State vs Rengasamy Naidu

This is an appeal by State against the acquittal of the respondent by the learned Chief Judicial Magistrate of Madurai.

A complaint was laid against the respondent in C.C. No. 3 of 1977 on the file of the Chief Judicial Magistrate, Madurai by the Food Inspector

on the allegation that the accused Rengaswami Naidu, who is the respondent herein, had in his possession cow''s milk for the purpose of sale,

offered it for sale and also sold the same in front of door No. 5. Thirupparankundram Road, Madurai at 4.30 p.m. on 11-9-1976 to Thiru S.

Muthuswami, Food Inspector, Madurai Corporation, Madurai, that the cow''s milk on analysis by the public Analyst for Madurai Corporation was

found to contain 4.5% of solids-not-fat as against 8.5% of solids-not-fat prescribed under the prevention of Food Adulteration Rules and hence

deficient in solids-not-fat to the extent of at least 47% and was therefore adulterated and that thereby the accused had committed an offence under

Sections 7(ia)(a) and (m), 7(i), 16(1-A) and 16(1)(a)(i) of the Prevention of Food Adulteration Act (Act 37 of 1954) (hereinafter referred to as

the Act) read with clause A. 11.01.11 in Appendix B to R. 5 of the Prevention of Food Adulteration Rules 1955 (hereinafter referred to as the

Rules).

The case of the prosecution has been spoken to by P.W. 1 the Food Inspector, on 19-11-1976 at 4-30 p.m. when P.W. 1 and his maistry

were proceeding on Thirupparankundram road for the purpose of taking samples of food, P.W. 1 saw the accused in front of door No. 5 of that

road, carrying an aluminium vessel containing 4 litres of milk. On interrogation he said that he was taking the milk for supply to the residents of

Kakka Tope. P.W. 1 purchased from him in the presence of one Arunachalam 660 ml of milk for Re. 1 and obtained the receipt Ex. P. 1 from him

and served a notice in form VI. Ex. P. 2 is a copy of the notice served on the accused.

Thereafter, P.W. 1 divided the milk into three equal parts and poured each part into three separate bottles which were empty, dry and clean and

added 18 drops of formalin to each of the bottles, corked them, tied a twine to them and affixed label No. 19876 on each of them after obtaining

the signature of the accused therein. Thereafter he again wrapped each of the bottles with a thick paper and tied thein each with strings and

obtained the signature of the accused on the three separate labels and affixed on the labels and outer cover to each of the bottles. He then

recorded the statement of the accused which has been exhibited as Ex. P. 3. The accused signed in Ex. P. 3. He prepared the mahazar Ex. P. 4 in

which also the accused signed.

The accused then went to Kakka Tope accompanied by P.W. 1 and sold the remaining milk to one Shenbagam. Shenbagam who purchased

500 ml of the same milk gave the statement Ex. P. 5 which was attested by P.W. 1. Then P.W. 1 sent the report Ex. P. 6 to the office. He sent

one bottle to the Public Analyst and sent the sample seal separately by post on the next day. The other two bottles were handed over to the Health

Officer. On 27-11-1976. Ex. P. 8 was received from the Public Analyst reporting that the bottle sent to him for examination was broken and

therefore the other bottle was sent by the Health Officer with the original of Ex. P. 9.

Subsequently, Ex. P. 10 was received from the Public Analyst reporting that on analysis the fat content was found to be 5.2% and solids-not-fat

4.5% and that clause A. 11.01.11 in Appendix B to the prevention of Food Adulteration Rules 1955, required that cow''s milk shall contain not

less than 8.5% solids-not-fat. Therefore, the Public Analyst was of the opinion that the sample is deficient in solids-not-fat to the extent of at least

47%. Hence it follows that the milk sold by the accused was adulterated.

The complaint was laid on 28-12-1976. Thefeafter, on 7-1-1977-the Health Officer sent a notice, under S. 13(2) of the Act a copy of which

has been marked as Ex. P. 11 to the accused regarding the result of the analysis by the Public Analyst and the accused was informed that he may

make an application to the Chief Judicial Magistrate''s Court within ten days, from the date of receipt of the analyst report if he wanted to get the

food sample with the Health Officer, Madurai Corporation analysed by the central Food Laboratory.

These facts have been spoken to by P.W. 1. No fact has been elicited from him in the course of the cross examination to discredit his evidence.

When examined under S. 313 Crl.P.C. the accused has merely denied the entire offence and has not specifically stated that he did not sell the milk

or did not issue the receipt or did not give a statement or at least a mahazar. He has not given any intelligible explanation and has not endeavoured

to explain away any of the circumstances established by the evidence of P.W. 1 against him and the documentary evidence filed by the

prosecution.

