State vs K. Velu

Arunachalam, J.—The State represented by the learned Public Prosecutor has chosen to challenge the sustainability of the acquittal of the

Respondent, of an offence punishable under Sections 7(1) and 16(1)(a)(i) read with Section 2(i-a)(a)(m) of the Prevention of Food Adulteration

Act, hereinafter referred to as the Act and Rules 44(c) and 47 of the Prevention of Food Adulteration Rules, recorded by the Sub-Divisional

Judicial Magistrate, Thanjavur, in C.C. No. 339 of 1981.

The prosecution case will have to be stated in brief for the disposal of this appeal. P.W.1, the Food Inspector of Attur Town Panchayat,

inspected the tea stall of the Respondent situated at Rayiladi Street, Ammapet at or about 8.45 a.m. on 29-12-1980. After expressing his intention

to purchase tea for the purpose of analysis, he obtained 750 ml. of tea from the Respondent, after paying the sale consideration of Rs. 2.40. A part

of the sample purchased was forwarded to the Public Analyst, Guindy, for test and report. Ex.P5 the report of the Public Analyst, disclosed that

the sample contained 160 parts of saccharin per million parts. Rule 44(g) read with Rule 47 of the Prevention of Food Adulteration Rules,

prohibits the addition of saccharin to any article of food except carbonated water. Therefore, the Public Analyst opined that the tea analyzed by

him was not of the prescribed standard. After initiating prosecution, intimation u/s 13(2) of the Act was served on the Respondent.

The case of the defence was that the sampling was not done as alleged by P.W.1 and even the sale consideration was not paid.

The trial Magistrate chose to acquit the Respondent on a single ground. According to the learned Magistrate, the mandate of Section 11(1)(c)(i)

of the Act had been violated, since while sending one of the parts of the sample seized for analysis to the Public Analyst, P.W.1 had not sent

intimation to the Local (Health) Authority.

Mr. A.S. Chakravarthy, the learned Government Advocate appearing on behalf of the Appellant contended, that Form VII along with the

remaining two sample bottles had been forwarded to the Public Analyst by P.W.1 and the mandate of Section 11(1)(c)(i) had been followed in

spirit. He also brought to my notice the view taken by me in C.A. Nos. 226 and 229 of 1986 dated 12-11-1990, holding that compliance in spirit

of this provision, though not in letter, can cause no prejudice to the accused, if one were to keep in view the object and purpose of the Prevention

of Food Adulteration Act.

Mr. T. Sudanthiram, learned Counsel appearing on behalf of the Respondent fairly stated, that on this ground the acquittal of the Respondent

cannot be sustained in view of my earlier pronouncement. However, he strenuously contended, that the operation of sample taking, had been

challenged, to indicate that the mandate of Section 10(7) of the Act had not been followed and the fairness sought to be ensured in sample taking

stood destroyed on facts. He pointed out that the evidence of P.W.1 was challenged specifically that one Babu Rowther cited as a witness in the

complaint did not know anything about the process of sampling. A further suggestion had also been made, that the signatures of the witnesses in

Ex.P1 had not been obtained in the presence of the Respondent. In this background, he pointed out, that in the complaint, averments were lacking

to show, that witnesses had been called as ordained u/s 10(7) of the Act, to be present at the time when P.W.1 sought to obtain sample from the

Respondent. He also brought to my notice that Ex.P1 did not contain the addresses of the witnesses present for seizure. On this ground, he would

urge that the acquittal of the Respondent may have to be sustained.

I have carefully considered the rival contentions of the opposing counsel.

The ground on which the trial Magistrate had acquitted the Respondent cannot be sustained, in view of my earlier decision in C.A. Nos. 226

and 229 of 1986 dated 12-11-1990. However, on the contention of Mr. T. Sudanthiram, this appeal deserves dismissal. A perusal of Ex.P1,

which is Form VI, shows that one Babu and another Kadirvel, who appears to be a maistry, had signed this document. Babu is stated to be a

customer of the Respondent, who was present during the sampling process. To fix the identity of the said Babu, neither his father''s name nor his

address has been given in this earliest document. As rightly contended by Mr. T. Sudanthiram, the body of the complaint also does not show that

witnesses were called to be present during sampling. Of course, in his oral evidence recorded on 16-7-1982 nearly two years after the sampling

operation, P.W.1 had stated that Babu Rowther and his assistant (name not mentioned) were called to be present during sampling. When this

belated version did not got sanctified, by earlier record, the prosecution owed a duty to have examined one of the witnesses, especially when the

whose process of ""sample taxing"" had been challenged.

It is, of course, settled law that it will not be necessary to examine the mahazar witnesses as long as it was evident that the process of sampling

had not either been challenged or the prosecution had placed sufficient evidence to affirm the fairness of the sampling operation.

David Annoussamy, J., in Manikam v. Food Inspector 1988 F.A.J. 60 had observed as hereunder:

But when the whole process of taking of sample is challenged, it should be open for the Court or to the accused to summon the persons, who have

affixed their signatures, for examination. For that purpose, whenever signatures of witnesses have been obtained, it is obvious that the names and

addresses of the persons, who have attested, should also find a place. Otherwise, the whole purpose of Section 10(7) which is to ensure the

fairness of sample taking is destroyed. In fact, when names and addresses are missing, it will not be possible for the Court to test the veracity and

fairness of the operation. Of course, it is only when the operation of sample taking is challenged, and when there are reasons to doubt its fairness

that the absence of name and address would make the operation invalid. Otherwise, it will not.

The view taken by David Annoussamy, J., with which I respectfully agree, will apply to the facts of this prosecution. On this ground, I am not

inclined to disturb the acquittal of the Respondent.

This appeal, therefore, shall stand dismissed.