State: Food Inspector, Nagercoil Municipality vs Murugan

Maheswaran, J.—The State his preferred this appeal against the Judgment in S.T.C. No. 184 of 1982 on the file of the Chief Judicial

Magistrate, Kanyakumari at Nagercoil, acquitting the accused who has been charged for an offence under S. 7(i) and S.16(1)(a)(i) read with

S.2(ia)(m) of the Prevention of Food Adulteration Act, 1954.

Shortly stated, the facts are: On 31st March, 1982 at about 3-00 P.M., P.W. 1 the Food Inspector, and his maistry, Murugan, went to the

shop of the accused at No. 10/2-44, East Car Street, Nagercoil. The accused was running the shop selling butter under the name and style of Sri

Raja latter Shop. P.W. 1, the Food Inspector purchased 4150 grams of butter for Rs. 13-50 and obtained a cash receipt, Ex. P3. He then divided

the sample of butter so taken into three equal parts and packed them in three clean dry bottles and sealed them in accordance with the rules and

sent one bottle to the Government Analyst, Madras. The report of the Analyst showed that the butter is adulterated. The butter contained only

69.1 per cent of fat and 2.9 per cent of curd. Table (creamery) butter should contain not less than 80 per tent by weight of milk fat and not more

than 1.5 per cent by weight of curd. The Food Inspector laid the complaint after receiving the report. But, strangely the Chief Judicial Magistrate

acquitted the accused on the ground that the change might be due to natural causes. The State has preferred this appeal.

S.2 of the Prevention of Food Adulteration Act deals with the definition of the term ""adulterated food"". A reading of S.2 (ia)(m) shows that an

article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are

present in quantities not within the prescribed limits of variability but which does not render it injurious to health. In this case, the sample butter was

taken by P.W. 1. It is pointed out by the Learned Counsel for the respondent that P.W. 2 and one of the attestors to Ex. P2. Form VI notice, did

not support the case of the prosecution and he has stated that he has signed it because he was asked to sign the form. But, earlier in chief-

examination he stated that he has signed in the receipt, Ex. P3. It does not matter if the attestor has not supported the case. Reliance can be placed

on the evidence of the Food Inspector if it is reliable.

The next contention of the counsel for the respondent is that the Analyst has not been examined and therefore an opportunity to cross-examine

the Analyst was lost to the accused. In support, he relied on a judgment of a single Judge of this Court in Arumainayagam v. State by Food

Inspector 1984 L.W. (Crl.) 246. Even that judgment of the learned single Judge shows (to paragraph 5) that it is not necessary to examine the

Analyst to prove the report. That apart S.13(5) of the Act itself says that the report of the Analyst and the facts stated therein can be used in

evidence.

The Analyst''s report shows that the fat contents are 69.1 per cent and curd contents are 2.9 per cent and Clause A. 11.02.19 in Appendix B to

the Prevention of the Food Adulteration Rules. 1935 shows that Table (creamery) butter shall contain not less than 80 per cent by weight of milk

fat and not more than 1.50 per cent by weight of curd. As the sample did not satisfy that standard, the Analyst, in his report has stated that the

butter is adulterated. The learned Chief Judicial Magistrate has stated in his judgment that this may be due to natural causes. But, it should be noted

that the onus of proving that the change in the food article was due to natural causes is on the person who asserts it. In view of the definition under

S.2(ia)(m) the Act, the food article is adulterated. But, it is now argued by the Learned Counsel for the respondent that the condition of the butter

may be due to natural causes as the milk of cows of South India are not rich in fat contents and now he says that he may be given an opportunity to

examine the Analyst. I feel that the matter should go back to the trial Court for a de novo trial.

The appeal is allowed the judgment acquitting the accused is set aside and the matter is remitted to the Chief Judicial Magistrate, Kanyakumari

at Nagercoil, for disposal afresh unbiased by any observation made in this judgment.