State by Food Inspector, Tiruchandur by Public Prosecutor vs Arumugha Nainar

Arunachalam,J.

The acquittal of the Respondent, of an offence punishable under Sections 7(1) and 16(1)(a)(i) read with Section 2(ia)(m) of the Prevention of

Food Adulteration Act, recorded by the Sub Divisional Judicial Magistrate, Tuticorin in C.C. No. 203 of 1983 is challenged in this appeal filed by

the State, represented by the learned Public Prosecutor.

P.W.1 the Food Inspector of Tiruchendur Panchayat visited the shop of Respondent situated at No. 53, Mutharamman Koil Street,

Tiruchendur at 4.30 p.m. On 29-4-1983. The Respondent was carrying on trade, in Orange coloured drinks, in bottles, holding 200 ml each. The

trade was being carried on under the name and style of ""A.S. Raja"". P.W.1 served Form VI on the Respondent expressing his intention to

purchase orange colour sold by the Respondent, for the purpose of analysis. After complying with all formalities prescribed under the Prevention of

Food Adulteration Act and Rules, P.W.1 purchased 9 bottles of orange drink after paying Rs. 11.70, vouch-safed by Ex.P.2, the receipt issued

by the Respondent. One of the sample bottles was sent by P.W.1 to the Public Analyst, Guindy for analysis and report. Ex.P.4 the report of the

Public Analyst showed that the sample contained Saccharin in excess of the maximum permitted limit to the extent of 50 p.pm. As per clause

A.01.01 in Appendix B to the Prevention of Food Adulteration Rules, 1955 carbonated water shall not contain saccharin exceeding 100 p.p.m.

Since the sample was not in accordance with the prescription laid, under the Act and Rules, prosecution was initiated against the Respondent and

soon thereafter intimation u/s 13(2) of the Act was served on him.

The defence of the Respondent before the trial Magistrate was that he was not present during the alleged sampling and that he aid not receive

any sale consideration from P.W.1. He specifically took the stand, that when he was returning from Bazar he was taken to the office of the

Panchayat and his signature was obtained in few papers. P.W.2 who succeeded P.W.1, filed the complaint before the trial Magistrate.

The trial Magistrate chose to acquit the Respondent on three grounds: (1) the intimation u/s 13(2) of the Act served on the Respondent did not

indicate that the prosecution had already been initiated against him, and this was contrary to the mandate contemplated u/s 13(2) of the Act; (2)

Though the local health authority had received the report of the Public Analyst on 13-6-1983, the prosecution was initiated only on 5-7-1983 and

no satisfactory explanation had been offered for the delay in initiation of the prosecution. This delay will also enure in favour of the Respondent; (3)

Though P.W.1 had deposed in detail about the manner of sampling, in the complaint all those details had not been given and therefore the evidence

of P.W.1 cannot be accepted at its face value, especially when P.W.3 the mahazar witness had admitted that he did not see the actual sampling.

Mr. A.S. Chakravarthy, learned Government Advocate appearing on behalf of the learned Public Prosecutor contended, that on none of these

grounds, the acquittal of the Respondent can be sustained. He pointed out that in Ex.P.6, the intimation u/s 13(2) of the Act served on the

Respondent, it has been mentioned that if the Respondent was desirous of sending yet another part for further analysis, he could do so within 10

days of the receipt of intimation, by filing a petition before the Sub Divisional Judicial Magistrate, Tuticorin. He further contended that no time limit

has been prescribed under the Act for initiation of prosecutions and the slight delay in filing of the complaint, had been explained and in any event,

no prejudice had been caused to the Respondent, since he did not choose to have another part of the sample analysed by the Central Food

Laboratory. Finally he contended that official acts must be presumed to have been done properly and on facts P.W.1 had detailed the entire

process in his oral evidence, which had not been challenged in cross-examination, by the Respondent.

I have heard Mr. R. Nagarajan, learned Counsel appearing on behalf of the Respondent. He contended that irrespective of the acceptability or

otherwise of the reasoning of the trial Magistrate, the acquittal of the Respondent may still have to be upheld in view of violation of the provisions

of Section 10(7) of the Act. He pointed out that P.W.1 had not called one or more persons to be present when he sought to take action of

obtaining sample from the Respondent, for the purpose of forwarding the same for analysis and report.

