Shanmugham vs State

This petition coming on for hearing on Monday the fourth day of April, 1988 and on this day, upon perusing the Petition and the order of the

Lower Courts, and the record in the case and upon hearing the arguments of Mr. T. S. Arunachalam, Advocate for the petitioner and of Mr. S.

Govindasamy, Public Prosecutor (Pondicherry) on behalf of the State, the Court made the following order :-

This revision is directed against the conviction of the petitioner u/s 7(1) read with 2(i-a)(M) and Section 16(1)(a)(i) of the Prevention of Food

Adulteration Act, 1954, hereinafter referred to as the Act, and the sentences of simple imprisonment for three months and the fine of Rs. 1,000/- in

default to undergo S.I. for three months by the learner Sub Divisional Judicial Magistrate, Pondicherry, which were confirmed by the Chief Judicial

Magistrate, Pondicherry.

The fact which are necessary for the disposal of this revision are briefly stated as follow : The Food Inspector P.W. 1 stopped the accused on

3-2-982 at about 9.15 a.m., who was carrying milk for sale in brass pots on his bicycle, and after disclosing his identity has purchased 660 ml. of

cow''s milk for Rs. 1.62 and obtained a receipt Ex.P. 2. He also served a copy of the form VI Ex.P. 1 on the accused. Thereafter, he divided the

sample milk into three equal portions, poured into three clean, empty, dry bottles, added 18 drops of formalin preservative to each portion, closed

each bottle tightly with cark, wrapped each bottle with thick brown paper, patted Local (Health) Authority with slip around brown paper on each

bottle, obtained the signature of the accused on all bottles and then sealed the samples in the presence of the accused and P.W. 2. Then P.W. 1

sent and bottle to the Public Analyst with a copy of Form VII on 4-2-1982 and also sent remaining two bottles to the Local (Health) authority.

The Local Health Authority received the Public Analyst report Ex.P. 3 which is to the effect that the sample contained 4.1% fat and therefore, the

milk is not adulterated. It is further stated therein that milk solids, nor fats was 7.0%, which is deficient in milk solids not fat to the extent of at least

7 per cent. After receipt of sanction order Ex.P. 4 prosecution was launched against the accused and intimation Ex.P. 5 was sent to the accused

about the filing of the case against him, and the intimation as acknowledged by the accused under Ex.P. 6. Thereafter a complaint was filed against

the accused. In support of the same, the prosecution examined the Food inspector P.W. 1 and three other witness namely P.W. 2 witness to the

mahazar, P.W. 3 Local (Health) Authority and P.W. 4 another Food inspector, and filed Ex.P. 4. The plea of the accused is one of denial. The

learned Sub Divisional Judicial Magistrate for them reasons assigned in his judgment convicted and sentenced the accused as stated in the opening

paragraph of this judgment. He was unsuccessful before the Chief Judicial Magistrate. Hence the revision.

The learned counsel for the petitioner Mr. T. S. Arunachalam mainly submitted that in the instant case, in the notice Ex.P. 5 u/s 13(2) of the Act

the name of the Court in which the prosecution was launched has not been mentioned, and as such the petitioner was deprived of his substantial

right to challenge the Analyst report and therefore the entire prosecution has to fail. The learned Counsel also submitted that though the Analyst

report is dated 10-2-1982, the prosecution was launched in August, 1982, i.e. after six months, and the delay was not been explained and the

delay in launching the prosecution resulted in prejudice to the case of the petitioner. On the other hand, the learned Government Advocate for

Pondicherry submitted that Section 13(2) is not mandatory but only directory and that since the accused has not specifically that plea before the

lower Court and it is a technical plea, the petitioner cannot be permitted to raise the same in the revision stage, and in any event the concurrent

finding of both the Courts below cannot be reversed on that score. The question now arises for consideration in this revision is whether the failure

to section the Court in the notice u/s 13(2) of the Act resulted in miscarriage of justice and the non-compliance of mandatory provision would

vitiate the entire prosecution case against the petitioner. In this connection, the learned counsel for the petitioner Mr. T.S. Arunachalam drew my

attention to the decision in Criminal Appeal No. 419 of 1978 (State by Public Prosecutor v. Palanichamy, judgment dated 22.10.1981), wherein

Sathar Sayeed J., had an occasion to consider the similar question and held that ""as per the rules framed under the Act, the respondents is entitled

to or had a right to apply for sending the sample seized from him and kept by the Local Health Authority to the Central Food Laboratory for

analysis. This is a valuable right conferred on the accused person is not informed as to which Court he has to apply and in which court the case is

pending against him, the valuable right afforded to him under the Act is lost, which would vitiate the prosecution case"".

