State by Public Prosecutor vs Pachiappan

M.N. Moorthy, J.—This is an appeal filed by the State against the order of acquittal passed by the learned Judicial First Class Magistrate, Thiruvannamalai, in C. C. No. 174 of 1978 acquitting the accused respondent of an offence under S. 7(1) and S. 16(1)(a)(i) read with S. 2 (la) (a) and (m) of the Prevention of Food Adulteration Act.

The case of the prosecution against the respondent is that P.W. 1 , the Food Inspector, on 2nd March, 1978 at Thiruvannamalai, after serving Form VI, "notice on the respondent, bought from him 750 milliliters of cow''s milk for Rs. 1.25 p. Ex. PI is the Form VI notice and Exhibit P2 is the receipt received from the respondent. The milk was divided into three portions and after observing the usual formalities P.W. I sent one bottle to the Analyst and the other two bottles to the Local Health Authority. Exhibit P4 is the Analyst''s report, stating that the sample was adulterated as the milk contained solids-not fat deficient to the extent of atleast 25 per cent. After receipt of Exhibit P4, a notice, dated 19th May, 1978 under S. 13(2) of the Act under Exhibit P6 was served on the respondent on 21st May, 1978. A complaint against the respondent, dated 29th April, 1978 was filed in court on 4th May, 1978. Apart from the evidence of P.W. I, a mahazar witness was examined by the prosecution, but he turned hostile to the prosecution.

When the respondent was questioned under S. 313, Crl. P.C. he denied having sold any milk on the day in question and stated that the case had been foisted on him. No defence witness was examined on his behalf.

The learned Magistrate acquitted the respondent on the ground that R. 18 of the Prevention of Food Adulteration Rules has not been complied with as the prosecution had failed to produce the acknowledgment of the seal having been sent separately by the Food Inspector to the Analyst along with Form VII.

In this appeal, the State challenges the order of the trial Magistrate pointing out that the evidence of P.W. 1, the Food Inspector, that he sent Form VII along with the specimen seal by registered post to the Public Analyst, should have been accepted and that the copy of Form VII sent to the Analyst has been marked as Exhibit P3 . His evidence is that he had sent two other bottles to the Local Health Authority. The Public Analysts'' report, Exhibit P4, itself shows that the seal affixed on the container of the sample tallied with the specimen impression of the seal and Form VII memo has been forwarded by the Food Inspector. Hence the prosecution has proved the fulfillment of the provisions of R. 18 and "the order" of the lower court is not sustainable. I agree with the contention of the learned Public Prosecutor on this aspect of the case, as, nowhere does the rule contemplate the production, by the Food Inspector, of the postal acknowledgement or receipt of the seal separately sent by the Food Inspector along with Form VII.

Even so, the order of acquittal in this case cannot be interfered with, for a different reason. Notice under S. 13(2) of the Act (Ex. Pd in the case) was served on the accused-respondent on 21st May, 1978. The complaint against the respondent was filed on 4th May, 1978. There is clearly a delay of 17 days between the filing of the complaint and the service of notice under S. 13(2) . Our Court has repeatedly held that the Local (Health) Authority should take prompt, vigorous and expedient action to see that the copy of the report is forwarded to the accused as contemplated under S. 13(2) read with R. 9A, as speedily as possible, without any lapse of time. In the instant case, there is an unnecessary and inexcusable delay of 17 days. Hence I hold that the prosecution has not fulfilled the spirit of the provisions of the Act and the Rules. I decline to interfere with the order of acquittal passed by the learned Magistrate on this score. The appeal filed by the State is dismissed.