State by Public Prosecutor vs Rengasamy Naidu

Suryamurthy, J.—This is an appeal by the State against the acquittal of the respondent by the learned Chief Judicial Magistrate of Madurai.

A complaint was laid against the respondent in C.C. No. 3 of 1977 on the file of the Chief Judicial Magistrate, Madurai by the Food Inspector

on the allegation that the accused Rengaswami Naidu, who is the respondent herein, had in his possession cow''s milk for the purpose of sale,

offered it for sale and also sold the same in front of door No. 5, Thirupparankundram Road, Madurai, at 4.30 p.m. on 1lth September, 1976 to

Thiru S. Muthuswami, Food Inspector, Madurai Corporation, Madurai, that the cow''s milk on analysis by the Public Analyst for Madurai

Corporation was found to contain 4.5% of solids-not-fat as against 8.5% of solids-not fat prescribed under the Prevention of Food Adulteration

Rules and hence deficient in solids-not-fat to the extent of at least 47% and was therefore adulterated and that thereby the accused had committed

an offence under SS. 7 (ia) (a) and (m) 7 (i), 16 (1 A) and 16 (1) (a) (i) of the Prevention of Food Adulteration Act (Act 37 of 1954) (hereinafter

referred to as the Act) read with CI. A. 11.01.11 in Appendix B to R. 5 of the Prevention of Food Adulteration Rules 1955 (hereinafter referred

to as the Rules).

The case of the prosecution has been spoken to by P.W.I, the Food Inspector. On 19th November, 1976 at 4.30 p.m. when P.W. 1 and his

ministry were proceeding on Thirupparankundram Road for the purpose of taking samples of food, P.W. 1 saw the accused in front of door No. 5

of that road, carrying an Aluminium vessel containing 4 liters of milk. On interrogation he said that he was taking the milk for supply to the residents

of Kakka tope. P.W. 1 purchased from him in the presence of one Arunachalam 660 ml. of milk for Re. 1 and obtained the receipt Ex. PI from

him and served a notice in Form VI. Ex. P2 is a copy of the notice served on the accused.

Thereafter, P.W. 1 divided the milk into three equal parts and poured each part into three separate bottles which were empty, dry and clean and

added 18 drops of formalin to each of the bottles, corked them, tied a twine to them and affixed label No. 19876 on each of them after obtaining

the signature of the accused therein. Thereafter, he again wrapped each of the bottles with a thick paper and tied them each with strings and

obtained the signature of the accused on the three separate labels and affixed the labels and outer cover to each of the bottles. He then recorded

the statement of the accused which has been exhibited as Ex. P3. The accused signed in Ex. P3. He prepared the mahazar Ex. P4 in which also the

accused signed.

The accused then went to Kakka Tope accompanied by P.W. 1 and sold the remaining milk to one Shenbagam. Shenbagam who purchased

500 ml. of the same milk gave the statement, Ex. P5 which was attested by P.W. 1. Then P.W. 1 sent the report, Ex. P6 to the office. He sent one

bottle to the Public Analyst and sent the sample seal separately by post on the next day. The other two bottles were handed over to the Health

Officer. On 27th November, 1976, Ex. P8 was received from the Public Analyst reporting that the bottle sent to him for examination was broken

and therefore, the other bottle was sent by the Health Officer with the original of Ex. P9.

Subsequently, Ex. P10 was received from the Public Analyst reporting that, on analysis the fat content was found to be 5.2% and solids-non-fat

4.5% and that CI. A 11. 01.11 in Appendix B to the Prevention of Food Adulteration Rules, 1955, required that cow''s milk shall contain not less

than 8.5% solids-not-fat. Therefore, the Public Analyst was of the opinion that the sample is deficient in solids-not-fat to the extent of at least 47%.

Hence it follows that the milk sold by the accused was adulterated.

The complaint was laid on 28th December, 1976. Thereafter, on 7th January, 1977 the Health Officer sent a notice under S. 13 (2) of the Act a

copy of which has been marked as Ex. PI 1 to the accused regarding the result of the analysis by the Public Analyst and the accused was informed

that he may make an application to the Chief Judicial Magistrate''s Court within ten days from the date of receipt of the analyst''s report he wanted

to get the food sample with the Health Officer, Madurai Corporation analysed by the Central Food Laboratory.

These facts have been spoken to by P.W.I. No fact has been elicited from him in the course of the cross-examination to discredit his evidence.

When examined under S. 313, Crl. P.C., the accused has merely denied the entire offence and has not specifically stated that he did not sell the

milk or did not issue the receipt or did not give a statement or at least a mahazar. He has not given any intelligible explanation and has not

endeavored to explain away any of the circumstances established by the evidence of P.W. 1 against him and the documentary evidence filed by the

prosecution.

