State vs Syed and P. Ponnaiah

Arunachalam, J.—Both these appeals have been filed by the State represented by learned Public Prosecutor challenging the acquittal of the

respective Respondents, in C.C. Nos. 223 and 224 of 1984 respectively, on the file of Chief Judicial Magistrate, Tirunelveli, for offences under

Sections 7(1) and 16(1)(a)(1) read with 2(1a)(a) and (m) of Prevention of Food Adulteration Act. Since the issue involved in both these cases is

the same, these two appeals are disposed of together by a common judgment. In C.A. No. 226 of 1986, the Food Inspector, Kadayanallur

Municipality bought milk from the Respondent at 6.30 a.m. on 23-12-1983, while the latter was selling milk to the public from his shop situated in

door No. 264, Krishnapuram Main Road, Kadayanallur. The milk bought from the Respondent, after observing all the formalities prescribed under

the provisions of Food Adulteration Act and the Rules, was forwarded to the Public Analyst, Guindy for report. Ex.P.6, report of the Public

Analyst revealed that the sample milk was deficient in solids-not-fat to the extent of at least 44 per cent. The sample also was deficient in fat to the

extent of at least 22 per cent. After receipt of the report Ex.P.6, prosecution was launched, subsequent to the intimation to the Respondent u/s

13(2) of the Act. In Criminal Appeal No. 229 of 1986, the Food Inspector, Kadaiyanallur Municipality bought milk from the Respondent at 6

a.m. on 23-12-1983 from the premises bearing door No. 264 Krishnapuram Main Road, Kadaiyanallur when he was distributing milk to the

members of the public. The sample milk seized was sent to the Public Analyst, Guindy for analysis and report. Ex.P.8 report of the Analyst

revealed that the sample was deficient in solids-not-fat to the extent of at least 35 per cent and was also deficient in fact to the extent of at least 68

per cent. As provided under the provisions of Prevention of Food Adulteration Act, intimation u/s 13(2) of the Act was forwarded to the

Respondent, after initiation of prosecution.

The only ground on which the trial Magistrate had acquitted the respective Respondents, was that there had been violation of the provisions of

Section 11(1)(c)(i) of the Act. The trial Magistrate held, that P.W.1, the Food Inspector, who had launched the prosecutions, had not stated, that

he had sent one of the parts for analysis to the Public Analyst under intimation to the local health authority, and therefore the mandate of Section

11(1)(c)(i) had been violated. Mr. R. Shanmugasundaram, learned Additional Public Prosecutor contended that the verdict of the trial Magistrate

was erroneous since in spirit the provisions of Section 11(1)(c)(i) had been complied with. He based his arguments on the admitted evidence that

the remaining two parts were sent to the local health authority along with Form VII.

Mr. K.S. Rajagopalan, learned Counsel appearing on behalf of the Respondent in each one of these appeals, brought to my notice the judgment

of the Bombay High Court in State of Maharashtra v. Raghunath 1984 Cri. L.J. 198 which had been referred to by the learned Magistrate,

wherein Sharad Manohar, J. of the Bombay High Court has held as hereunder.

It cannot be lightly assumed that the legislature wanted the citizen to be sentenced to stiff penalty in a light-hearted manner. If stiff penalty is the

ultimate result, the manner in which the stiff penalty should be imposed has to be prescribed and once the legislature prescribes such manner the

same has got to be observed strictly by the person who has been entrusted with the duty of implementation of the law by paying attention to each

of the mandatory requirements prescribed by the law.

Having stated so, the learned Judge further observed that he was persuaded to hold that the requirement of giving intimation to the Local Authority

of the fact that the sample had been sent by the Food Inspector to the Public Analyst, must be construed to be mandatory requirement. Once the

requirement was held to be mandatory and it was found that the requirement had not been complied with by the Food Inspector, it must follow that

the prosecution had to fail.

I have carefully considered the contentions of the learned Additional Public Prosecutor as well as Mr. K.S. Rajagopalan. With respect I am

unable to agree with the view expressed by Sharad Manohar, J. of the Bombay High Court.