I have carefully considered the contentions of Mr. A.S. Chakravarthy as well as Mr. R. Nagarajan. None of the grounds, on which the

Respondent had been acquitted by the trial Magistrate can be sustained. A perusal of Ex.P.6 shows, that the Respondent had certainly been

informed, that within 10 days of the receipt of Ex.P.6 he could exercise his right u/s 13(2) of the Act if he so desired, by applying to the Sub

Divisional Judicial Magistrate, Tuticorin to have yet another sample forwarded for further analysis. This is in strict compliance with the provisions of

Section 13(2) of the Act and obviously the trial Magistrate had not carefully noticed the contents of Ex.P.6.

The Act has not prescribed any time limit for launching prosecutions. But that does not mean that the Food Inspector can unnecessarily delay

initiation of prosecution. The delay will be a question of fact, which may have to be appreciated on the particularity of facts, available in each case.

I am unable to hold that there has been either a long delay or the delay had not been explained. Even if there had been no explanation, as long as

the Respondent had not chosen to exercise his right u/s 13(2) of the Act to send another sample for further analysis, this short delay in the initiation

of prosecution cannot be taken to have prejudiced his case. The acquittal on this ground also cannot be sustained.

On the third ground since the sampling procedure adopted by P.W.1 had not been challenged in cross-examination, I am unable to hold that

lack of details in the complaint, on the manner of sampling, would detract the value of the oral evidence of P.W.1. Therefore the acquittal on this

ground also will have to be reversed.

However, the contention of the learned Counsel for the Respondent that the mandate of Section 10(7) of the Act had been violated, will have

to be certainly upheld. Section 10(7) of the Act reads as hereunder:

Where the Food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4) or Sub-section (6), he shall call

one or more persons to be present at the time when such action is taken and take his or their signatures''.

The legislature has indicated clearly its intention that the provisions of Section 10(7) are mandatory, and can be dispensed with only under

unavoidable circumstances. The law is fairly settled that the Food Inspector shall call some persons to attest the proceedings. Those persons

should be independent and not subject to the influence of the Food Inspector. The signatures of those persons should be obtained. If no such

person is available or if they are unwilling to sign mention thereabout with relevant details should be made in the report. It will not be necessary to

call those who had signed the report as witnesses. However, regardless of all circumstances, the non-presence of one or more independent

witnesses at the relevant time would not vitiate the trial or conviction if the Food Inspector had complied with the obligation cast on him u/s 10(7)

of the Act. While no Court can countenance the attempts to keep off independent witnesses in a bid to defeat the working of the provisions of the

Food Adulteration Act, it cannot also be easily overlooked, that the Food Inspector will have to follow the mandate of Section 10(7) of the Act,

for, this provision is intended to safeguard the rights of the accused.

On facts, the whole process of taking sample has been challenged by the Respondent. The Food Inspector P.W.1 had not stated in his

evidence that he called P.W.3 to be present while sampling was done by him. All that he had stated in his evidence is that P.W.3 has signed in

Form VI. A perusal of the evidence of P.W.3 shows, that he was not present during seizure, but Food Inspector had obtained his signature stating,

that lie had taken soda from the shop of the Respondent. He admits his signature in Exs.P.1 and P.2, but has added that the seized soda was not

shown to him. P.W.3 was working in his tailoring shop and his signatures were obtained only in the tailoring shop and obviously he did not go to

the shop of the Respondent. P.W.3 had not been treated hostile by the prosecution. A combined reading of the evidence of P.Ws.1 and 3 leaves

an impression that the mandate of Section 10(7) of the Act has been violated. Taking of samples as ordained by law is of cardinal importance.

When that sampling gets vitiated as not in accordance with law, the Respondent would be entitled to the benefit flowing out of it. Though P.W.1

would have it that his maistry Durairaj was with him, it is not his case that the maistry was one of those persons Called to be present during

sampling. The maistry himself had not been examined. The whole purpose of Section 10(7) of the Act which is intended to ensure fairness in

sampling, should not be allowed to be defeated due to the negligence of Food Inspectors. I am constrained to hold that on facts the provisions of

Section 10(7) of the Act have been violated. On this ground the acquittal of the Respondent will have to be sustained, though not on the grounds

listed by the trial Magistrate. In this view this appeal shall stand dismissed.