State vs Durairajan

K.M. Natarajan, J.—This appeal by the State, represented by the Public Prosecutor, is directed against the order of acquittal passed by the learned Sub Divisional Judicial Magistrate, Nagapattinam, acquitting the respondent herein, who was prosecuted for the offences under Ss. 7 (i) and 16 (1- A) (i) read with S. 2 (ia) (a) and (m) of the Prevention of Food Adulteration Act (hereinafter referred to as ''the Act'').

The facts which are necessary for the disposal of the appeal are briefly as follows: P.W. 1 the Food Inspector of Thirumarugal Panchayat Union was waiting at Nadukkadai Street on 27th July, 1981 at about 9.30 a.m. for taking sample of the food for analysis. At that time, one Dakshinamurthi and Manjini were also present along with him. The respondent/accused came in a cycle and he was found carrying a can containing milk for sale. When the respondent was questioned, he said that the can contained cow''s milk and buffalo''s milk and the quantity was 4 litres and that he was selling the same at the rate of Rs. 2 per litre. Thereafter, P.W. 1 offered to purchase 750 ml. milk for the purpose of taking sample and sending it for analysis and also served a notice in Form VI under Ex. P1 on the respondent. P.W. 1 purchased 750 ml. of milk by paying Rs. 1.50 and obtained the receipt Ex. P2, attested by witnesses. Thereafter, he divided the same into three equal parts and pat them in three empty dry bottles, added 20 drops of formalin, corked thems sealed, tied and affixed labels as per the Rule, and then sent one sample bottle to the Public Analyst, Guindy, and the remaining two bottles to the Local (Health) Authority and got the necessary acknowledgements. The Public Analyst''s report Ex. P7 was received by P.W. 1 on 13th August, 1981, which is to the effect that the sample was deficient in solids not-fat to the extent of at least 45 per cent. Thereafter, P.W. 1 filed the complaint on 22nd August, 1981 and served a notice on the respondent under S. 13(2) of the Act on 23rd August, 1981 under Ex. P8 and got the acknowledgement of the respondent under Ex. P9. On the application filed by the respondent for sending the sample for a second opinion by the Central Food Laboratory, P.W. 1 sent a requisition to the Local (Health) Authority and then produced the sample bottle in Court on 1st October, 1981. Ex. P12 is the report of the Central Food Laboratory, which is also to the effect that the sample does not conform to the standards laid down for mixed milk under the provisions of the Act and the Rules made thereunder in that milk solids-not fat content falls below the minimum specified limit of 8.5 per cent and that the milk fat content falls below the minimum specified limit of 4.5 per cent.

When the respondent was examined under S. 313, Crl.P.C., he had stated that he had taken the milk for his master in connection with the sunnath marriage end that it was not taken for sale and that his signatures were taken in some papers after the milk was taken from the can and that the case has been foisted. One witness was examined on the side of the respondent as D.W.1. He had stated that on 28.7.1931, there was a sunnath marriage for his grandson and for that purpose he required milk. He purchased the milk at about 8.30 a.m. on 27.7.1981 at Kattumapatti sear Thittacheri and sent the same through the respondent to his house. Later be came to know about the taking of sample by P.W. 1. According to him, the milk which was given by him to the respondent was only 1 1/2 litres.

The learned trial Magistrate, for the reasons assigned in his judgment, acquitted the respondent. Hence, the State has preferred this criminal appeal.

It is seen from the judgment of the trial Court that the reasons for the acquittal of the respondent are as follows:

The prosecution has not established that the respondent is a milk vendor;

There was a delay in sending the second sample to the Central Food Laboratory; and

There was a delay in launching the prosecution and that the evidence of the Food Inspector alone is not sufficient for convicting the respondent.

Learned Government Advocate Mr. Kannappa Rajendran submitted that all these reasons are unsustainable and are against the well established principles laid down by this Court and the Supreme Court in the earlier decisions and that this wrong approach of the trial Court led to the acquittal of the respondent and that it should be set aside and the respondent convicted. According to the learned Government Advocate, in this case, admittedly, P.W. 1 purchased milk for sample from the respondent for Rs. 1.50 and that the said purchase itself is sufficient to satisfy the requirements of law that the milk which was brought by the respondent was only for sale. In support of the contention, the learned Government Advocate relied on the following decisions. In The Food Inspector, Calicut Corporation Vs. Cherukattil Gopalan and Another, , the Supreme Court has held that the sale of sample of a food article to the Food Inspector amounts to a "sale" as defined in S.2(xiii) of the Act. In Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, , the Supreme Court consisting of five Judges held that the Act gives a special definition of sale, in S.2(xiii) of the Act which specifically includes within its ambit a sale for analysis and a sale for analysis must be regarded as sale even if the transaction contains an element of compulsion. IN State of Tamil Nadu Vs. R. Krishnamurthy, it has been held by the Supreme Court that a sale "for analysis'' can never be a sale "for human consumption" but it is nonetheless a sale within the meaning of the definition. It is an unqualified sale for the purposes of the Act. In State v. Vaithi 1983 L.W. (Crl.) 11 : 1983 (Crl.) L.J. 1565, Maheswaran, J., had an occasion to consider the earlier decisions and held that a sale, though made under compulsion of law. Is sale within S.2(xiii) of the Act. In view of the ratio laid down in the above decisions, the reason given by the learned trial Magistrate that the prosecution has not established that there was a sale of milk to P.W. 1 by the respondent and that the milk was not intended for sale cannot be accepted and is unsustainable.

