State by Public Prosecutor vs Ramamoorthy

Swamikkannu, J.—The State represented by the learned Public Prosecutor has directed this criminal appeal questioning the order of

acquittal and made in C.C. No. 146 of 1979 on the file of the court of the learned Special Judicial First Class Magistrate, Ulundurpet, acquitting

the accused-Respondent herein for the offence punishable under Ss.2(1-a)(a)(m), 7(1) and 16(1)(a)(1) 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 Villupuram Municipality on 11th May, 1979 at about 7:30am. in No. 3, Masilamanipettai Road, Villupuram,

purchased 660 millilitres of cow''s milk kept for being sold to the public in the presence of two witnesses, on payment of Re. 1 from the accused-

Respondent hereinafter serving Form No. VI notice to the Respondent herein. It was divided into three equal parts and filled in three dried and

clean bottles and marked as No 687 series; After adding 18 drops of formalin in each bottle, they were sealed in accordance with the Rules.

Ex.P2 is the cash receipt obtained by P.W.1 from the accused-Respondent for the sale of the milk. The Forms that were already given to him by

the local authorities were wrapped on each bottle and the signature of the accused-Respondent was obtained on each such wrapper. P.W.1 Food

Inspector kept Form No. VII along with one of the sample bottles, and one such bottle was sent to the chemical analyst. The other two bottles

were given to the local health authorities. The public analyst has stated in his certificate, dated 4th June, 1979 that the sample was analysed on 18th

May, 1979 and that he is of the opinion that the sample is deficient in fat and solid not fat to the extent of 8.5 per cent and 29.4 per cent

respectively. Ex.P4 is the said report of the public analyst. On the basis of the said report, the complaint was filed in the Court of learned Judicial

First Class Magistrate, Villupuram. Under S. 13(2) of the Act, notice had been given to the accused-Respondent herein on 2nd July, 1979. Ex.P5

is the copy of the said notice served on the accused-Respondent under the provisions of Section 13(2) of the Act.

When questioned u/s 313 , Cr.P.C., the accused-Respondent herein stated that he has not committed any offence. As the lower court has

considered that an offence had been committed by the accused-Respondent herein, it had framed the charge under Ss.2(1-a)(a)(m), 7(1) and

16(1)(a)(1) of the Act and questioned the accused-Respondent herein, and the Respondent herein pleaded not guilty, When questioned u/s

246(4), Cr.P.C., the accused-Respondent herein wanted to recall P.W.1 and cross examine him. After the cross examination by the accused-

Respondent, no witness was examined on behalf of the complainant-Appellant herein. Though the Respondent herein had stated that he had

witnesses to examine on his side, no witness was examined by him on his behalf. On the question whether the prosecution has proved its case

beyond all reasonable doubt, the lower Court had held that the formalities that had to be followed under R.16 of the Prevention of Food

Adulteration Rules, 1955, as well as the procedure to be followed by P.W.1 Food Inspector u/s 11(1)(a) of the Prevention of Food Adulteration

Act, 1954, were not followed by P.W.1 and as such the prosecution had not established its case against the Respondent herein, and acquitted him

u/s 248(1), Cr.P.C.

Section 11(1)(a) of the Prevention of Food Adulteration Act, 1954 reads as follows:

Procedure to be followed by Food Inspectors �(1) When a Food Inspector takes a sample of food for analysis, he shall�

(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person,

if any. whose name, address and other particulars have been disclosed u/s 14.

R.16 of the Prevention of Food Adulteration Rules, 1955, reads as follows:

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

namely......

It is relevant in this connection to note that in the instant case Form No. VI (R.12) notice, viz., Ex. P1 had been served on the accused-

Respondent and the signature of the Respondent herein was also obtained on it in the presence of two witnesses, namely, V. Madurai, son of

Vellai, and A. Abdul Aziz. No. 687 was filed into court, when P.W.1 Food Inspector examined himself as a witness. It is also relevant to note that

R.12 of the Prevention of Food Adulteration Rules, 1955 is framed u/s 11(a) of the Prevention of Food Adulteration Act, 1954. R.12 of the

Prevention of Food Adulteration Rules, 1955 reads as follows:

Notice of intention to take sample for analysis�When a Food Inspector takes a sample of an article for the purpose of analysis, he shall give

notice of his intention to do so in writing in Form VI, then and there, to the person from whom he takes the samples and simultaneously, by

appropriate means, also to the persons if any, whose name, address and other particulars have been disclosed u/s 14A of the Act.

