State by Public Prosecutor vs Ashokan

Swamikkannu, J.—The State represented by the learned Public Prosecutor has directed this Criminal Appeal questioning the order of acquittal made in C.C. 57 of 1979, on the file of the learned Sub Divisional Judicial Magistrate, Villupuram, acquitting the accused, of the offence punishable under Ss.7(1), 16(1) (a) (1) and 2 (ia) (a) (m) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act.

The brief facts of the case as disclosed from the oral and documentary evidence can be stated as follows:�P.W.1 Food Inspector attached to Kottakuppam town Panchayat on 14th December, 1978 at about 9-30 a.m. purchased 660 millilitres of cow''s milk from the Respondent herein for Rs. 1.25 as per the cash receipt Ex.P2 after serving Form No. 6 notice on him. Ex.P2 is the receipt passed by the accused, accepting a sum of Rs. 1.25 towards the price of the milk purchased by P.W.1 The food article, namely, milk was intended for sale and for human consumption. P.W.1 divided the milk purchased into three equal parts, added formalin to the same, poured the same into three empty dry bottles, closed them with cork and sealed them with mark No. 131.(sic) The sealed bottles were wrapped with sheets and slips were pasted and thereafter they were sealed. The Local Health Officer signed on the slips as well as on the cover. The signature of the accused was also obtained. When one of the sample bottles was sent to the Chemical Analyst it was found on an analysis of the sample of the milk, that the same was deficient in solid-fat to the extent of at least 28 per cent as per Ex.P3 certificate issued by the Analyst. On receipt of Ex.P3, P.W.1 instituted the prosecution. Ex.P4 notice u/s 13(2) was served on the accused and his signature was obtained therein. M.O.1 is the sample bottle that was produced before the court. P.W.2, Arumugham and P.W.3 Jani have attested Exs.P1 and P2.

P.W.2 Arumugham deposed in his evidence that about 4 or 5 months prior to himself giving evidence before the lower court, he had been asked to go over to the Panchayat Office, that he was asked to put his signature and that he did not witness the actual purchase of the sample milk by P.W.1 from the accused. In view of giving such evidence P.W.2 was treated hostile by the prosecution P.W.3 has also stated that in his presence no amount was given by P.W.1 as price for the milk and that the sample milk was not taken in his presence. When questioned u/s 313, Crl. P.C. the accused had stated that he was not dealing with milk, that he is employed in Pondichery Paper Mills and that he was taking the milk for his own use. In other words, he pleaded not guilty for the charges framed against him. No witness was examined on behalf of the accused. On the question whether the prosecution had proved its case beyond all reasonable doubt against the accused Respondent herein, the lower court had found that the prosecution had not proved that within a specified time as per Section 13(2) of the Act the notice had been served on the accused and further, the prosecution had not proved that the formalities that had to be observed under R.16 of the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as the Rules, were strictly observed by the Food Inspector, P.W.1, during the time of taking sample milk from the accused. On these grounds, the lower court had acquitted the accused u/s 248(1) of the Crl. P.C. Aggrieved by the decision of the lower court acquitting the accused, the State has preferred this Appeal.

The question for consideration in his appeal is whether the prosecution has proved the charge against the accused beyond all reasonable doubt. The accused denied the offence. The court below acquitted the accused on the ground that there was violation of Rr.9-A and 13(2) of the Rules. R.9-A of the Prevention of Food Adulteration Rules, 1955, reads as follows:

9-A. Local (Health) Authority to send report to person concerned:�The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under Sub-R.(3) of R.7, by registered post or by hand, as may be appropriate to the person from whom the sample of the article, was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars has been disclosed u/s 14-A of the Act.

Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-S.(2,), or no action is intended under sub-S.(2E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under. Section 14-A of the Act, within 10 days from the receipt of the report from the Public Analyst.

S.13(2) of the Act reads as follows:�

On receipt of the report of the result of the analysis under sub-S.(1) to the effect that the article of food is adulterated, the Local (Healthy 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 u/s 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or 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.

It is seen that on 19th January, 1979 a complaint was filed against the Respondent herein and on that date the case had been taken on file. It is also relevant to note that a notice u/s 13(2) had been served on the Respondent only on 9th February, 1979. On a perusal of Ex.P4 it is seen that the signature of the Local Health Authority was obtained only on 30th January, 1979. An acknowledgement for the receipt of the notice had been obtained only on 9th February, 1979. As per R. 9-A of the Rules the notice of the institution of the complaint ought to have been served on the Respondent within ten days. In the instant case before us, as already seen, the complaint was instituted in the court on 19th January, 1979, but the notice regarding the same had been served on the Respondent-herein on 9th February, 1979, only, as seen from Ex.P4. No explanation had been offered on behalf of the prosecution relating to the delay.