So far as the delay of 9 days in launching the prosecution is concerned, it is seen that P.W. 1 received the Public Analyst''s report Ex P7 on 13.8.1981 and he filed the complaint on 22.8.1981. It is nowhere provided in the Act fixing the time limit for filing the complaint. But it is only to be censured if there is any delay and by such delay the accused is in any way prejudiced. But in the instant case, it cannot be said that by the delay of only 9 days, the respondent was in any way prejudiced and there is nothing made out to show that the respondent was prejudiced by the delay in launching the prosecution. Hence I do not find any merit in this contention also.

The other reason given by the learned trial Magistrate and also stressed by the Learned Counsel appearing for the respondent is that the evidence of P.W. 1, the Food Inspector, alone is not sufficient to convict the respondent, when the prosecution has not chosen to examine the attestors to the mahazar and as such no conviction could be had on the sole testimony of the Food Inspector. Learned Government Advocate drew my attention to the decisions of this Court and that of the Supreme Court and submitted that the obligation of calling witnesses under S.10(7) of the Act is satisfied by getting the attestation and the failure to examine them would not in any way vitiate the case of the prosecution and the evidence of the Food Inspector is not in the nature of accomplice and his evidence, even otherwise acceptable, alone is sufficient to base a conviction and the non examination of mahazar witnessses cannot be a ground for acquitting the accused. In support of this contention, he drew my attention to the following decisions. In Prem Ballab and Another Vs. The State (Delhi Admn.), , the Supreme Court has held that there is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector and it is only out of a sense of caution that the Courts insists that the testimony of a Food Inspector should be corroborated by some independent witness. The Supreme Court also held that this is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law; if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the vice of bribing panch witnesses. In Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, it has been held by the Supreme Court that the obligation which S. 10(7) of the Act casts on the Food Inspector however, is to ''call'' one or more persons to be present when he takes action and the facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate and as he could not certainly compel their presence, the prosecution was relieved of its obligation under the provision and, therefore, non compliance with it did not vitiate the trial and more over as the Food Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction. In State by the Public Prosecutor v. Marappan 1980 L.W. (Crl.) 37, Paul, J. has held, that law does not require a plurality of witnesses and a conviction can undoubtedly be based on the testimony of a single witness, provided that the evidence of that witness is trustworthy and furthermore. S.134 of the Indian Evidence Act itself clearly states that no particular number of witnesses shall in any case be required for the proof of any fact. In State v. Ramaswamy 1983 L.W. (Crl.) 104. Ratnavel Pandian, J., has held that the trial Magistrate was not justified in rejecting the evidence of P.W. 1, especially when his evidence was corroborated by the documentry evidence Ext P1 to P3 and that his evidence alone is sufficient for conviction. In view of the ratio laid down in the above decisions and when there is nothing in the evidence of P.W. 1 to hold that his evidence is untrustworthy, the trial Court ought to have acted on the evidence of P.W. 1 and the respondent ought not to have acquitted on the ground that no reliance can be placed on the evidence of the Food Inspector P.W. 1 in view of the fact that the mahazar witnesses were not examined.

Learned Counsel for the respondent also put forth a new ground in the appeal that there is nothing to show that the Food Inspector stirred the other portion of the milk before taking the sample and as such the sample taken cannot be a representative sample of the entire milk and on that ground also, the order of acquittal should be confirmed. On the other hand, learned Government Advocate drew my attention to the decision of the Supreme Court in State of Kerala and Others Vs. Alasserry Mohammed and Others, whereto it was held that in our statute the ingredient of the offence is, as mentioned in the 7th section of the Act, manufacturing for sale, storing, selling or distributing any adulterated food and if the food sold to the Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person and a person who stores or sells such sample is liable to be punished under S.16(1)(a)(i) of the Act. The above decision was followed by this Court in State v. Vaithi 1983 L.W. (Crl.) 11 : 1983 Crl.L.J. 1565. In that case, Maheswaran, J, held that if the sample of milk is found to be adulterated, the accused is not entitled to acquittal. In view of the above decisions of the Supreme Court and this Court, failure of the Food Inspector to stir the remaining contents would not in any manner vitiate the trial and the fact that the sample which was taken from the respondent itself is adulterated H sufficient 10 sustain a conviction.