The learned Chief Judicial Magistrate has strained himself to disbelieve the case of the prosecution and to acquit the accused. The learned

Magistrate has observed as follows :

There is no evidence except that of the Food Inspector himself to show that he purchased milk on 19th November, 1976 from the accused. One

Arunachalam is said to have been present at that time. He has not been examined as a witness by the prosecution. The remaining milk is said to

have been sold to one Shenbagam. Shenbagam has not been examined as a witness""''.

Again he has observed-

It was suggested to the Food Inspector in the course of his cross-examination that the milk was not purchased from the accused, but from a

woman and that when the accused intervened to mediate his signatures were taken in some records. This suggestion has been denied by the Food

Inspector.

The learned Magistrate who has referred to the suggestion made to the Food Inspector in the course of his cross-examination has not stated

whether he attaches any weight to the suggestion. He was of the opinion that it is unsafe to convict the accused on the uncorroborated testimony of

the Food Inspector. He, therefore, acquitted the accused.

The reasons given by the learned Magistrate for acquitting the accused cannot bear a moment''s scrutiny. Arunachalam could not be examined

as a witness, because he turned hostile to the prosecution as may be seen from the endorsement made on the complaint itself. The other witnesses

were not examined, because the prosecution thought that their evidence was unnecessary. The sale of the milk to a woman called Shenbagam is

not the subject matter of the prosecution and therefore, there was no purpose in examining her as a witness. The evidence of the Food Inspector is

corroborated by the statement given by the accused which has been exhibited as Ex. P3. The fact that the accused sold the milk to P.W. 1 is

proved by the fact that he had issued the receipt Ex. PI. The accused has also signed in Ex. P2 in acknowledgment of having been served with a

notice in Form VI. He has signed in the labels attached to the sample bottles as well as in the mahazar prepared by the Food Inspector, Ex. P5.

When examined under S. 313, Crl. P.C., he has merely denied the entire offence and has not ventured to state that the signatures in Exs. PI to P4,

purporting to be his signatures are not his signatures but rank forgeries. When examined generally he has not stated that he did not sell the milk and

did not issue any receipt and did not receive a notice in Form IV and did not sign in the mahazar or in the labels attached to the bottles of milk

containing the sample. By way of abundant caution I have compared the signatures in Exs. PI to P4 purporting to be the signatures of the accused

with the signatures in the statement of the accused under S. 313, Crl. P.C. and I have no hesitation in coming to the conclusion that the signatures

in Exs.Pl to P4 purporting to be the signatures of the accused are in fact the signatures of the accused. Thus, the evidence of P.W.I, the Food

Inspector, is corroborated in every particular by Exs.Pl to P4.

The learned Magistrate erred in thinking that the uncorroborated testimony of a Food Inspector cannot be accepted and acted upon. In Babu

Lal Hargovindas Vs. The State of Gujarat, the Supreme Court has laid down that-

It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to

the one as in the case of wills where the law makes it imperative to examine an attesting witness under S. 68 of the Evidence Act to prove the

execution of the will. The evidence of the Food Inspector alone, if believed, can be relied on for proving that the samples were taken as required

by law.

In Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, the Supreme Court has again held that-

The obligation which S. 10 (7) casts on the Food Inspector is to ''call'' one or more persons to be present when he takes action. The facts in the

instant case show that the Food Inspector did call the neighboring shopkeepers to witness the taking of the sample, but none was willing to co-

operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent

witnesses. In Babulal Hargavindas v State of Gujarat 1171 S.S.C. 53 : A.I.R 1971 S.C.278 : 1971 Cri.L.J. 1085 it was held by this Court after

noticing that S. 10 (7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the

position of an accomplice his evidence alone if believed, can sustain the conviction. The Court observed that this ought not to be understood as

minimizing the need to comply with the salutary provision in S. 10(7) which was enacted as a safeguard against possible allegations of excesses or

unfair practices by the Food Inspector.

As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore, driven to take the sample in

the presence of the members of his staff only. It is easy enough to understand that shop keepers may feel bound by fraternal ties, but no court can

countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws.

In the instant case, Arunachalam had to be kept out of the witness box, because he had been won over by the accused and therefore, he could

not be examined to corroborate the evidence of P.W.I

In Public Prosecutor v. Subban Chettiar 1970 M.LJ. Cri 281, K.N. Mudaliyar, J. has observed as follows-

S. 134 of the Evidence Act is extracted herein below. ''No particular number of witnesses, shall in any case be required for the proof of any fact.

