State vs Khaja Mohideen

Arunachalam, J.—The Stale represented by the learned Public Prosecutor has chosen to challenge the acquittal of the Respondent recorded in C.C. No. 341 of 1983 on the file of the Sub-Divisional Judicial Magistrate, Valliyur of offences punishable u/s 7(1) and Section 16(1)(a)(i) read with 2(1a)(a) and (m) of the Prevention of Food Adulteration Act.

The prosecution case will have to be stated in brief for the disposal of this appeal. P.W.1 the Food Inspector attached to the Panagudi Town Panchayat found the Respondent in possession of mixed buffalo and cow milk for sale at or about 7.30 a.m. on 30.8.1983 inside the Panagudi Bus Stand. After expressing his intention to purchase sample for analysis, he purchased 660 ml. of the mixed milk from the Respondent after complying with the formalities prescribed under the Act and the Rules. A portion of the milk purchased was sent for analysis to the Public Analyst, Guindy. Ex.P.7 the report of the Public Analyst disclosed that the sample milk was deficient in solids-not-fat to the extent of atleast 16%. In terms of Clause A.11.01.11 in Appendix B to the prevention of Food Adulteration Rules, mixed milk should contain not less than 8.6% solids-not-fat. The sample contained only 7.1% of solids-not-fat. Therefore the sample was found to be not in accordance with the prescribed standard. After initiating the prosecution, intimation u/s 13(2) of the Act was served on the Respondent. The learned Magistrate chose to acquit the Respondent mainly on the ground that on the same morning P.W.1 had sampled milk from three different persons inside the bus stand with an interval of one hour between each sampling and had also chosen to forward the milk bottles so sampled in one sealed pocket to the Public Analyst for testing and report. The other ground of some importance on which the acquittal was based was non-adherence to the mandatory provision of Section 11 read with Rule 16(c).

Mr. A.S. Chakravarthy, learned Government Advocate contended that the first ground of acquittal cannot be sustained since the learned Magistrate had chosen to rely upon evidence in the other two cases which had not been brought on record in this prosecution. Extraneous material could not have been used to find the Respondent not guilty. He further pointed out that Rule 17 referred to by the learned Magistrate deals with the manner of despatching containers of samples and had nothing to do with the manner of packing and sealing the samples and therefore on that ground also the judgment of the trial Magistrate will have to be set aside. I have heard Mr. S. Shanmughavelayutham, learned Counsel appearing on behalf of the Respondent on both these contentions. Though he fairly stated, that on the first ground the acquittal of the Respondent cannot be sustained, he strenuously argued that on the second ground the judgment of the trial Magistrate will have to be upheld. The learned trial Magistrate has erroneously referred to Rule 17 instead of Rule 16 and such a mistake should not affect the rights of the Respondent.

I have carefully considered the rival contentions of the opposing Counsel. The first contention of the learned Government Advocate will have to be upheld without any hesitation. The trial Magistrate could not have taken notice of evidence in another case though he had tried them as well, unless such evidence had been brought on record in this calender case. Reliance placed on evidence not before Court in this prosecution constitutes illegality. This ground of acquittal therefore cannot be sustained.

However, I entirely agree with the learned Counsel for the Respondent that the acquittal cannot be disturbed in view of the sustainability of the second ground. It would have been better if the learned Magistrate had looked into the relevant rules before ever recording his findings. Anyhow, lack of such approach cannot be allowed to prejudice the case of the Respondent. Section 11 of the Act which is mandatory, states as follows:

Procedure to be followed by food Inspectors--(1) when a food inspector takes a sample of food for analysis, he shall--

(a) give notice in writing then and thereof his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed u/s 14-A;

(b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb-impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed.

Provided that where such person refused to sign or put his thumb-impression the food inspector shall call upon one or more witnesses and take his or their signatures or thumb-impressions, as the case may be, in lieu of the signature or thumb-impression of such person;

This mandatory provision will have to be read with Rule 16 of the Prevention of Food Adulteration Rules dealing with the manner of packing and scaling of the samples. Rule 16 Sub-clause (c) reads as hereunder:

(c) A paper slip of the size that goes round completely from the bottom to top of the container, bearing the signature and code and serial number of the Local (Health) authority, shall be pasted on the wrapper, the signature or the thumb-impression of the person from whom the sample has been taken being affixed in such a manner that the paper lip and the wrapper both carry a party of the signature or thumb-impression.

It is not the case of the prosecution that the Respondent refused to affix his signature or thumb-impression. There is no evidence on record to show that the signature or thumb-impression of the Respondent was taken and affixed in such a manner that the paper slip and the wrapper both carried a part of signature or thumb-impression of the Respondent. This is an essential safeguard not only for the sanctity of the sampling operation but also to assure that the identical sample purchased from the Respondent had reached the public analyst. The non-adherence to the mandate Section 11(1)(b) with Rule 16 of the Rules would certainly ensure in favour of the Respondent. In that view, I am satisfied that interference is not called for in this appeal against acquittal. The appeal shall stand dismissed.