State by Public Prosecutor vs T. Ponniah

Sathar Sayeed, J.—Against the acquittal of the respondent by the Trial Court, who stood charged under S. 7(i) and 16(1)(a)(i) read with S. 2(ia)(a) and (m) of the Prevention of Food Adulteration Act (Central Act 37 of 1954), the above appeal has been filed by the State.

It appears from the facts of the case that on 30th May, 1977 at 12.30 P.M. P.W. I, the Food Inspector went to the grocery shop of the respondent and for the purpose of taking sample, he purchased 7:0 grams of poppy seeds (Khas-Khas) for Rs. 4.65 after serving Form VI notice, Ex. PI and obtained a cash receipt Ex. P2 from the respondent. Thereafter, P.V.Il. divided the sample into three parts, put it in three bottles and sealed them. One bottle was sent to the Public Analyst as required under the Act for the purpose of analysis and two bottles were sent to local health authority. The Public Analyst in his report Ex. P8 has observed that no change has taken place in the constitution of the article sent to him that would interfere with the analysis. He obtained the oil after crushing the khsakhsa sent to him and found that the oil contained "free fatty acids in excess of permitted limit to the extent of 83 per cent." On receipt of the report Ex. P8, P.W. I sent a copy of the same to the respondent and filed the above case against him under the aforesaid section.

When the respondent was examined under S. 313, Crl. P.C., he denied the offence as alleged by the prosecution. He further contended that the poppy seed (Khas-Khas) which was purchased by P.W. 1, was sold to the respondent by a merchant of Madras called Sha Rathan Chand Tarachand. In order to show his bona fides that the commodity was purchased from the said merchant, he filed Ex. Dl, the original bill, dated 5th April, 1977.

The trial Court on the evidence adduced by the prosecution, came to the'' conclusion that an article like khas-khas obtained and purchased by P.W. I from the respondent and kept in a sack is liable to be affected by moisture, air, heat and similar vicissitude of climatic conditions and that it was an accepted fact that a primacy food like poppy seeds (Khas-Khas) placed in such a container and sack is liable to undergo certain changes and under the circumstances, it cannot be said that the commodity sold by the Respt, to P.W. I was an adulterated one and therefore, acquitted the respondent.

Against the acquittal of the respondent the State has filed the above appeal on the ground that the trial Court erred to note that poppy seeds are used for direct consumption and the quality of the seeds is dependent on its main ingredient, the oil derived from it and the oil in the instant sample is found to give free fatty acids in excess of the permitted limit mentioned in the Rule under the Central Act 37 of 1954 and a measure of free fatty acid content is a measure of the staleness of the food article and the food article in question has thus become stale and as such unfit for human consumption. In the circumstances, the learned Public Prosecutor contends that the acquittal of the respondent by the trial Court on the ground that the commodity in question was kept in a different condition and hence it could not be said that it was adulterated has to be set aside. There is some substance in the contention of the learned Public Prosecutor to the extent to hold that poppy seed (Khas-Khas) is a primary article of food. But the question that has to be considered in this case is whether under the R. 4.05.18 framed under the Act, poppy seed means the dried seeds of ripe fruit of Papaver Somniferum L. All that the Public Analyst ought to have done is to find out whether poppy seeds sent to him are adulated or not, more particularly when in his report, Ex. P-8 he states that no change had taken place in the constitution of the article that would interfere with the analysts. I am not expressing any view over this matter. But, the acquittal of the respondent has to be sustained on a different ground.

I find from the records that the complaint against the respondent under the aforesaid section was lodged on 5th August, 1977, and S. 13(2) notice was served on the respondent on 29th September, 1977. Under S. 13(2) of the Act the Food Inspector on receipt of the report of the Public Analyst, after the institution of prosecution, shall immediately forward a copy of the report of the Public Analyst to the accused informing him that he 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. But in this case we find that after the institution of the prosecution against the respondent, S. 13(2) notice was sent to the respondent after one month and 24 days contravening the provisions of S. 13(2) of the Act On this ground, I am of the view that the acquittal of the respondent by the trial court has to be sustained. In the circumstances, the appeal is dismissed.