State vs Balakrishnan

Padmini Jesudurai, J.—This appeal by the State, is directed against the acquittal of the respondent of offences under Ss.7(i) and 16(iA), (i) read with S.2(1a)(a) and (m) Rule 27 and 44(n) of the Prevention of Food Adulteration Act 1954, by the Judicial Magistrate Ramanathapuram in C.C. No. 656 of 1986.

The allegation against the respondent was that the sample of Turmeric Powder taken from his shop by the Food Inspector P.W.1 was found to contain 5 parts of lead chromate per million parts and lead chromate is injurious to public health arid as per Clause A.06.20.01 in Appendix B to the Prevention of Food Adulteration Rules, 1955, turmeric powder has to be free from lead chromate, the grounds for acquittal being that the lead chromate could have got into the sample in the process of powdering the turmeric in the rice Mill and bringing it in lead quoted tin and the respondent could not have internationally adulterated it, and also that the adulteration was only of a very small quantity and there was no indication that the turmeric powder was intended for human consumption. Challenging the grounds of acquittal, the State has filed this Appeal.

During trial, on behalf of the prosecution the Food Inspector was examined as P.W.1 and Exhibits PI to P9 were marked. The respondent denied having committed any offence and examined himself as D.W.1 and stated that the sample was not intended for human consumption, but was intended for religious purposes, that he had turmeric powdered in a rice mill and brought the powdered turmeric in moist tin coated with lead.

The learned Public Prosecutor submitted that no mens rea was necessary for the offence under the Food Adulteration Act and that the presence of lead Chromate, in however small a quantity would amount to adulteration and a serious view had to be taken since the Public Analyst in his report Exhibit P.8 had stated, that the same was injurious to health. The learned Public Prosecutor also urged that the turmeric powder, which is general or commonly used for human consumption, should be presumed to be for human consumption when kept in a grocery shop.

Per contra, Thiru V. Venkataswamy, learned counsel for the respondent would contend that the trial Court had rightly accepted the explanation offered by the respondent and had rightly acquitted the respondent particularly when the respondent himself had given evidence as D.W.1 and the acquittal therefore ought not to be disturbed.

The question that arises for consideration is whether the acquittal can be legally sustained.?

The Public Analyst has found 5 parts of lead chromate per million parts in the sample and has also certified that lead chromate is injurious to public health. It is the specific case of the respondent that it was he who got the turmeric powdered in a rice mill and brought it in a lead coated wet tin and in that natural process, the lead chromate might have got mixed in the sample. Accepting the contention, the learned Magistrate has held that the adulteration could not have been intentional. This finding of the learned Magistrate is based upon an erroneous conception of law. It is well settled that under the Prevention of Food Adulteration Act, nomens rea need be proved. This has been laid down by a Constitutional Bench of the Supreme Court in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, and reiterated by the Supreme Court in Pyarali K. Tejani Vs. Mahadeo Ramchandra Dange and Others, and Dr. Kulbhushan Kumar Vs. Smt. Raj Kumari and Another, . The prosecution need only prove the fact of adulteration and is not called upon to prove that the adulteration is intentional. The first ground for acquittal cannot be legally sustained.

Equally unsustainable is the second ground for acquittal that the adulteration is so negligible, being only five parts per million, that the respondent would be entitled to an Acquittal. When Appendix B of Clause A.06.20.01 of the Prevention of Food Adulteration Rules 1955 specifically prohibits addition of lead chromate and requires turmeric powder to be free from lead chromate, presence of the prohibited material in however small a quantity, would still be a violation of the Statute. The learned Magistrate was not justified in interpreting the law in the above manner particularly when the Public Analyst has stated in Exhibit P8, that lead chromate is injurious to public health. Turmeric is an article of food used extensively in cooking and the intake of such adulterated matters would be detrimental to public health and the public at large.

The final ground for acquittal that the prosecution had not proved that the turmeric powder was meant for human consumption is also Unsustainable in law. The sample had been taken from a grocery shop where edible articles are kept. The Supreme Court in State of Tamil Nadu v. R. Krishnamurthy AIR 1980 Supreme Court 234 has held that articles of food generally or commonly used for human consumption, should be taken to have been kept and intended for human consumption. It is not the case of the respondent that the packet of turmeric powder contained any indication that it was not meant for human consumption. While so, the inference is that the turmeric powder was intended for human consumption.

None of the grounds for acquittal can be upheld and as such the Trial Court was in error in acquiring the respondent. The acquittal is, therefore, set aside and the respondent is convicted for the offences under Ss.7(1) and 16(iA), (i) read with S.2(ia) (a) and (m) Rule 27 and 44(n) of the Prevention of Food Adulteration Act and sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs. 1000/- in default imprisonment for a period of two weeks.

It has been brought to my notice that the Government of Tamil Nadu has passed G.O.Ms. No. 180, Home, (Prisons IV) Department dated 28.1.1989 and G.O.Ms. No. 781, Home (PRC) Department dated 11.4.1990 both under S.432 of Criminal Procedure Code, each giving remission of imprisonment for a period of six months to convicted persons. Though the respondent is being convicted in the appeal now still by virtue of the law laid down by the Supreme Court in Maru Ram and Others Vs. Union of India (UOI) and Others, , the present conviction dates back to the date of the judgment of the trial court which gets substituted by this judgment and the respondent would be entitled to all the benefits, which he would have got, had he been convicted by the trial court. The respondent therefore is entitled to the benefit of the two Government orders and the entire sentence of imprisonment of six months, would stand remitted under any one of the Government orders. Time for payment of fine is two months from the date of the receipt of the copy of this judgment by the trial court. It is made clear that the remission Government Orders would not apply to imprisonment in default of payment of fine. In view of the fact that the entire sentence of imprisonment is remitted there is no need for the petitioner to surrender to custody, if the fine is paid by him. If the fine is not paid the learned Magistrate shall enforce the default clause.

In the result, the appeal is allowed as stated above.