Ex.P1 is Form No. VI, under R.12 of the Prevention of Food Adulteration Rules, 1955. When P.W.1 had served the copy of Ex.P1, and

obtained the signature of the Respondent herein in Ex.P1, it is to be held that P.W.1 had complied with the mandatory provision of Section 11(1)

(a) of the Act while taking the sample from the Respondent. Under the circumstances, the lower court is not correct in observing that R.11 (1) (a)

of the Act had not been followed by P.W.1 the Food Inspector,

Even with respect to the finding by the lower court that the provisions of R. 16 of the Prevention of Food Adulteration Rules, 1955, had not

been followed by P.W.1., we have to hold that the said finding is not correct in view of the comprehensive evidence given by P.W.1 who

specifically stated that he had followed the formalities regarding the taking of sample when he obtained the sample from the accused-Respondent.

We are fortified in this view, in that the contents of Ex.P4 certificate given by the public analyst on 4th June, 1979 shows that the sample was

received by him on 14th May, 1979 from the Food Inspector, Villupuram Municipality, and a sample of cow''s milk marked No. 687 for analysis

was found properly sealed and fastened and that he also found the seal in tact and unbroken. It is also stated in Ex.P4 that the seal fixed on the

container and the outer cover of the sample tallied with the specimen impressions of the seal separately sent by the Food Inspector and the sample

was in a condition fit for analysis. The report of the public analyst is by itself substantive evidence by reason of Section 13(5) of the Act which

states that any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-S.(3) ... may be used as

evidence of the facts stated therein in any proceeding under this Act. In his report the public analyst has clearly stated the sample for analysis was

received properly sealed and fastened and that he found the seal in tact and unbroken and that the seal fixed on the container of the sample tallied

with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis, as already seen.

Therefore, even if the Food Inspector had not spoken to these facts, the aforesaid facts stated in the report of the public analyst are, by

themselves, evidence and therefore there has been a proper compliance with R.16. The very fact that Ex.P4 indicated that the sample was found to

be in a condition fit for analysis disclosed that the sample had been properly fastened and sealed and sent to the Food Analysis Laboratory who

received the same in good condition, and the public analyst had issued the certificate on 4th June, 1979 as per Ex.P4. The evidence of P.W.1

Food Inspector together with Ex.P4 report of the public analyst clearly establishes that all the requirements of R.16 of the Prevention of Food

Adulteration Rules, 1955 had been satisfied. Therefore, under the circumstances, the findings of the lower court that the formalities regarding

packing of the sample as well as packing of the same while sending to the public analyst are set aside. In other words, the observation of the trial

court that the provisions of R.16 of the Prevention of Food Adulteration Rules, 1955 and the provisions of S. 11(1)(a) of the Prevention of Food

Adulteration Act, 1954 were not followed by P.W.1 Food Inspector is not correct, and the finding to that effect by the lower court is hereby set

aside.

It is relevant in this connection to note that in the instant case before us R.9-A of the Prevention of Food Adulteration Rules, 1955 and the

provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954 have not been followed by P.W.1 Food Inspector.

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-rule (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 have 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-

section (2), or no action is intended under sub S. (2-E) 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 u/s 14-A

of the Act, within 10 days from the receipt of the report from the Public Analyst.

Section 13(2) of the Prevention of Food Adulteration Act, 1954 reads as follows:

Report of Public Analyst : (1) The Public Analyst shall deliver in such form as may be prescribed, a report to the Local (Health) Authority of

the result of the analysis of any article of Food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under Sub-section (1) 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 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.

From the records it is seen that the complaint in the instant case had been filed before the Court of the Judicial First Class Magistrate, Villupuram,

on 28th June, 1979; but the notice was served on the accused-Respondent herein only on 2nd July, 1979, as is seen from Ex.P15. As per R.9-A

of the Prevention of Food Adulteration Rules, 1955, Ex.P5 ought to have been served on the Respondent herein immediately after the institution of

the prosecution. But there is a delay of four days in serving this notice u/s 13(2) of the Prevention of Food Adulteration Act, 1954. This delay is

not explained by P.W.1 Food Inspector in his evidence. So, there is violation of the provision of Section 13 (2) of the Prevention of Food

Adulteration Act, 1954, read with R.9-A of the Prevention of Food Adulteration Rules, 1955. On this ground, the prosecution has necessarily to

fail.

This Court in Abdul Majeed v. State by Food Inspector. (1981) L.W. (Crl.)302, Sebastian v. State (1982) M.L.J. (Crl.) 194 : 1982 L.W.

Crl. 28 and State v. Ramaswamy (1984) M.L.J. (Crl.)49 : 1983 L.W.(Crl.)104 has held that S.l3 (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 to be interfered with.

In the result the criminal appeal is dismissed.