Section 11(1)(c) consists of two parts. The first part under (i) contemplates sending of one of the parts for analysis to the Public Analyst under

intimation to the local health authority. The second part under (ii) contemplates sending of the remaining two parts to the local health authority for

the purposes of Sub-Section 2 of Section 11 and Sub-Section 2A and 2E of Section 13. The idea behind Section 11(1)(c)(ii) is to facilitate yet

another sample of the seizure being forwarded to the Public Analyst, when the contingency contemplated u/s 11(2) of the Act or u/s 13(2A)or

(2E), arose. Section 11 has to be read along with Rule 17 of the Prevention of Food Adulteration Rules. Rule 17 relates to the manner of

despatching containers of samples. Under Rule 17(a) the sealed container of one part of the sample for analysis and a memorandum in Form VII

shall have to be sent in a scaled packet to the Public Analyst immediately, but not later than the succeeding working day by any suitable means.

Under Rule 17(b) the sealed containers of the remaining two parts of the sample and two copies of the memoranda in Form VII shall have to be

sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means. The

manner in which the procedure contemplated u/s 11 had to be complied with forms part of Rule 17. A combined reading of Section 11 and Rule

17 makes this position obvious. P.W.1 has stated in his evidence that he had forwarded through railway parcel one part of the sample for analysis

to the Public Analyst, while sending the remaining two parts to the local health authority, along with Form VII. He has also deposed about having

forwarded Form VII along with the sample seal to the Public Analyst, separately. Therefore all that P.W.1 had not stated in evidence is about

sending intimation to the local health authority as contemplated in part u/s 11(1)(c)(i) of the Act.

While considering whether the provisions of Section 11(1)(c)(i) of the Act is a mandate, the noncompliance which would be sufficient, to acquit

the Respondents, even if a part of that sub-section had not been complied with, of intimation not having been forwarded to the local health

authority, the object with which the Prevention of Food Adulteration Act was brought into being, cannot be overlooked or minimised. It was

brought into force to check social evils, in larger public interest for ensuring public welfare. This shows the degree of concern exhibited by

Parliament in so far as public health is concerned. I am satisfied that Section 11(1)(c)(i) of the Act cannot be held to be mandatory, in so far as, not

forwarding of an intimation to the local health authority, while the Food Inspector chooses to send one of the parts for analysis to the Public

Analyst. On facts when it is clear that Form VII had been sent to the local health authority, the object behind Section 11(1)(c)(i) of the Act relating

to intimation gets satisfied. If there is a slight infraction of this part of the provision, the Respondent in each one of these appeals will not be entitled

to an acquittal merely on that ground. There can be no prejudice whatsoever to the Respondents, for non-intimation to local health authority u/s

11(1)(c)(i) of the Act does not go to the root of the matter and more so when Form VII had been forwarded to the local health authority. Though

it has been argued that the provision of Section 11(1)(c)(i) of the Act had not been complied with in letter, I am satisfied that the provision had

been complied with in spirit. Therefore the ground on which the Respondent in each one of these appeals had been acquitted, cannot be sustained.

At this stage, Mr. K.S. Rajagopalan, learned Counsel appearing for the Respondent in each one of these appeals contended that though P.W.1

in each one of these prosecutions had stated, that the milk was stirred before a purchase was made, he had not stated so in the complaint and

therefore there was a doubt about the sample purchased being homogenous in character. The evidence of P.W.1 has not been challenged and I am

unable to accept or accede to this contention of the learned Counsel. It may be that in certain cases, where the evidence of P.W.1 is challenged,

the absence of averments in the complaint relating to churning or stirring of milk may have a bearing.

Now that it has been held that the acquittal of the Respondent in each one of these appeal cannot be sustained, the manner of dealing with the

Respondents, has to be scrutinized. The milk sampling was done in 1983 and nearly seven years have elapsed. The acquittal of the Respondent in

each one of these appeals was recorded on 6.6.1985. Therefore I am reluctant to interfere with the order of acquittal. Having made the position of

law clear, I decline to set aside the order of acquittal. Subject to the above observation, these appeals shall stand dismissed.