In terms of S. 10(l)(a) and Sub-S.(7)of Act 37 of 1954 (Prevention of Food Adulteration Act) the Food Inspector (P.W.I) shall call one or more

persons to be present at the time when such action is taken and take his or their signature. This is precisely what P.W.I has done when he got the

signature of P.W.2. So far as the failure on the part of P.W.I to record the address of P.W.2 is concerned, it has really no material bearing on the

appreciation of the evidence of P.W.I. P.W.2 admits that he has a soda shop, at Meenakshi Nilayam. When he admits he is a neighbor running a

soda shop, here is P.W.2 with an address of his own as proved by the evidence of P.W.2 himself. The learned Magistrate erred in permitting the

absence of the address of P.W.2 being recorded to influence his appreciation of the evidence of P.W.I. The learned Sub Divisional Magistrate

ought to hive seen that no motive is suggested against P.W.I by the accused and in the absence of any motive or enmity alleged against P.W.I, the

facts proved by P.W 1 are acceptable. SI34 of the Evidence Act makes it clear that any fact could be proved even by a single witness. There is a

recent trend in cases of this type and similar cases that the attesting witnesses turning hostile there is a tendency on the part of the courts below to

disbelieve the evidence of P.W.I or the Food Inspector. This trend is really deplorable and the courts below would do well to keep S. 134 of the

Evidence Act in view and then appreciate the evidence of the Food Inspector by that standard laid in SI 34 of the Evidence Act. I believe the

evidence of P W.I regarding the facts spoken to by him about his purchase of ghee and his giving a sum of RS. 5 for the purchase of the ghee and

also his obtaining the acknowledgment from the accused and his sending the sample to the Public Analyst.

With great respect, I follow the ratio of the decisions referred to above. No fact has been elicited from P.W.I in the curse of his cross

examination to discredit his evidence. The version of the accused suggested to P.W.I in the course of his cross examination but not stated by the

accused himself when examined under S. 313, Crl. P.C., namely, that the Food Inspector P.W.I purchased milk from a woman and when the

accused intervened his signatures were taken, is, on the face of it, false. The accused had no business to intervene and mediate between the Food

Inspector and the person who sold the milk to him for taking a sample. The accused himself has not ventured to state that he intervened or

mediated between P.W. 1 and the alleged vendor of the milk. Therefore, the aforesaid suggestion made to P.W.I in the course of his cross-

examination is undoubtedly a fantastic suggestion which cannot be taken into consideration in assessing the evidence adduced by the I prosecution.

As observed already the report of the Public Analyst proves that the milk was found adulterated. The bottle containing the sample taken from the

accused by the Food Inspector was sent to the Public Analyst and was subsequently damaged. Therefore, the other bottle which had been handed

over to the Local Health Authority was sent to the Public Analyst. This fact is relied on by the learned counsel for the respondent in an endeavour

to discredit the case of prosecution. It is not the case of the accused that the second bottle of sample sent to the Public Analyst was not the bottle

containing the sample milk purchased from him by P.W.I. S.U(2) of the Act lays down that ''where the part of the sample sent to the Public

Analyst under sub-clause (i; of clause (c) of Sub-s. (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the

Public Analyst or Food Inspector dispatch one of the parts of the sample sent to it under sub-clause (ii) of the said clause (c) to the Public Analyst

for analysis''. By reason of this provision incorporated in S. 11(2) of the Act, the Food Inspector was entitled to send for analysis another bottle

containing the sample of the milk purchased from the accused, which he had entrusted to the Local Health Authority. Nothing turns on the fact that

the first bottle was broken and another bottle containing the sample in question was subsequently sent to the Public Analyst and was found to be

adulterated. Therefore, I find that the accused is guilty of an offence punishable under SS. 2(a) (a) and (m), 7(i), 16(1-A) and 16(1) (a) (i) of the

Prevention of Food Adulteration Act, read with CI. A.1l.01.11 in Appendix B to Rule 5 of the Prevention of Food Adulteration Rules 1955, and

convict him thereunder.

The case is adjourned to 24th April, 1981, for the appearance of the accused to be heard on the question of sentence.

Despite the case being adjourned twice for the appearance of the accused and to hear the accused on the question of sentence, the accused

has not turned up. I have heard his learned counsel.

S. 16(1) (a) (i) of the Act lays down that-

16 (1). Subject to the provocations of Sub-s. (l-A) if any person-

(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale* or stores, sells or distributes any article of

food-

(i) which is adulterated within the meaning of sub clause (m) of clause (ia) of S. 2 or misbranded within the meaning of clause (ix) of that section or

the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority; he shall,

in addition to the penalty to which he may be liable under the provisions of S. 6, be punishable with imprisonment for a term which shall not be less

than six months but which may extend to three years and with fine which shall not be less than one thousand rupees.

Therefore, the accused is convicted under SS. 2(ia)(a) and (m) 7(i) 16(1-A) and 16(1) (a) (o) of the Prevention of Food Adulteration Act read

with clause A 11.01.11 in Appendix B to Rule 5 of the Prevention of Food Adulteration Rules, 1955, and sentenced to rigorous imprisonment for

six months and a fine of Rs. 1,000, and in default of payment of fine to undergo rigorous imprisonment for a further period of one month. The

appeal is allowed.