State by Public Prosecutor vs Panchattadham

Suryamurthy, J.—This is an appeal by the State against the judgment of the learned Sub Divisional Judicial Magistrate, Thanjavur in C. C.

No 1159 of 1976 on the file of his court. A2 in the said case is the only respondent in this appeal, though both A1 and A2 were acquitted by the

learned Sub Divisional Judicial Magistrate.

The Food Inspector, Thanjavur, filed a complaint against A1 under S. 7(i) and S. 16(1)(a)(i) read with S. 2(ia) and S. 17(1)(b) of the

Prevention of Food Adulteration Act (to be referred to hereafter as the Act) read with R. 44 (3) of the Prevention of Food Adulteration Rules (to

be referred to hereafter as the Rules), and against A2 under S. 7(i) and S. 16(1)(a)(i) read with S. 2(ia) (a) and (m) of the Act, and R. 44 (e) of

the Rules, on the allegation that on 25th September, 1976 at about 9.50 A.M., A2 who is the salesman of A1, sold at No. 37, Odathurai Street,

Thiruvaiyaru (Shanmugha Vilas Oil Shop), 450 gms. of gingelly oil to the complainant, which was purchased by him by paying Rs. 395 for

purposes of analysis, after observing formalities contemplated under the Act, and that on analysis by the Public Analyst, the sample was found to

consist of a mixture of about 85% of gingelly oil and about 15% of groundnut oil. A1 is the licensee of the firm.

The case of the prosecution has been spoken to by the Food Inspector, who has been examined as P.W. 1. He proves that on 25th September,

1976 at 9.50 A.M. at No. 37, Odathurai Street, Thiruvaiyaru, he visited the oil shop of A1, the wife of A2, which is in the management of A2, and

gave a notice in Form No. 6 (Ex. PI) and purchased 450 grams of oil from A2 for Rs. 395. He has obtained the cash receipt Ex. P2. Ex. P3 is the

bill issued to A2. Thereafter, P.W. 1 divided the samples into three equal parts and poured the same in three clean dry bottles and duly packed the

bottles, sealed them and labeled them as No. 403. He gave one of the bottles to A2 and obtained his signature on the wrapper of the bottles. He

sent one of the bottles to the Public Analyst along with Form No. VII (Ex. P4). The Public Analyst reported after analysis that the sample sent to

him consisted of a mixture of about 85% of gingelly oil and about 15% of groundnut oil. Ex. P5 is the report of the Public Analyst. These facts

have been spoken to by P.W. 1 and admitted by A2 when examined ""under S. 313, Crl. P. C, except the evidence of P.W.I that he did not sign in

the bottles.

The learned Magistrate has acquitted both the accused. The acquittal of A1 is not challenged by the (State. The only question that now remains

to be considered is, whether the acquittal of A2 is correct ?

The learned Magistrate was of the opinion that the prosecution has not proved, despite the evidence of P.W.I, which has been admitted by A2

that what was sold to P.W.I by A2 was 450 grams of oil purporting to be gingelly oil, and that as P.W. 1 did not say that the oil purchased by him

was weighed, and as the weight of the gingelly oil is likely to be different from the weight of the groundnut oil, the has failed to establish by the

evidence of P.W, 1, that what was purchased was 450 grams of gingelly oil. This reasoning of the learned Magistrate is thoroughly fallacious and

cannot be accepted. The Public Analyst himself has not stated that the sample sent to him was not sufficient for analysis. A2, who examined himself

as D.W.I, has not stated that he did not sell 450 grams of oil. D.Ws. 2 and 3 have been examined to say that the various oils have different

weights. In the face of the admission of A2 when examined under S. 313, Crl. P.C., with reference to the evidence of P.W.I that the latter

purchased 450 grams of oil from him the learned Magistrate was not justified in spelling out a case for the accused which he himself has font put

forward in his statement under S. 313, Crl. P.C. If this were all, this appeal will have to be allowed, and A2 will have to be convicted.

However, we find that P.W. 1 has not observed the provisions of S. 13(2) of the Act which lays down that-

(2), On receipt of the report of the analysis under Sub-s.(l) to the effect that the article of food is adulterated, the Local (Health) 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 under S. 14A, 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 can

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.

In the instant case, the original of the notice, which has been marked as Ex. P7, has been, issued not ""after the institution of prosecution against the

person from whom the sample of the article of food was taken"", but before the institution of the prosecution. The complaint in this case was filed on

10th November, 1976. But, the notice under S. 13(2) of the Act along with a copy of the report of the result of the analysis was issued on 7th

November, 1976. This is a violation of the mandatory provisions of S. 13(2) of the Act.

Moreover, the notice has not been issued by the local authority contemplated in S. 13(2) of the Act S. 2(viii) of the Act defines ""local authority

in the case of-

(1) a local area which is a municipality, the municipal board or municipal corporation; (b) a cantonment, the cantonment authority; (c) a notified

area, the notified area committee; (?) any other local area, such authority as may be prescribed by the Central Government or the State

Government under this Act.

The offence in the instant case is alleged to have been committed within the limits of Thiruvaiyaru Town Panchayat. There is no evidence as to who

is the local authority prescribed by the Central Government or the State Government under the Act for Thiruvaiyaru Town Panchayat. P.W. 1

himself has not claimed to be such a local authority. He had, therefore, no right to send a copy of the report of the result of the analysis on behalf of

the local authority. Therefore, the prosecution is not maintainable. In the result this appeal is dismissed.