State of Kerala vs K.C. John and Another

Kader, J.—This appeal is directed against an order of acquittal passed by the Judicial Magistrate of 1st Class, Changanacherry, in a case under the Prevention of Food Adulteration Act which will hereinafter be referred to as ''the Act'' for brevity.

On June 11, 1976 at about 6.30 a.m. P.W.1, the Food Inspector, purchased 675 ml. of buffalo milk from a quantity of about 5 litres from the first accused who brought the same for supply to the Co-operative Milk Supply Society at Nedumkunnam, for the purpose of analysis. The milk belonged to the second accused who sent it through the first accused, his servant, for sale in the society. As per Ext. P-5, the report of the public analyst, the sample sent for analysis did not conform to the standard prescribed and also contained added water. The accused were therefore prosecuted for offences punishable u/s 2(i)(a) and 7(i) read with Section 16(1)(a)(i) of the Act for having sold adulterated buffalo milk.

Although the first accused admitted that the milk belonged to the second accused and that the Food Inspector took some milk from the quantity of milk which he was carrying to the society, he denied having received any price.

The second accused admitted that the milk was sent by him through the first accused to the society, but he stated that he was not aware of the purchase of the sample by the Food Inspector and that the society to which he supplied the milk will send the same to Kottayam for pasteurisation and that he used to receive the price once in two weeks.

One witness (D.W.1), the Secretary of the society, was examined on behalf of the accused.

The trial court on a consideration of the evidence, found that P.W.1 purchased the sample of buffalo milk as alleged from the first accused, that the milk belonged to the second accused and that "the milk supplied by the accused in the society was for consideration in money", but relying on a decision reported in Municipal Corporation of Delhi Vs. Laxmi Narain Tandon and Others, held that there was no sale as defined under the Act as the milk which the society collected was not intended for sale as such, and acquitted the accused.

The learned Public Prosecutor very strongly attacked the order of acquittal based on the finding that there was no sale in accordance with the definition of the Act and contended that on the facts proved and admitted, there was a sale in accordance with the provision of the Act., and that the trial court has not properly understood the decision relied on, which has no application to the facts of the case and therefore the order of acquittal should be set aside and the accused convicted for the offences with which they were charged.

The reasoning and ground, on which the order of acquittal was based, are clearly wrong and unsustainable as rightly pointed out by the learned public prosecutor. It has been sufficiently proved in the case that P.W.1 purchased a sample of buffalo milk for the purpose of analysis in accordance with the provisions of the Act from the first accused who was carrying the same to the society at Nedumkunnam and that the milk belonged to the second accused. These facts were not disputed before the trial court and are not disputed before this Court also. The trial court fell into a serious error by accepting the argument advanced on behalf of the accused that the milk from which P.W.1 purchased the sample was being taken for the purpose of storing in the society which only sent the same for sale to the Co-operative Milk Supplies Union, Kottayam and therefore it cannot be said that the first accused was carrying the milk for sale to the Society at Nedumkunnam. The second accused was a member of this society to which he was supplying milk through the first accused, his servant. The Society after collecting the milk will send the same to the Co-operative Milk Supplies Union, Kottayam which will sell the same after pasteurisation. It has also come out in evidence that after the pasteurisation, if it was found that water had been added to the milk there will be proportionate deduction in the price of the milk and the price of the milk was being paid to the second accused by the society once in two weeks. The ledger Ext. D-1 kept in the society and relied on by the accused clearly proves this. The second accused has put his signatures in Ext. D-1 acknowledging the receipt of the price of milk supplied. The Society was collecting the milk as an agent of the Co-operative Milk Supplies Union, Kottayam, to whom the second accused was supplying the milk. This apart, the purchase of the sample of buffalo milk by P.W.1 from the first accused, is clearly a sale within the definition of the word ''sale'' under the Act. The decision relied on by the trial court has no application to the facts of the case. It is now settled law and is also clear from the special definition of ''sale'' in Clause (xiii) of Section 2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act. See The Food Inspector, Calicut Corporation Vs. Cherukattil Gopalan and Another, Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, State of Uttar Pradesh Vs. Kartar Singh, and Sarjoo Prasad Vs. The State of Uttar Pradesh, . If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished u/s 16(1)(a)(i) of the Act". See State of Kerala v. Alasserry Mohammed 1978 Crl. L.J. 925 at page 931 and 932.

In fairness to the learned advocate appearing for the accused, it has to be said that he did not make any attempt to support the reasoning on the basis of which the acquittal was entered. But he strongly contended that the order of acquittal can be sustained on a valid ground. The counsel pointed out that the mandatory provisions in Section 13(2) of the Act have been flagrantly violated in this case and thereby the accused have been deprived of a very valuable right conferred on them and on this short ground the order of acquittal has to be upheld. Section 13 of the Act, as it now stands after the amendment has undergone a very substantial change and a new law and procedure have been prescribed thereunder. Section 11 of the Act has also been amended bringing out substantial changes in the procedural law relating to taking of the sample. Before the amendment, after dividing the sample into three parts, it was obligatory on the part of the Food Inspector to deliver one of the parts to the person from whom he has taken the sample. Now none of the parts of the sample taken is to be delivered either to the vendor or to the person whose particulars have been disclosed u/s 14A of the Act. Under the new procedure, the Food Inspector shall send one of the three parts of the sample to the public analyst for analysis under in limitation to the Local (Health) Authority and the remaining two parts to the Local (Health) Authority. A right had been conferred on an accused-vendor under Sub-section (2) of Section 13 to question the correctness of the report of the Public Analyst by making an application to the court for sending the part of the sample given to him or the part produced in court by the Food Inspector to the Central Food Laboratory for analysis. This right has been preserved and retained under the present Section 13 of the Act, although the procedure prescribed therein is different. The Public Analyst will now deliver the report of the result of analysis to the Local (Health) Authority and not to the Food Inspector. On receipt of the report from the Public Analyst 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 article of food was taken and the person, if any, whose name, address and other particulars have been disclosed u/s 14A, forward a copy of the report of the result of analysis to the vendor and the person whose name and particulars have been disclosed u/s 14A, informing them that they may, if it is so desired, 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 article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. When such an application is made to the court, the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority to the court within a period of five days from the date of receipt of such requisition. The court shall not, in such a case, continue with the proceedings pending before it until it receives the report of the result of the analysis from the Director of Central Food Laboratory. The certificate issued by the Director shall supersede the report given by the Public Analyst. Under proviso to Sub-section (5) of Section 13, any document purporting to be a certificate signed by the Director of the Central Food Laboratory, except a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to Sub-section (1A) of Section 16, shall be final and conclusive evidence of the facts stated therein. The right conferred on accused u/s 13(2) of the Act is a very valuable one and the provisions contained therein are mandatory in nature. Admittedly these provisions in Section 13(2) have not been complied with. By flagrantly violating these mandatory provisions, the accused have been deprived of a valuable right conferred on them resulting in serious prejudice to them. In the circumstances, it would be unsafe to enter a conviction on the basis of the report of the Public Analyst. Although the ground on which the acquittal was founded is wrong, in the light of the facts and circumstances mentioned above, it is not safe to interfere with the order of acquittal, This appeal therefore fails and is hereby dismissed.