The last of the reasons given by the trial Magistrate and vehemently stressed by the Learned Counsel appearing for the respondent is that in the instant case though the respondent was served with a notice under S 13(2) of the Act on 23.8.1981, he has submitted an application on 28.8.1981, within a period of 10 days prescribed under S.13(2) of the Act, but the learned trial Magistrate in his memo, dated 25.9.1981 called upon the Local (Health) Authority to produce the sample bottle for sending the same to the Director of Central Food Laboratory for opinion. It is seen that the sample bottle was produced by the Local (Health) Authority only on 1st October, 1981 and subsequently it was received by the Central Food Laboratory on 12th October, 1981 and then the opinion was given. There was a delay of 44 days from the date of application made by the respondent till the date when the sample bottle was received by the Central Laboratory. It is seen from S. 13 (2A) of the Act that when an application is made to the Court under sub-S. (2), the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the laid authority and upon such requisition being made, the said authority shall forward the part or parts of take sample to the Court within a period of five days from the date of receipt of such requisition. Under S. 13(2B) of the Act it is provided that on receipt of the part of the sample from the Local (Health) Authority under sub-S. (2A), the Court shall first ascertain that the mark and seal or fastening as provided in Cl. (b) of sub S. (1) of S. 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part of, as the case may be. One of the parts of the sample under its own seal to the Director of the Central Food Laboratory, who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. On going through the above provisions under S. 13(2A) and (2B) of the Act, find that the Legislature has fixed a period for sending the sample bottle by the Local (Health) Authority to the Court within five days from the date on which an application is made by the accused for forwarding the same to the Director of Central Food Laboratory and the Director of Central Food Laboratory also should submit a report within one month from the date of receipt of the part of the sample. In the instant case, unfortunately, the learned trial Magistrate did not take any action on the application made by the respondent on 28th August, 1981, till 25th September, 1981 and only thereafter the Local (Health) Authority had sent the sample on 1st October, 1981, within five days from the date of receipt of such requisition from Court. It is only on account of the delay of 28 days on the part of the trial Court, the respondent is now deprived of the opportunity of having a second sample analysed by the Director of Central Food Laboratory in time. In this connection, learned Government Advocate drew my attention to the decision of the Supreme Court in Tulsiram Vs. State of Madhya Pradesh, . That was a case wherein the Supreme Court had occasion to consider the word ''immediately'' in R. 9A of the Prevention of Food Adulteration Rules, 1955 in respect of service of notice under S. 13 (2) of the Act and in that case it was held that the expression "immediately" in R. 9A is intended to convey a sense of continuity rather than urgency and what must be done is to forward the report to the person from whom the sample was taken at the earliest opportunity, so as to facilitate the exercise of the statutory right under S. 13 (2) of the Act in good and sufficient time before the prosecution commences leading evidence and the non-compliance with R. 9A is not fatal and it is a question of prejudice. It was also observed in the laid decision as follows :

In the context the expression ''immediately'' is only meant to convey ''reasonable despatch and promptitude'' and no more. The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence. First to construe ''immediately'' as meaning ''at once'' or ''forthwith'' and next to hold delay to be fatal to the prosecution would perhaps be to make R. 9A ultra vires S. 13 (2). We do not think it is permissible to interpret R. 9A. in such a way. The real question is, was the Public Analyst''s Report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the Court to send one of the samples to the Central Food Laboratory for analysis. If after receiving the Public Analyst''s Report, he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course he is able to establish some other prejudice.

In the instant case, the respondent has chosen to apply to the Court to send the second sample to the Central Food Laboratory for analysis even within five days from the date of receipt of notice under S. 13(2) of the Act though ten days, time was allowed. But the learned trial Magistrate did not choose to require the Local (Health) Authority to send the sample to the Court for the purpose of forwarding the same to the Director of Central Food Laboratory and it is only after a lapse of nearly one month, a memo was sent to the Local (Health) Authority and thereafter the sample bottle was received by the Court and sent to the Director of Central Food Laboratory, which was received by him only on 12th October, 1981. Certainly even applying the ratio laid down by the Supreme Court to the facts of this case, it is clear that it is only on account of the dilatoriness on the part of the officialdom, the respondent, who had availed the opportunity of applying to the Court to send one of the samples to the Central Food Laboratory, is deprived of the opportunity of having the sample analysed by the Central Food Laboratory in a best way and certainly, in the instant case on account of the delay, the respondent is prejudiced. It has to be noted that even though there is no time limit for the Court to require the Local (Health) Authority to produce the second sample for sending it to the Director of Central Food Laboratory, the learned trial Magistrate, in view of the spirit of S. 13 (2A) and (2B) of the Act, ought to have taken prompt action for getting the sample for the purpose of forwarding the same to the Central Food Laboratory for analysis. It is very unfortunate that the trial Court did not bestow any attention to the provisions of the Act and slept for nearly one month and that caused prejudice to the respondent. It is only on the last ground I am of the view the order of acquittal has to be sustained.

In the result, appeal fails and the order of acquittal passed by the trial Court is confirmed.