In Criminal Appeal Nos. 58, 127, 177, 802, 812 and 825/79, while disposing of C.A. No. 127/79 (State by Public Prosecutor v. Sellamuthu,

judgment dated 24-11-1981). Ratnavel Pandian, J., as he then was, held that in ""addition to the ground,

I would like to point out there is more ground in Criminal Appeal No. 127 of 1979 viz., in the memo of intimation u/s 13(2) of the Act served on

the accused, the Local (Health) Authority has not specified the Court before which the prosecution has been launched. This is in breach of the

provision of section 13(2) of the Act"".

In Kandasami v. Food Inspector, Athoor 1981 L.W. (Cri.) 299, a Division Bench consisting of Natarajan and Maheswaran, JJ, on a reference

made regarding the correctness of the view taken by Paul J., in Crl.R.C. No. 7 of 1978 in his order dated 18th June, 1979, held that :-

If the report is received before the institution of prosecution, to which Court is the affected person to make his application ? There may be stations

where there may be more than one Magistrate to deal with cases filed under the Act. The affected person may not be in a position to know to

which Court he must make the application.

Their Lordships have also observed that ""the accused will be left wondering to working to which Court he should make application and as to what

he should make the application;

4A. The Government Advocate for Pondicherry drew my attention to a decision Babboo Vs. State, , wherein it was held by a single judge of that

Court that :

where the accused from whom the sample of cow''s milk was taken, was sought to be prosecuted after six months before the expiry of 10 months

from the date on which the sample was collected, it could not be said that the accused was deprived of an opportunity to avail himself of the

benefit of the provisions contained in Section 13, if the necessary precautions prescribed by the Rule for preserving the same have been taken.

Relying on the decision the learned Government Advocate submitted that even if the prosecution was launched after a delay of six months, such

delay would not vitiate the prosecution. After going through the decision I find that the said decision has no relevance to the present case. There

question in this case is whether the statutory right that is available to the accused has been deprived of by not sending a proper notice. I do not find

any material to show that the sample was preserved and it was in good condition. In this case even after the receipt of report of Public Analyst

Ex.P. 3 on 10-2-1982, the prosecution was launched after six months and Ex.P. 5 was issued on 12-8-1982. Certainly the accused was

prejudiced by not mentioning the same of the Court in the notice and it is not in dispute that there are number of Courts in Pondicherry and not only

the Court which is located in Pondicherry. On the other hand, the learned counsel for the petitioner Mr. T. S. Arunachalam, drew the attention of

this Court to decision of Allahabad High Court in Braj Bihari Lal v. State 1981 FAJ 149 wherein it was held that :

inasmuch as a valuable right is conferred on the accused to get the sample examined by the Central Food Laboratory, the accused is apprised of

the prosecution which has been launched against him so that he could move the Court in which the prosecution has been launched to send the

sample kept with the local (Health) Authority for analysis to the Central Food Laboratory. The provision being mandatory, it must be complied

within all the particulars. In the present case the report of the Analyst was despatched on 9-5-1978 while the compliant was instituted on 10-5-

1978. The applicant was not apprised of the name of the Court in which the prosecution was being launched and as such he could not approach

the Court within the prescribed period of ten days to send the sample for analysis to the Central Food Laboratory. Non-compliance of a

mandatory provision goes to the very root of the prosecution case, and therefore, the conviction of the applicant could not sustain.

The above said decision is directly applicable to the facts of the present case. In view of the fact that the name of the Court in which the

prosecution against the petitioner was launched was not mentioned in Ex.P. 5 notice u/s 13(2) of the Act, the entire prosecution against the

petitioner is vitiated. The conviction is not sustainable.

In the result, the revision is allowed. The conviction and the sentence awarded to the petitioner are set aside and he is acquitted of the charge.

Fine amount if paid is directed to be refunded to the petitioner.