AI Structured Summary
Not yet generated for this judgment
Judgment
Arunachalam, J.—The State represented by the learned Public Prosecutor has chosen to challenge the acquittal of the Respondent herein
and A.1 before the trial Magistrate, of an offence punishable under Sections 7(1) and 16(1)(a1) read with Section 2(1a)(a) and (m) of the
Prevention of Food Adulteration Act and Rule 44(e) of the Prevention of Food Adulteration Rules, recorded by the Sub Divisional Judicial
Magistrate, Sankari in C.C. No. 198 of 1985. The Respondent was prosecuted in the same calender case along with R. Muthu, arrayed as A.2
against whose acquittal, the State has not chosen to prefer an appeal.
The prosecution case will have to be narrated, for the disposal of this appeal. P.W.1 the Food Inspector, Edapadi Municipality visited the
grocery shop of the Respondent and A.2 situated at Door No. 108, Angalamman Koil Street, Edapadi at or about 10.30 a.m. on 18.12.1984.
P.W.1 found the Respondent transacting business in the grocery shop. P.W.1 revealed his identity to the Respondent and expressed his intention
of obtaining sample of coconut oil for the purpose of analysis. P.W.1 learnt from the Respondent that the second accused was the owner of the
shop. P.W.1 served Form VI on the Respondent and later purchased 750 m.l. of coconut oil from the Respondent after paying the sale
consideration of Rs. 22.50. One of the parts of the sample sent for analysis to the Public Analyst, Guindy, revealed that the sample did not
conform to the standard for coconut oil, in respect of Butyro-refractometer reading, Iodine value, saponification value and Polenske value. The
Analyst also opined that the sample was found to be a mixture of about 10% of coconut oil and 90% groundnut oil. Therefore the sample was
adulterated. Ex.P.4 is the report of the Analyst. After initiating prosecution intimation under, Section 13(2) of the Act was served on the
Respondent and second accused.
The case of the Respondent and A.2 before the trial Court was one of denial. Ex.D.1, the letter addressed to A.2 and returned to P.W.1 was
marked, on behalf of the defence.
The trial Magistrate chose to acquit the Respondent and A.2 on two grounds: 1) The prosecution had not established connection between A.2
and the grocery shop from which sample of coconut oil had been taken. 2) The mandate of Section 13(2) of the Act had been violated for the
complaint filed by P.W.1 before the trial Magistrate on 13.2.1985 was returned and represented only on 19.2.1985, But in between, on
14.2.1985 itself, intimation u/s 13(2) of the Act had been served. Therefore it must be deemed that the intimation had been served before
institution of this prosecution.
Mr. A.S. Chakravarthy, learned Government Advocate appearing on behalf of the Appellant contended, that both the grounds or acquittal
cannot be sustained. As far as the first ground is concerned, the learned Government Advocate contended, that the Respondent had admitted that
he was the owner of the grocery shop and that would put an end to the controversy of the connection of the Respondent with the shop, from which
sample had been seized. On the second ground, he submitted that presentation of complaint before the trial Magistrate would amount to institution
of prosecution and therefore service of intimation on the Respondent and A.2 on 14.2.1985 after presentation of the complaint on 13.2.1985 was
well within the mandate of Section 13(2) of the Act.
Mr. R. Danasekaran, learned Counsel appearing on behalf of the Respondent contended, that between 13.2.1985 and 19.2.1985 no complaint
was available before the trial Magistrate and therefore the Respondent must be deemed to have been prejudiced since he could not have exercised
his right u/s 13(2) of the Act. He also submitted that the complaint was vague in that P.W.1 had chosen to allege that sample was taken from one
person who was available in the shop especially when two names have been given in the complaint as accused. He also pointed out that Ex.P.1
and Ex.P.2, the address of P.W.2 had not been given and P.W.2 himself had not supported the prosecution and had chosen to categorically state
in Court, that his signatures were obtained in Ex.P.1 and P.2 when he was in the house. He also affirmed, that he did not have any knowledge of
the sampling operation. He also pointed out that P.W.1 had admitted in his cross-examination that he had not stated in the complaint regarding the
persons available at the shop during sampling operation. Further he had deposed that he had not stated about the person who had signed in Form
VI. His further admission was, that in Ex.P.2 he had not indicated who the witness was, for the purchase of coconut oil from the seller. On these
admissions, of P.W.1 taken along with the baldness of the complaint, the learned Counsel for the Respondent would submit, that the object of
Section 10(7) of the Act had been violated.
