Shanmugham Chettiyar vs State of Kerala

S. Marimuthu, J.—This Criminal Revision Petition arises against the conviction and sentence delivered by the Sessions Judge, Trivandrum in Crl. Appeal No. 50 of 1992. That Criminal Appeal arose challenging the conviction and sentence delivered by the Judicial I Class Magistrate, Neyyattinkara finding the revision Petitioner guilty u/s 7(i) and (iii) of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act) and thereby sentenced him to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 1,000 in default of payment of fine to undergo simple imprisonment for a further period of 3 months. Before the Magistrate, on the prosecution side 5 witnesses were examined and Exts. P-1 to P-34 were marked.

The above judgment of the learned Sessions Judge confirming the conviction and sentence delivered by the Magistrate is challenged in this Crl. Revision Petition. The only point that was urged before me is whether the conviction and sentence delivered by the trial Magistrate which were confirmed by the Sessions Tudge are sustained in accordance with law and fact. The first submission of the learned Counsel appearing for the revision Petitioner would be that the revision Petitioner shall not be deemed to have committed an offence in respect of the sale of adulterated article since the revision Petitioner had purchased the same with a written warranty in the prescribed form and that he had stored the article in his possession properly, the sample of which was purchased by P.W. 1, Food Inspector, Trivandrum Circle. No doubt, the above submission of the learned Counsel was on the footing of Section 19 of the Act. In support of the above submission in respect of the warranty, the learned Counsel relies upon Ext. P-15 Cash Bill or a bill issued in favour of the revision Petitioner by his manufacturer for a sum of Rs. 15 dated 1st July 1987. Section 14 of the Act provides that a bill, cash memorandum or invoice etc. can be deemed as a warranty if it is in respect of an article of food. Hence it can be rightly said that Ext. P-15 is not a warranty as defined in the Act. When the revision Petitioner is taking a defence u/s 19 of the Act on the footing that Ext. P-15 is a warranty, necessarily, the burden lies on the revision Petitioner (2nd accused) that he purchased the food article, and he haa stored it properly till it was sold to the P.W. 1, Food Inspector. In the instant case, no evidence is available on the side of the revision Petitioner that the small 6 packets of sample of turmeric powder sold by the revision Petitioner to the Food Inspector (P.W. 1) is a food article. Therefore, the revision Petitioner cannot take shelter u/s 19 of the Act by way of defence to escape from his criminal liability. Hence the defence taken by the learned Counsel u/s 19 of the Act has to be necessarily rejected as not proved by the revision Petitioner, Now, the next submission of the learned Counsel appearing for the revision Petitioner would be that P.W. 1 Food Inspector had not complied with Rule Nos. 17 and 18 of the Act which are relating to the manner of despatching containers of samples; and the memorandum and impression of seal to be sent separately to the Public Analyst. It was also his contention that the ingredients of Rule No. 12 and Form No. VI prescribed under the said Rule were not followed by P.W. 1. These infirmities and flaws committed by the P.W. 1 are more than enough to acquit the revision Petitioner. In support of the above submisiion, the learned Counsel for the revision Petitioner relies upon the principle laid down by the Supreme Court in State of Maharashtra v. Rajkaran 1987 (Supp.) S.S.C. 183.

The learned Addl. Director General of prosecution submitted that Rule Nos. 17 and 18 of the Act as well as Rule 12 with Form No. VI have been complied with by P.W. 1. Therefore the revision Petitioner has committed the offence u/s 7(i) and (iii) of the Act, punishable u/s 16(1)(a) of the Act. Now I will take up Rule 12 and Form No. VI prescribed thereunder. Rule 12 of the Act would, provides that when a Food Inspector takes a sample of article for the purpose of analysis, he shall give notice of his intention to do so in writing in Form No. VI. Form No. VI prescribes as follows:

FORM VI

To

............................ ............................ I have this day taken from the premises of....situated at....samples of the food specified below to have the same analysed by the public analyst, for....Details of food.

[Code Number and Serial Number Food Inspector of Local (Health) Authority] Area.... Place: Date:

In the above Form No. VI, the inclusion of Code. No. and Serial No. of the Local Health Authority have been included or incorporated by notification No. G.S.R. 618(E) dated 16th May 1988 (with effect from 16th November 1988) as corrected by notification No. G.S.R. 855(E) dated 12th August 1988. Therefore the inclusion of Code No. and serial of the Local Health Authority in Form No. VI came into force only from 16th November 1988. In the instant case, P.W. 1 took the sample from the shop of the revision Petitioner who sold the article on the date of occurrence, namely, 13th July 1987. The revision petitibner is the husband of the shop owner who has been examined as P.W. 5. The licence also has been issued in her favour. The Form No. VI in this instant case bas been marked as Ext. P-2. Since the ocurrence was prior to the inclusion of Code No. and Serial No. of Local Health Authority they are not found in Ext. P-2. Therefore, Ext. P-2 is not contrary to the original Form No. VI of the Act. Rule No. 12 and Form No. VI prescribed, thereunder are intended to be served on the accused from whom the sample was taken. Form No. VII is known as memorandum to the public Analyst as provided in Rule No. 17. As per the evidence of P.W. 1, he found 10 packets containing turmeric powder adulterated with wheat and starch, out of which, he purchased sample of six packets paying a sum of Rs. 11.40 for which he was given Ext. P-3 voucher by the revision Petitioner. Each of 6 packets of turmeric powder purchased by P.W. 1 contains the label with the words ''M.T. Mark Manjal Podi''. But Ext. P-15 which I have discussed above was issued by one Mani Traders, Karamana, Trivandrum. Therefore, it is difficult to accept the case of the revision Petitioner that the sample of 6 packets of turmeric powder purchased by P.W. 1 were manufactured by Mani Traders, Karamana, Trivandrum. For, as I have stated above, the sample contains the words ''M.T. Mark Manjal Podi'' Murugan Traders, Trivandrum. Therefore, it is further clear that the samples of turmeric powder contained 6 small packets taken by P.W. 1 were not purchased by the revision Petitioner under Ext. P-15. Hence, he has lost his defence u/s 19 of the Act. Now, the controversy as borne out from the arguments of both sides comes within a narrow campus, namely, Rules 17 and 18 of the Act. Rule No. 17 is as follows:

Manner of despatching containers of samples.-The containers of the samples shall be despatched in the following manner, namely:

(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the Public analyst immediately but not later than the succeeding working day by any suitable meens,

(b) The sealed containers of the remaining two parts of the sample and two copies of the memorandum in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means.

(c) The sealed container of one of the remaining two parts of sample and a copy of the memorandum in Form VII kept with the Local (Health) Authority shall within a period of 7 days be sent to the Public Analyst on requistion made by him to it by any suitable means....

Rule 18 is as follows:

Memorandum and impression of seal to be sent separately.-A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day.

Now, the point is whether P.W. 1 has complied with the mandatory provisions enjoined in Rule Nos. 17 and 18 of Act. The Apex Court in the citation referred to above makes clear that Rules 17 and 18 of the Act ate mandatory. It is needless to say when mandatory provision of law is violated or not complied with, it leads to serious end, resulting to set the accused like the revision Petitioner at large. The evidence of P.W. 1 would be that at the time of purchasing the samples from the shop of the revision Petitioner, he prepared 5 copies of Form No. VII and one copy of Form No. VII has been marked as Ext. P-5. As per Rule 17(a), the samples which he purchased must be divided into 3 equal parts (in this cass two packets each) and one such sample part along with the original of Form No. VII should be sent in a sealed packet to the Public Analyst immediately for his report. But the evidence of P.W. 1. discloses that he sent one of the 5 copies of Form No. VII and one of the 3 parts of the sample and also one of the specimen impressions of the seal used to seal the parts were put in a separate packet and sent it to the Local Public Analyst. Rule 17(a) does not contemplate that the specimen impression of the seal must be sent along with memorandum of Form No. VII and the sample. Further, it indicates that only the original of Form No. VII should be sent to the Analyst. But the evidence of P.W. 1, as noted above would be that he sent only one of the 5 copies of Form No. VII, one of the three parts of the sample and also one of the copies of the specimen impression of the seal in a packet to the Public Analyst. No doubt, Rule No. 18 does disclose that one of the copies of Form No. VII and the specimen impression of the seal should be sent in a sealed cover to the Analyst. Rule 17 and 17(c) were amended and came into force as per the notification No. G.S.R. 4(E) dated 4th January 1977, and notification No. G.S.R. 91(E) dated 24th February 1995 with effect from 4th January 1977 and 24th August 1995 respectively. Therefore, it is quite cleat that Rule 17(a) came into force from 4th January 1977 prior to the occurrence in this case. Therefore Rule 17(a) is to be complied with by P.W. 1. As pointed out above, P.W. 1 had overacted in sending the specimen impression of the seal under Rule 17(a). His evidence is also as against the Rule 17(a) in sending the copy of the memorandum. As per Rule 17(a) the original of Form No. VII should have been sent. So far as Rule 17(b) is concerned, it also came into force from 4th January 1977.

The learned Additional Director General of Prosecution referred to Rule 17(a) as per which the specimen impression of the seal has also should be sent to the Analyst along with the original of Form No. VII. That procedure was adopted before the amendment dated 4th January 1977 and the occurflence in this instant case had occurred only after the amendment. Amended Rule 17(a) does not include the word the specimen impression of the seal.