This Court in Abdul Majeed v. State 1981 L.W. (Crl) 302 by Food Inspector 1981 L.W. (Crl) 302 in Sebastian v. State 1982 MLJ. (Crl) 194 : 1982 L.W. (Crl.) 28 State v. Ramaswamy 1984 MLJ. (Crl) 48 : 1983 L.W. (Crl.) 104, has held that "S.13 (2) of the Act is mandatory and that any breach of that section could vitiate the trial. As in the present case, there is a breach of the mandatory provisions of the Act, this order of acquittal is not liable be interfered with". It is relevant to note that there is no clear evidence adduced on behalf of the prosecution regarding the strict compliance of R.16 of the Rules in the instant case. R.16 of the Prevention of Food Adulteration Rules, 1955 reads as follows:

Manner of packing and sealing the samples: All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely:

(a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit;

(b) The bottle, jar or other-container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive;

(c) A paper slip of the size that goes round completely from the bottom to top of the container of Local (Health) Authority shall be pasted on the wrapper, the signature or the thumb impression of the person from whom the sample has been taken being affixed in such a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression.

Provided that in case, the person from whom the sample has been taken refuses to affix his signature or thumb impression, the signature or thumb impression of the witness shall be taken in the same manner;

(d) The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twice or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender.

P.W.1 has not stated specifically in his evidence as to the manner of packing and sealing the sample. He has not stated in his evidence that the bottles, in which samples were divided and poured, were dry at the time of pouring the sample that was purchased from the Respondent herein. Further, P.W.1 has not stated that the bottles were so closed and sealed so as to prevent any leakage. Further, it is not specifically deposed by P.W.1 that as per the provisions of R 16 of the rules, the sample bottles were fastened with twine or thread and thereafter sealed. In Ramalingam v. The Food Inspector, Nagapattinam 1979 L.W (Crl) 103 it was held as follows:

The provisions of Section 11 of the Food Adulteration Act read with R.16 of the Rules are mandatory and the violation of the provisions of Section 11 and R.16 vitiate the entire trial. These rules have been framed in order to ensure that the samples are not tampered with subsequently. The failure in observing the rules strictly renders the case of the prosecution vulnerable.

The learned Public Prosecutor points out that merely on the ground that P.W.1 has not stated that the bottles were (sic) not dry at the time of filing the samples, it cannot be said that packing was not done properly.Ex.P3 certificate issued by the Analyst shows that when the sample of cow''s milk mark No. 131, was taken for analysis, it was found to be properly fastened and sealed, and the Public Analyst found the seal of the bottle intact and also unbroken. It is further stated in Ex.P3 that the contents of the sample bottles were in fit condition for analysis, and the said contention regarding the failure to comply with R.16 of the Rules, raised on behalf of the Respondent, ought not to have been accepted by the lower court. This contention raised by the learned Public Prosecutor before me cannot be brushed aside as unsustainable. When P.W.1 has stated in his evidence specifically that he had divided the sample into three equal parts, added formalin to the samples, and filled in three empty bottles, according to rules, it cannot be held that he had not followed the rules merely because he had not specifically stated that the bottles were dry at the time of pouring the milk. In this regard, the learned Public Prosecutor refers to a decision in (Mylswami v. State Crl. R.C. No. 294 of 1978, dated 18th December 1979. wherein Paul, J. has observed as follows:

During the course of the arguments, Mr. Kalyanam appearing on behalf of the revision Petitioner vehemently contended that there has been non-compliance with S.ll(b) which requires the Food Inspector to take the signature or thumb impression of the person on the paper slip to be pasted on the rapper as required by R. 16(c). Of course, the Food Inspector has not stated specifically in his evidence that he so obtained the signature of the revision - Petitioner. During the cross -examination of the Food Inspector no suggestion was put to him to the effect that he did not comply with this rule. In fact he was not cross examined on that point at all. In Criminal Appeal No. 29 of 1968 Kassium Kunju Pookunju and Anr. v. K.K. Ramakrishna Pilla Crl. R.C. No. 294 of 1978, dated 18th December 1979. and another the Supreme Court has accepted the principle that official acts must be presumed to have been regularly performed. Therefore, it could be presumed that there has been a proper compliance with R.16(c) read with Section 11 of the Act, for, there was no challenge at all to the effect that that rule was not complied with and it cannot be urged now in revision that merely because the Food Inspector did not speak to his having complied with the rule, the presumption cannot be (sic) invoked and there is no proper compliance with the rule. The decision in Ramalingam and Anr. v. The Food Inspector Nagapattinam Municipality, Nagapattinam 1979 L.W (Crl) 103 cannot be availed of by the revision Petitioner, for there the Public Analyst has not stated that the seal fixed on the outer cover of the samples tallied with the specimen impression of the seal separately sent by the Food Inspector; and it was in those circumstances that Suryamurthy, J. held that the provisions of Section 11 of the Act and R.16 of the Rules were mandatory and the failure to observe the rules strictly renders the case of the prosecution vulnerable."

On a careful consideration of the contention relating to this aspect, I find that the lower court is not correct in holding that the formalities as per the provisions of R.16 of the Prevention of Food Adulteration Rules, 1954 were not observed by P.W.1 during the time of packing the sample from the Respondent herein. This portion of the finding of the trial court is set aside.

In as much as it was found that the mandatory provision of S. 13 (2) of the Act had not been followed in this case, there was breach of the mandatory provision of the Act and as such, the order of acquittal is not liable to be interfered with.

In the result, the criminal appeal is dismissed. I thank Mr. T. Munirathinam Naidu, advocate, appointed by the Legal Aid Board, and Mr. N. Dinakar, Public Prosecutor, for his valuable assistance in this case.