I have carefully considered the rival contentions of the opposing counsel. The first ground of acquittal need not have to detain us for long since
the acquittal of A.2 has not been challenged. The documentary evidence shows, that the Respondent was the person who had sold the coconut oil
to P.W.1 and irrespective of ownership of the grocery shop, the Respondent would be liable, if the prosecution case were to be accepted. On the
second ground, it can be stated at-once, that the verdict of the trial Magistrate cannot be upheld. The meaning that should be given for ''institute''
has been the subject matter of decisions by this Court, atleast in three cases, which have been placed before me. Ratnavel Pandian, J (as he then
was) in Abdul Majeed v. State, Food Inspector 1981 LW (Crl.) 305 and David Annoussamy, J. (as he then was) in Abdul Azeez v. Food
Inspector, Ulundurpet 1987 LW (Crl.) 342, have held that institution of a prosecution under this Act took place the moment the person authorised
to launch the prosecution filed the complaint before the Court. It was also held by both the learned Judges that institution of a prosecution was
different from taking cognizance of the case by Court. In other words, the mere filing of the complaint before the competent Court after complying
with the pre-requisites of Section 20(1) either by the person authorised or by the person referred to in Section 12 would satisfy the meaning of the
expression ''institution of the prosecution''. David Annoussamy, J. further observed that it would be making violence to the text of the statute to say
that only when the Magistrate takes cognizance of the complaint, the prosecution could be said to have been instituted. It was further observed by
the learned Judge that the authority is not informed of the date of the Magistrate taking on file the complaint and therefore construing the date of
institution to be the date on which the Magistrate takes on file the complaint, would put the Local Health Authority in an impossible situation of
being unaware of the institution of the prosecution and still bound to forward a copy of the report to the person concerned immediately after the
institution of the prosecution. A contrary view was taken by Singaravelu J., in R. Veerappan v. State 1984 LW (Cri.) 244. The learned Judge held
as hereunder:
The term ''institution'' was not been defined anywhere in the prevention of Food Adulteration Act or anywhere else. The only analogous provision
is found in Section 190 of the Code of Criminal Procedure, under which the Magistrate takes cognizance of the offence. Thus, the institution of a
case may be one of the three categories mentioned in Section 190 of the Code of Criminal Procedure and the term ''institution'' would mean only
the date on which the Court takes cognizance of the alleged offence.
The view of Singaravelu, J. had been taken note of by David Annoussamy, J. in the case of Abdul Azeezd was distinguished on the basis of the
law laid down by the Supreme Court as well as the meaning that should be given to the word ''instituted'' on the various provisions found in the Act
itself. The view of Singaravelu, J. had not been brought to the notice of Ratnavel Pandian, J. (as he then was). The various provisions of the Act
which have been referred to by Ratnavel Pandian, J. and David Annoussamy, J., which had not been taken note of by Singaravelu, J. would
certainly permit my expressing agreement with the law laid down by Ratnavel Pandian, J and David Annoussamy. J. without referring this matter to
a Division Bench.
The argument of Mr. Danasekaran that there was no complaint available in Court on 14.2.1985, when intimation was served on the Respondent
and therefore it must be deemed, that the Respondent had been prejudiced cannot be acceded to. It is fairly conceded that no steps were taken by
the Respondent to exercise his right u/s 13(2) of the Act to have another portion of the sample forwarded to the Central Food Laboratory for
analysis. Therefore the question of prejudice does not at all arise.
However, the acquittal of the Respondent has to be confirmed in view of the carelessness of the food inspector, P.W.1. The sanctity of the
sampling operation has to be safeguarded as mandated u/s 10(7) of the Act. The documents prepared at the time of sampling must contain the
addresses of the witnesses called during the operation so that in the event of a challenge of the whole process, it would be open to the Court to test
the acceptability or otherwise of the process of sampling. Sufficient challenge had been made in this case about the sampling operation and this
taken along with the carelessness of P.W.1 in having stated in the complaint, that sample was obtained from one of the accused though prosecution
was against two, would certainly justify non-interference in an appeal against acquittal. The further admission of P.W.1 extracted in the earlier part
of this judgment, would show, that his version cannot be accepted without corroboration either by documentary or other oral evidence. The
documents prepared during sampling do not even contain the address of P.W.2 who is stated to have been present during such, operation. P.W.2
himself has not supported the, prosecution and had chosen to depose, that his signatures were taken at his residence. Due to the unsatisfactory oral
and documentary evidence, I do not think that any ground has been made out to interfere with the acquittal of the Respondent recorded by the trial
Magistrate. This appeal shall stand dismissed.