State vs K. Ramaswamy

Ratnavel Pandian, J.—The State represented by the learned Public Prosecutor has directed this criminal appeal questioning the order of

acquittal made in C.C. No. 46 of 1980 on the file of the Court of the Sub-Divisional Judicial Magistrate, Ramanathapuram, acquitting the accused

of the offence punishable under Ss.7(1), 16(1)(a)(1) and 2(1a)(a)(m) of the Prevention of Food Adulteration Act, hereinafter referred to as the

Act.

The brief facts of the case as disclosed from the oral and documentary evidence can be stated as follows; P.W.1, the Food Inspector attached

to Kilakarai Town Panchayat on 31st October, 1979 at about 11-15 am, purchased 22 soda bottles containing soda colour, each bottle with a

capacity of 785 millilitres, for the purpose of analysis from the accused after serving Ex.P1, Form 6 notice, on him. Ex.P2 is the receipt passed by

the accused, accepting the receipt of a sum of Rs. 16.20 towards the price of the articles of food purchased by P.W.1. This food article was

intended for sale and for human consumption. P.W.1 divided the 12 bottles of soda into three equal parts and after observing all the statutory

formalities deposited two of the parts with the Local Health Authority and sent one part of the samples to the Public Analyst, who on analysis of

the food article, gave his opinion under Ex.P6 that the sample contained saccharin in excess of the maximum permitted limit to the extent of 80%.

On receipt of Ex.P6, P.W.1 instituted the prosecution on 8th February, 1980. After the institution of the prosecution the Local Health Authority

served the copy of the notice under Ex.P7 on the accused as required under S. 13(2) of the Act on 20th February, 1980.

The accused denied the offence. The court below acquitted the accused on the ground that there was violation of R.18 of the Rules made under

the Act and that P.W.1''s evidence stands uncorroborated as P.W.2 had not supported the Prosecution case. The learned Public Prosecutor

would contend that these two reasonings are erroneous and untenable and the Court below is not justified in rejecting the evidence of P.W.1,

especially when his evidence is corroborated by the documentary evidence, Ex.P1 to P3. I accept the contention of the learned Public Prosecutor.

On going through the judgment and records in this case, I find that there is an illegality in the proceedings of the prosecution, in that there had

been an ''unexplained delay of 12 days in serving the copy of the notice on the accused that is contemplated under S. 13(2) of the Act which is

mandatory. Admittedly, the prosecution was instituted on 8th February, 1980 and Ex.P7 notice under S. 13(2) of the Act was served on 20th

February, 1980.

This Court in Abdul Maieed v. State by Food Inspector 1981 L.W. Crl. 302 and in Sebastian v. State 1982 Crl.L.J. 1899 : 1962 L.W. (Crl.)

26 has held that S. 13(2) of the Act is mandatory and that any breach of that section could vitiate the trial. As in the present case, there is a breach

of the mandatory provisions of the Act, this order of acquittal is not liable to be interfered with.

In the result, the Criminal appeal is dismissed.