State vs Panchanadham

Suryamurthy, J.—This is an appeal by the State against the judgment of the learned Sub-Divisional Judicial Magistrate Thanjavur in C.C.

No. 1159 of 1976 on the file of his court. A-2 in the said case is the only respondent in this appeal, though both A-1 and A-2 were acquitted by

the learned Sub-Divisional Judicial Magistrate.

The Food Inspector, Thanjavur, filed a complaint against A-1 under S. 7(i) and S. 16(1)(a)(i) read with S. 2(ia) and S. 17(1)(b) of the

prevention of Food Adulteration Act (to be referred to hereafter as the Act) read with R. 44(i) of the prevention of Food Adulteration Rules (to be

referred to hereafter as the Rules), and against A-2 under S. 7(i) and S. 16(1)(a)(i) read with S. 2(ia)(a) and (m) of the Act, and R. 44(e) of the

Rules, on the allegation that on 25-9-1976, at about 9-50 a.m., A-20 who is the salesman of A-1, sold at No. 37. Odathurai Street, Thiruvaiyaru,

(Shanmugha Vilas oil shop), 450 gms of gingelly oil to the complainant, which was purchased by him by paying Rs. 3.95 for Purposes of analysis,

after observing the formalities contemplated under the Act, and that on analysis by the Public Analyst, the sample was found to consist of a mixture

of about 85% of gingelly oil and about 15% of groundnut oil. A-1 is the licensee of the firm.

The case of the prosecution has been spoken to by the Food Inspector, who has been examined as P.W. 1, he proves that on 25-9-1976, at 9-

50 a.m. at No. 37, odathurai Street, Thiruvaiyaru, he visited the oil shop of A-1 the wife oil A-2, which is in the management of and gave a notice

in Form No. 6 (Ex. P-1) and purchased 450 grams of oil from A-2 for Rs. 3.95. He has obtained the cash receipt Ex. P-2. Ex. P-3 is the bill

issued to A-2. Thereafter, P.W. 1 divided the samples into three equal parts and poured the same in three clean dry bottles and duly packed the

bottles, sealed them and labelled them as No. 403. He gave one of the bottles to A-2 and obtained his signature on the wrapper of the bottles. He

sent one of the bottles to the Public Analyst along with Form No. VII (Ex. P-4), public Analyst reported after analysis that the sample sent to him

consisted of a mixture of about 85% of gingelly oil and about 15% of groundnut oil. Ex. P-5 is the report of the Public Analyst. These facts have

been spoken to by P.W. 1 and admitted by A-2 when examined under S. 313, Cr.P.C., except the evidence of P.W. that he did not sign on the

bottles.

The learned Magistrate has acquitted both the accused. The acquittal of A-1 is not challenged by the State.

The only question that now remains to be considered is, whether the acquittal of A-2 is correct ?

The learned Magistrate was of the opinion that the prosecution has not proved, despite the evidence of P.W. 1, which has been admitted by A-

2 that what was sold to P.W. 1 by A-2 was 450 grams of oil purporting, to be gingelly oil, and that as P.W. 1 did not say that the oil purchased by

him was weighted, and as the weight of the gingelly oil is likely to be different from the weight of the groundnut oil the prosecution has failed to

establish by the evidence of P.W. 1 that what was purchased was 450 grams of gingelly oil. This reasoning of the learned Magistrate is thoroughly

fallacious and cannot be accepted. The Public Analyst himself has not stated that the sample sent to him was not sufficient for analysis. A-2, who

examined himself as D.W. 1, has not stated that he did not sell 450 grams of oil. D.Ws. 2 and 3 have been examined to say that the various oils

have different weights. In the face of the admission of A-2 when examined under S. 313, Cr.P.C., with reference to the evidence of P.W. 1 that

the latter purchased 450 grams of oil from him, the learned Magistrate was not justified in spelling out a case for the accused which himself has not

put forward in his statement under S. 313 Cr.P.C. If this were all, this appeal will have to be allowed, and A-2 will have to be convicted.

However, we find that P.W. 1 has not observed the provisions of S. 13(2) of the Act which lays down that

(2) On receipt of the report of the analysis under sub-section (1) to the effect is that the article of food is adulterated, the Local (Health) Authority

shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose

name, address and other particulars have been disclosed under S. 14A, forward in such manner as may be prescribed, a copy of the report of the

result of the analysis to such persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make

an, application to the court, within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food

kept by the Local (Health) Authority analysed by the Central Food Laboratory"".

In the instant case, the original of the notice, which has been marked as Ex. P-7, has been issued not ""after the institution of prosecution against the

person from whom the sample of the article of food was taken"" but before the institution of the prosecution. The complaint in this case was filed on

10-11-1976. But the notice under S. 13(2) of the Act along with a Copy of the report of the result of the analysis was issued on 7-11-76. This is a

violation of the mandatory provisions of S. 13(2) of the Act.

Moreover, the notice has not been issued by the local authority contemplated in S. 13(2) of the Act. S. 2(viii) of the Act defines ""local authority

in the case of ""(1) a local area which is - (a) a municipality, the municipal board or municipal corporation; (b) a cantonment, the cantonment

authority (c) a notified area, the notified area committee; (2) any other local area, such authority as may be prescribed by the Central Government

or the State Government under this Act"". The offence in the instant case is alleged to have been committed within the limits of Thiruvaiyaru Town

Panchayat. There is no evidence as to who is the local authority prescribed by the Central Government or the State Government under the Act for

the Thiruvaiyaru Town Panchayat. P.W. 1 himself has not claimed to be such a local authority. He had, therefore, no right to send a copy of the

report of the result of the analysis on behalf of the local authority. Therefore, the prosecution is not maintainable.

In the result, this appeal is dismissed.

Appeal dismissed.