The learned Chief Judicial Magistrate has strained himself to disbelieve the case of the prosecution and to acquit the accused. The learned

Magistrate has observed as follows -

there is no evidence except that of the Food inspector himself to show that he purchased milk on 19-11-1976, from the accused. One

Arunachalam is said to have been present at that time. He has not been examined as a witness by the prosecution. The remaining milk is said to

have been sold to one Shenbagam. Shenbagam has not been examined as a witness.

Again he has observed -

It was suggested to the Food inspector in the course of his cross examination that the milk was not purchased from the accused, but from a

woman and that when the accused intervened to mediate his signatures were taken on some records. This suggestion has been denied by the Food

inspector"".

The learned Magistrate who has referred to the suggestion made to the Food inspector in the course of his cross-examination has not stated

whether he attaches any weight to the suggestion, He was of the opinion that it is unsafe to convict the accused on the uncorroborated testimony of

the Food Inspector. He, therefore, acquitted the accused.

The reasons given by the learned Magistrate for acquitting the accused cannot bear a moment''s scrutiny. Arunachalam could not be examined

as a witness because he turned hostile to the prosecution as may be seen from the endorsement made on the complaint itself. The other witnesses

were not examined because the prosecution thought that their evidence was unnecessary. The sale of the milk to a woman called Shenbagam is not

the subject-matter of the prosecution and therefore there was HQ purpose in examining her as a witness. The evidence of the Food Inspector is

corroborated by the statement given by the accused which has been exhibited as Ex. P. 3. The fact that the accused sold the milk to P.W. 1 is

proved by the fact that he had issued the receipt Ex. P. 1. The accused has also signed in Ex. P. 2 in acknowledgment of having been served with

a notice in form VI. He has signed in the labels attached to the sample bottles as well as in the mahazar prepared by the Food Inspector, Ex. P. 5.

When examined under S. 313 Cr.P.C. he has merely denied the entire offence and has not ventured to state that the signatures on Exs. P. 1 to P.

4, purporting to be his signatures are not his signatures but rank forgeries. When examined generally he has not stated that he did not sell the milk

and did not issue any receipt and did not receive a notice in form IV and did not sign in the mahazar or in the labels attached to the bottles of milk

containing the sample. By way of abundant caution, I have compared the signatures in Exs. P. 1 to P. 4 purporting to be the signatures of the

accused with the signatures in the statement of the accused under S. 313 Cr.P.C. and I have no hesitation in coming to the conclusion that the

signatures in Exs. P. 1 to P. 4 purporting to be the signatures of the accused are in fact the signatures of the accused. Thus, the evidence of P.W. 1

the Food inspector, is corroborated in every particular by Exs. P. 1 to P. 4.

The learned Magistrate erred in thinking that the uncorroborated testimony of a Food inspector cannot be accepted and acted upon. In Babu

Lal Hargovindas Vs. The State of Gujarat, the Supreme Court has laid down that (at p. 1078 of Cri LJ) :-

It is not a rule of law that the evidence of the Food inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar

to the one as in the case of wills where the law makes it imperative to examine an attesting witness under S. 68 of the Evidence Act to prove the

execution of the will. The evidence of the Food inspector alone if believed can be relied on for proving that the samples were taken as required by

law.

In Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, the Supreme Court has again held that -

The obligation which S. 10(7) casts on the Food inspector is to ''call'' one or more persons to be present when he takes action. 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. He could not certainly compel their presence in such circumstances, the prosecution was relieved of its obligation to cite independent

witnesses. In Babu Lal Hargovindas Vs. The State of Gujarat, it was held by this court after noticing that Section 10(7) was amended in 1964, that

non-compliance with it would not vitiate the trial and since the Food inspector was not in the position of an accomplice his evidence alone, if

believed, can sustain the conviction. The court observed that this ought not to be understood as minimising the need to comply with the salutory

provision in S. 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food inspector.

As stated earlier the Food inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the

presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no court can

countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws.

In the instant case, Arunachalam had to be kept out of the witness box, because he had been won over by the accused and therefore he could not

be examined to corroborate the evidence of P.W. 1.

In Public Prosecutor v. Subban Chettiar, reported in 1970 MLJ (Cri) 281. K. N. Mudaliyar J. has oberved as follows -

Section 134 of the Evidence Act is extracted here below. ''No particular number of witnesses, shall in any case be required for the proof of any

fact. In terms of S. 10(1)(a) and sub-section (7) of Act XXXVII of 1954 (Prevention of Food Adulteration Act), the Food Inspector (P.W. 1)

shall call one or more persons to be present at the time when such action is taken and take his or their signature. This is precisely what P.W. 1 has

done when he got the signature of P.W. 2. So far as the failure on the part of P.W. 1 to record the address of P.W. 2 is concerned, it has really no

material bearing on the appreciation of the evidence of P.W. 1. P.W. 2 admits that he has a soda shop at Meenakshi Nilayam, when he admits he

is a neighbour running a soda shop, here is P.W. 2 with an address of his own as proved by the evidence of P.W. 2 himself. The learned