Now I will take up Rule 17(b). The evidence of P.W. 1 in this regard would be that he entrusted copies of Exts. P-5 and P-6 along with the remaining two parts of the sample and also tke intimation u/s 11(1)(c)(i) to the Local (Health) Authority on the same day. No doubt, u/s 11(1)(c)(i) intimation should be sent to the Local (Health) Authority stating that one of the parts of the sample has to be sent to the Public Analyst. Therefore, his above evidence, no doubt, is in accordance with Section 11(1)(c)(i). But so far as Rule 17(b) is concerned, he has not complied with the mandatory provision, for, they have to be sent in a sealed packet. So, there is a clear violation of Rule 17(b) of the Act. So far as Rule 18 is concerned, it is the evidence of P.W. 1 that he sent a copy of Ext. P-5 and also a copy of Ext. P-6 in two separate covers. Here also he has violated the provision laid down in Rule 18. It is quite clear that a copy of the memorandum and the specimen impression of the seal should be sent to the analyst in a sealed packet. They should not have been sent in separate sealed covers, Form No. VII, as pointed out above, is intended to be sent to the Public Analyst. Rule 17(a) and Rule 18 have been framed as to how Memorandum, its copy, sample and specimen impression have to be sent to the Public Analyst. So, Form No. VII, as I noticed above, is only to be sent to the Public Analyst. First part of Form No. VII relates to Rule 17(a). The second part of Form No. VII, that is copy of the memorandum and specimen impression is relating to Rule 18. Ext. P-5 is relating to the despatch of the sample and the memorandum as provided under Rule 17(a) and the despatch of copy of the memorandum and specimen impression of the seal under Rule 18. In other words, for sending the above particulars two separate sealed packets, as per Rule No. 17 and Rule No. 18 are to be sent. But Ext. P-5 memorandum alone has been prepared and sent to the Analyst. Ext. P-5 on the look of it would go to show that it was intended for despatching the particulars under Rule 17(a) and Rule 18 of the Act. The evidence of P.W. 1, as I have pointed out above, would be that he sent Exts. P-5 and P-6 in two separate covers in order to attract Rule No. 18. There also he has violated the mandatory provision of Rule 18.

It is also the submission of the prosecution that as per the conditions incorporated in the licence issued to the disputed grocery shop, the revision Petitioner is Expected to display fixing the price of the articles, the quality of the articles, the hygienic manner in which they are stored etc. It seems that there is no provision in this Act empowering the State Government to frame rules for issuance of licence with such conditions for running a grocery shop like the revision Petitioner''s shop. However, the State Government has got power to issue licence with conditions to run any business like the present one. Any of such conditions stipulated in the licence, if violated by the licensee, the licence can be straight away cancelled or suspended and it does not amount to a commission of an offence under the present Act. It is also borne in mind in this context that the prosecution has come with a clear case that the revision Petitioner has committed an offence u/s 7(i) and (iii) and therefore punishable u/s 16 of the Act. The evidence available on record would go to show that the samples purchased by P.W. 1 do not bear the label containing the words that they are not for human consumption. When those words are not found in the same samples, the presumption would be that they are only food items and not otherwise. But regarding the above presumption now raised by the prosecution, I do not find any specific provision in the Act except Section 19, which I have already discussed in detail. A careful reading of Rules 17, 18, Form No. VI, VII, etc. would go to show that they are relating to food items. When the word food article is not found there, I feel that it is the duty of the prosecution to establish that the samples are only a food article, which have been adulterated, though there is no specific label affixed on the sample packets with the wording that they are not intended for human consumption. The prosecution also drew my attention to the decisions of this Court in M. Rajan Vs. Food Inspector, Palghat Municipality and Another, as well as Food Inspector, Palghat v. P. Sathish Kumar and Anr. 1985 (2) F.A.C. 131. It is a submission of the prosecution that as per the principle laid down in the above decisions Rules 17 and 18 were not directly challenged by the revision Petitioner in both the Courts below, particularly, before the trial Court. Therefore, before this Court Rules 17 and 18 cannot be invoked by the revision Petitioner. That submission is not correct. The principle laid down there is not for the aspect set forth by the prosecution. Though the revision Petitioner has not raised the question involved under Rules 17 and 18 of the Act before the Courts below, now the revision Petitioner is not barred to raise the same before the High Court. For, even a question of fact when interpreted in irrelevant manner without any basis, the High Court can interfere. But, so far as a question of law is concerned though not canvassed in the Courts below it can be raised before the High Court. Even if it is not argued by both the counsel, the High Court itself can invoke the law and act upon it. As I have adverted to above, it is obviously clear from the oral testimony of P.W. 1, Food Inspector that he has acted contrary to the mandatory provisions laid down in Rules 17(a) and (b) as well as 18. Therefore as settled by the Apex Court in the recent decision referred above, violation of the mandatory provision of Rules 17 and 18 will give a shadow of doubt on the case of the prosecution. In this case, the prosecution itself created a shadow of doubt on their case. Therefore, the revision Petitioner is entitled to a benefit of doubt.

In the result, the revision petition is allowed by setting aside the conviction and sentence imposed by both the Courts below and the revision Petitioner is acquitted. Fine amount, if any paid, will be refunded to the revision Petitioner.