persons were avoiding service of reports u/s 13(2) of the Act. In S.T. 35/79 the learned Magistrate passed an order to the following effect: "The notices will be served on the accused when they appear the court on the next hearing date." In S.T. 31/79, the order was to the effect that accused was evading service and granting 15 days time to serve report u/s 13(2) of the Act.

The learned Counsel appearing for the Petitioner in the one case and the revision Petitioner in the other case, urged two contentions before me, viz., that the learned Magistrate agreed with the submission made by the Food Inspectors regarding the accused persons avoiding service without hearing the accused persons and without giving them an opportunity to have their say in the matter and that the court has no jurisdiction to lend itself as a means for service of copy of report contemplated u/s 13(2) of the Prevention of Food Adulteration Act, 1954. I am in agreement with both these submissions.

u/s 13(2) of the Act, it is the duty of the Local Health Authority, and not the duty of the Food Inspector or the prosecuting agency to forward in such manner as may be prescribed, Public Analyst''s report to the accused informing him that if it is so desired he may make an application to the court within a period of 10 days from the date of the receipt of the copy of the report, to get the samples of, the articles of food in the custody of the Local (Health) Authority analysed by the Central Food Laboratory. This is a very important duty cast on the Local (Health) Authority, since it gives rise to a vital right in the accused. Consequent on the supply of the report and the information as contemplated u/s 13(2) of the Act, the accused gets a right to move the court to send one of the samples for analysis to the Central Food Laboratory as contemplated in Section 13(2A). Section 13(3) lays down the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the public analyst under Clause (1). This emphasises the value of the right conferred on an accused u/s 13(2A) of the Act.

Section 13(2) of the Act requires the report and information to be forwarded in such a manner as may be prescribed by the Rules. Rule 9-A has been incorporated in the Prevention of Food Adulteration Rules, 1955 (for short the Rules) with effect from 4th January 1977. The relevant portion of Rule 9-A states that the Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of the analysis by registered post of by hand, as may be appropriate, to the accused persons. It is significant to note that Rule 9-A lays down only two methods of forwarding the records to the accused persons, viz., sending by registered post or by hand.

In a case where the Local (Health) Authority forwards the report by registered post or by hand and the accused refuses to receive it, the Local (Health) Authority has no further duty in the matter, since the Authority would have done all that he is required to do under the Act and the Rules. If on one or two occasions, the Local (Health) Authority finds any difficulty in serving the report on the concerned accused persons, it is open to him to try again to see whether service can be effected. That is all the Authority need do and can do u/s 13(2) of the Act and Rule 9-A of the Rules.

A careful reading of the Act and the Rules does not show that intervention of the court has been contemplated in the matter of forwarding the report to the accused. The provisions of the Code of Criminal Procedure (for short the Code) in relation to furnishing of certain records to accused persons, will not apply to Section 13(2) of the Prevention of Food Adulteration Act. Sections 173(5), 207 and 208 of the Code are inapplicable to a prosecution under the Act. The Prevention of Food Adulteration Act is a self-contained Code creating new offences not contemplated under the Indian Penal Code or other existing laws and providing for filing of complaints in regard to offences created by the Act and regulating the matter of sentence and allied matters. The Code of Criminal Procedure is relevant in the matter of prosecution under the Prevention of Food Adulteration Act only for the purpose of ascertaining the procedure for enquiry or trial, the forum of appeal or revision and the powers of the appellate and the revisional forums and the like. The Code specifically lays down that copies of documents relied on by the prosecution shall be supplied to the court, which, in turn, supplies them to the accused persons. The provisions in Section 13(2) of the Act and the Rules are quite different from these provisions of the Code, viz., Sections 173(5), 207 and 208 and are intended to serve a wholly different purpose. Therefore the principles of these provisions of the Code cannot be applied to a situation arising u/s 13(2) of the Act.

As we have already seen, to ensure a successful prosecution, it is the duty of the Local (Health) Authority to forward to the accused report of Analyst with information or intimation as laid down in Section 13(2) of the Act. During the enquiry or trial of a particular case, the court may have to decree disputes as to whether report has been forwarded at all or not or whether if forwarded, was willfully refused by the addressee or not, or whether the information or intimation contemplated u/s 13(2) of the Act has been forwarded or willfully refused or not, or whether there has been any delay in forwarding the report or information and if so, whether such delay has caused any prejudice to the accused persons. All these matters may arise for consideration before a court. That being so, it would be inappropriate and improper, if not irregular or illegal, for the court to lend itself as a serving agency for the Local (Health) Authority in ensuring that the report or information contemplated u/s 13(2) of the Act are served on the accused persons. It is also not open to the court to "grant time" to the prosecution to forward the report to the accused on the ground that accused is avoiding service. The impugned orders cannot stand. They are quashed.

Before leaving the case, I would like to refer to one aspect of the controversy. In a case where the Local (Health) Authority is satisfied that he has done all that he could under the provisions of the Act and the Rules and that the accused persons are avoiding service, he need not feel frustrated or helpless. It is open to the prosecution to adduce evidence before the court holding the enquiry or trial, to show that the Local (Health) Authority has done all that he could do and that there has been avoidance or refusal to receive the report and intimation on the part of the accused; if the court accepts the evidence, the mandate of Section 13(2) of the Act could be deemed to have been obeyed.