Magistrate erred in permitting the absence of the address of P.W. 2 being recorded to influence his appreciation of the evidence of P.W. 1. The

learned Sub-Divisional Magistrate ought to have seen that no motive is suggested against P.W. 1 by the accused and in the absence of any motive

or enmity alleged against P.W. 1, the facts proved by P.W. 1 are acceptable. S. 134 of the Evidence Act makes it clear that any fact could be

proved even by a single witness. There is a recent trend in cases of this type and similar cases that the attesting witnesses always turn hostile and by

reason of the attesting witnesses turning hostile there is a tendency on the part of the courts below to disbelieve the evidence of P.W. 1 or the

Food Inspector. This trend is really deplorable and the courts below would do well to keep S. 134 of the Evidence Act in view and then

appreciate the evidence of the Food inspector by that standard laid in S. 134 of the Evidence Act. I believe the evidence of P.W. 1 regarding the

facts spoken to by him about his purchase of ghee and his giving a sum of Rs. 5/- for the purchase of the ghee and also his obtaining the

acknowledgment from the accused and his sending the sample to the Public Analyst"".

With great respect, I follow the ratio of the decision referred to above. No fact has been elicited from P.W. 1 in the course of his cross

examination to discredit his evidence. The version of the accused suggested to P.W. 1 in the course of his cross examination but not stated by the

accused himself when examined under S. 313, Crl.P.C. namely that the Food inspector P.W. 1 purchased milk from a woman and when the

accused intervened his signatures were taken, is on the face of it, false. The accused had no business to intervene and mediate between the Food

inspector and the person who sold the milk to him for taking sample. The accused himself has not ventured to state that he intervened or mediated

between P.W. 1 and the alleged vendor of the milk. Therefore the aforesaid suggestion made to P.W. 1 in the course of his cross examination is

undoubtedly a fantastic suggestion which cannot be taken into consideration in assessing the evidence adduced by the prosecution.

As observed already, the report of the Public Analyst proves that the milk was found adulterated. The bottle containing the sample taken from the

accused by the Food inspector was sent to the Public Analyst and was subsequently damaged. Therefore, the other bottle which had been handed

over to the Local Health Authority was sent to the Public Analyst. This fact is relied on by the learned Counsel for the respondent in an endeavour

to discredit the case of the prosecution, it is not the case of the accused that the second bottle of sample sent to the Public Analyst was not the

bottle containing the sample milk purchased from him by P.W. 1, S. 11(2) of the Act lays down that ''where the part of the sample sent to the

Public Analyst under sub-clause (i) of Clause (c) of sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to

it by the Public Analyst or the Food inspector despatch one of the parts of the sample sent to it under sub-cl, (ii) of the said Clause (c) to the

public Analyst for analysis''. By reason of this provision incorporated in S. 11(2) of the Act, the Food Inspector was entitled to send for analysis

another bottle containing the sample of the milk purchased from the accused, which he had entrusted to the Local Health Authority. Nothing turns

on the fact that the first bottle was broken and another bottle containing the sample in question was subsequently sent to the Public Analyst and

was found to be adulterated. Therefore, I find that the accused is guilty of an offence punishable under Ss. 2(i)(a) and (m), 7(i), 18(1-A) and 16(1)

(a)(i) of the Prevention of Food Adulteration Act, read with clause A. 11.01.11 in Appendix B to R. 5 of the Prevention of Food Adulteration

Rules 1955, and convict him thereunder.

The case is adjourned to 22-4-1981, for the appearance of the accused to be heard on the question of sentence.

Despite the case being adjourned twice for the appearance of the accused and to hear the accused on the question of sentence, the accused

has not turned up. I have heard his learned counsel.

Section 16(1)(a)(i) of the Act lays down that -

(1) Subject to the provisions of sub-section (1-A) if any person -

(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of

food -

(i) which is adulterated within the meaning of sub-clause (m) of Clause (ia) of S. 2 or misbranded within the meaning of Clause (ix) of that section

or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority :

...... ....... ....... .......

he shall, in addition to the penalty to which he may be liable under the provisions of S. 6 be punishable with imprisonment for a term which shall not

be less than six months but which may extend to three years and with fine which shall not be less than one thousand rupees.

Therefore the accused is convicted under Sections 2(ia)(a) and (m), 7(i), 16(1-A) and 16(1)(a)(o) of the prevention of Food Adulteration Act

read with clause A. 11.01.11 in Appendix B to R. 5 of the Prevention of Food Adulteration Rules 1955, and sentenced to rigorous imprisonment

for six months and a fine of Rs. 1000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of one month. The

appeal is allowed.

Appeal allowed.