State by Public Prosecutor vs Sokkanna Mudaliar

M.A. Sathar Sayeed, J.—Against the acquittal of the respondent, who stood charged under Ss. 16(1)(a)(i), 7(i) and 2(la) and (m) of the

Prevention of Food Adulteration Act, the State has preferred this appeals

It appears from the facts of the case that P.W. I Food-Inspector, Karamadai Panchayat Union, went to ''Mercuri Hotel'' in Karamadai on 26th

August, 1977 at 10.00 a.m., P.W. I introduced himself to the respondent who was sitting in the hotel at that time, and then purchased 660 ml. of

buffalo milk which was kept there for sale for a sum of 0.80 P. under Ex. P1 cask receipt. P.W. 1. also issued Form VI notice to the respondent

marked as Ex P2. As required by law, P.W. 1 after adding formalin divided the said milk into three parts and poured the same into three dry, clean

empty bottles and after observing all the formalities, sent one bottle to the public Analyst and handed over the remaining two bottles to the Local

Health Authority. The Public Analyst, in his report, Ex P8 has opined that the sample war deficient in solids-not-fat to the extent of at least 71%

The before. P.W. I laid a charge-sheet against the respondent under the aforesaid sections.

When the respondent was questioned under S. 313, Crl. P.C. he denied the offence and contended that the milk, from which the sample was

taken by P W. l was not intended for sale, but it was kept in his hotel only as an ingredient for preparing tea or coffee,

The trial Court, on the evidence projected by the prosecution, came to the conclusion that the sample of buffalo''s milk taken by P.W. I from the

hotel was kept only as an ingredient for preparing tea or coffee and the prosecution has sot brought home the guilt of the accused beyond

reasonable doubt, with these observations, the respondent was acquitted. It is against this acquittal, this appeal has been preferred.

It is contended by the learned Public Prosecute or that on the facts of the present case, P.W. I did go to the hotel of the respondent and he did

purchase the milk from the hotel for which the respondent has issued Ex. PI cash receipt. It is also contended by the leaned Public Prosecutor that

milk is an article of food and under the Act ""Food'' means any article used as food or drink for human consumption other, than'' drugs and water

and includes any article which ordinarily enters into, or is used in the composition or preparation of human food. It has to be considered, therefore,

whether the respondent has purchased a food article from the respondent''s hotel or it was an ingredient to be added in coffee or tea. If it was only

an ingredient and not a food article, there was no necessity in the respondent to sell milk alone to P.W. I. That apart, the contention of the

respondent that milk was not intended for sale is falsified by the issuance of the cash receipt, Ex PI by the respondent to P.W. 1. That apart, the

respondent dent has not let in any evidence to show that the milk, which was kept in the hotel, was not for sale. The milk purchased by P.W. I

under Ex. Pl cash receipt for 0.80 P. is a sale of food article.

S. 7 of the Prevention of Food Adulteration Act, 1954, contemplates that

No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute

(i) any adulterated food;

(ii) any misbranded food ;

(iii) any article of food, for the sale of which license is prescribed, except in accordance with the conditions of the license;

(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;

(v) any article of food in contravention of any other provision of this Act or any rule made thereunder, or

(vi) any adulterant.

EXPLANATION: For the purposes of this section"" a person shall be deemed to store any adulterated food or misbranded food or any article of

food referred to in Cl.(iii) or clause (iv) or CI (v) if he stores such food for the manufacture therefrom of any article of food for sale.

In State by Public Prosecutor v. Govindaraj Chettiar C.A. No. 480 of 1978, dated 17th February, 1981, reported in 1980 L.W. Crl. 81 on

similar facts, Maheswaran, J"" had occasion to consider the Explanation to S. 7 of the said Act. In that case also, it was contended that the milk

kept was not for sale, but it was intended to be used for the preparation of tea. Considering the Explanation, Maheswaran, J. Las observed thus:-

This Explanation was introduced by amending Act 34 of 1976, which came into fore on 1st April, 1978. This Explanation clarified that a person

shall be deemed to store any adulterated food if he stores such food for manufacture therefrom of any ''article of food for sale. The sample was

taken on 20th February, 1977 after the amendment. Therefore, the order of acquittal on the ground that the milk was stored not for sale, is

incorrect and has to be set aside.

Similarly, Varadarajan, J., as he then was, had an occasion to consider this point in CA. No. 122 of 1978 State by Public Prosecutor v. C.

Sambandam alias Sambandamoorthy Following the judgment of the Supreme Court in The Food Inspector, Calicut Corporation Vs. Cherukattil

Gopalan and Another, Varadarajan, J., as he then was he has held as follows :-

In view of the decision of the Supreme Court, it is not possible to agree with the learned Sessions Judge in this case, that merely because the milk

sold to P.W. I, was taken from the milk which was being boiled in the tea shop and that milk was intended for being used in the preparation of tea

to be sold to the customers, there was no sale of milk as such to P.W. 1. Following the decision of the Supreme Court, I hold that there was sale

of adulterated milk by the accused in this case to P.W. I.

I am in respectful agreement with the views expressed by Varadarajan, J., as he then was. The facts in the instant case bring to light that the milk

was kept in the hotel and P.W. I purchased the same from the respondent by paying cash under Ex. Pl. If it was an ingredient for the preparation

of tea or coffee, then there was no necessity to sell the milk alone, by the respondent to P.W. I. After going through the judgment of the trial Court,

I am of the view that the order of acquittal passed by the learned Magistrate against the respondent has to be set aside.

But on a close reading of the judgment and the evidence in this case, I find that the acquittal of the respondent has to be sustained on a different

ground. I find on a close reading of the evidence and the records of the Court below, that P.W. I has not followed the procedure laid down under

S. 13(2) of Central Act 37 of 1954. S. 13(2) of the Act runs thus :-

On receipt of the report of the result 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. 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 10 days from the date of receipt of the copy of the report to get the same of the

article of food kept by the local (Health) Authority analysed by the Central Food Laboratory.

In this case, I find that the complaint was lodged against the respondent on 22nd November, 1977 and the notice as required under S. 13(2) was

issued to the respondent on 9th November, 1977, that is even before lodging the complaint to the Magistrate. This is against the provisions of S.

13(2) of the said Act. It is on this ground, I am of the view that the acquittal of the respondent has to be sustained, Accordingly, this criminal

appeal fails and is dismissed.