State by Public Prosecutor vs Subramanian and Others

M.N. Moorthy, J.—The State is aggrieved by the order of discharge passed by the learned Chief Judicial Magistrate, Tirunelveli in CC. No.

131 of 1978, and has therefore, preferred this revision against the accused. The complaint was filed by the Food Inspector, Tirunelveli

Municipality, against the four accused/respondents for an offence under Ss. 7(l), 16(l)(a)(i) read with S. 2(ia) of the Prevention of Food

Adulteration Act,. 1954. The case against the accused is as follows:

Al is the salesman of the grocery shop, M/s. Nainar Moopanar Sons, No. 1. Kazhuvetri Mudukku Street, Tirunelveli. A2 to A4 are the

partners. On 24th February, 1978 at about 4.45 p.m. P.W. I, the Food Inspector, who is the complainant, purchased 750 gms of gingelly seeds

from the shop of the respondents for purposes of analysis for Rs. 4.65. After satisfying the formalities required by law regarding the purchase and

packing of the sample, P.W. 1 sent one bottle to the Public Analyst. The Public Analyst in his report, Ex. P5 opined that the sample is unfit for

human consumption since the oil derived from the sample is found to contain free fatty acids in excess of the maximum permitted limit to the extent

of 81%. On the basis of the report, a complaint was filed against the accused and S. 13(2) notice was served upon them.

When the accused were examined, they denied the offence, though they admitted that they are the partners of the firm. The lower Court

discharged the accused on the main ground that the gingelly seeds seized from the shop of the accused is a primary food and the prosecution has

not proved that the adulteration was within the control of human agency. This finding of the lower Court is now challenged by the learned Public

Prosecutor.

The point to be considered in this case is whether the action of the Public Analyst in converting the gingelly seeds into oil before analysing it is

correct. The sample of gingelly seeds taken by P.W. I was sent to the Analyst for analysis purposes. The analyst should not have converted the

gingelly seeds into oil and applied the standards prescribed for gingelly oil and given a finding that it is adulterated. In this context it is relevant to

note that S. 2(i) defines ""adulterant"" as any material which is or could be employed for the purposes of adulteration. There is a proviso to that

section which reads as under:

Provided that where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present

in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then

such article shall not be deemed to be adulterated within the meaning of this sub clause.

S. 2(xii-a) defines ""primary food"" as meaning any article of food, being a produce of agriculture or horticulture in its natural form,

It cannot be denied that gingelly seed is a primary food. If it contravenes the provision of S. 2(la), then gingelly seeds as such should be said to

be adulterated. But in this case what the Analyst has done is, he has converted the gingelly seeds into oil and then applied the standards prescribed

for gingelly oil.

R. 7(2) states that the public analyst shall cause to be analysed such samples of articles of food as may be sent to him by Food Inspector or by

any other person under the Act. Hence, if gingelly seeds are sent for analysis, it is the duty of the Analyst to analyse the sample of gingelly seeds

sent to him and he should not have converted the same into oil and then analysed. This action of the Analyst is against the spirit of R. 7 (2). If the

sample received by the Analyst as such is not subjected to the test, it may lead to anomalies. For instance, if butter is seized and sent for analysis

and the Analyst converts it into ghee and then applies the standards prescribed for ghee and finds the sample to be adulterated, the accused will be

at a loss, if he has to exercise his rights, on receipt of S. 13(2) notice because the sample available with the Local Health Authority would be only

butter and not ghee. This kind of illustration could be multiplied.

In as much as the Analyst has not followed the provisions of the Act and the Rules framed thereunder, the order of discharge of the lower Court

should stand.

I see no reason to interfere with this order and the revision case filed by the State is dismissed.