State (The Food Inspector, Avanashi) vs Eswaran

Maheswaran, J.—The State has preferred this appeal against the judgment of the learned Sub Divisional Judicial Magistrate, Tiruppur

acquitting the respondent-accused who has been charged for offences punishable under Ss. 16(1)(a)(i) and (2)(ia) and (m), and 7(i) of the

Prevention of Food Adulteration Act.

On 14th December, 1976, P.W. I, the Food Inspector, Avanashi, purchased 375 grammas of coconut oil for Rs. 6.00 from the accused-

respondent (who was in his maligai shop), for analysis. He divided the oil into 3 equal Parts and sealed them in three clean dry bottles and sent one

such bottle to the Public Analyst and the other two bottles to the Local (Health) Authority. The report of the Analyst showed that the sample

contained a mixture of about 90 per cent of coconut oil and about 10 per cent of other oils. The learned Magistrate who tried the case, acquitted

the accused on the grounds (1) that the sample was not intended for human consumption; and (2) that Rules 7 and 18 of the Prevention of Food

Adulteration Rules have not been followed. The State has preferred this appeal.

It cannot be said that coconut oil which was sold to P.W. I, the Food Inspector was used as hair oil and was not intended to be used as a

cooking medium. There is on evidence in this case that the accused has informed the purchaser that the oil which he sells is not intended to be used

as an article of food. The faint contention that coconut oil is not used as food in some parts of the country must fail, because there is no article

which is used as food only in one part and not at all used as food in another part of the country. In this connection the observation of their

Lordships of the Supreme Court in State of Tamil Nadu Vs. R. Krishnamurthy, can be extracted with use:

It is to prevent the exploitation and self destruction of these poor, ignorant and illiterate persons that the definition of ''food'' is couched in such

terms as not to take into account whether an article is intended for human consumption or not. In order to be ''food'' for the purposes of the Act,

an Article need not be ''fit'' for human consumption; it need not be described or exhibited as intended for human consumption; it may even be

otherwise described or exhibited; it need not even be necessarily intended for human consumption; it is enough if it is generally or commonly used

for human consumption or in the preparation of human food, Where an article is generally or commonly not used for human consumption or in the

preparation of human food but for some other purpose, notwithstanding that it may be capable of being used, on rare occasions, for human

consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case, that it is not ''food*. In

such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But where the

article is one which is generally or commonly used for human consumption or in the preparation of human food may become material. But where

the article is one which is generally or commonly used for human consumption or in the preparation of human food there can be no question but

that the article is ''food''. Gingelly oil, mixed or not with groundnut oil or some other oil, whether described or exhibited as an article of food for

human consumption or as an article for external use only is ''food'' within the meaning of the definition contained in S. 2(v) of the Act.

The contention that the coconut oil was not sold as an article of food is without substance.

The other contention is that Rr.7 and 18 have not been followed. From the Judgment of the Magistrate, I am unable to gather as to how R.7 has

not been followed. In fact, Learned Counsel for the respondent-accused has not raised any contention in regard to R.7, but he strenuously

contended that R.18 has not been followed. R.18 says that a copy of the memorandum and a specimen impression of the seal used, to sail the

packet shall be sent to the public analyst separately by registered post to him or delivered to him or to any person authorised by him. Most

unfortunately, we do not have the evidence of P.W. I as to whether he sent the memorandum with the specimen seal as required under R.18. But

he has proved Ex. P4 which is the copy of the memorandum with the specimen seal. What is contended before me by the learned Public

Prosecutor is that any document purported to be a report signed by the Public Analyst, unless it has been superseded, may be used as evidence of

the facts stated therein in any proceedings under the Act under S. 13(5) of the Prevention of Food Adulteration Act. Now, Ex. P5, the Analyst''s

report very clearly shows that the Analyst found that the seal fixed on the container of the sample tallied with the specimen impression separately

sent by the Food Inspector and the sample was in a condition fit for analysis. It is therefore, obvious that the Public Analyst has. acted in

accordance with the rules and he has compared the specimen impression with the seal on the container. Therefore, the leaned Magistrate was in

error when he says that no postal receipt or acknowledgment has been produced to show that R.18 was complied with in this case. It is clear that

in this case R. 18 has been observed.

But, what is now contended before me, which contention was not raised before the courts below, is that there has been a violation of the

mandatory provision of S. 13(2) of the Act. A reference to the complaint filed in this case shows that it was filed on 14th March, 1977. The

Analyst''s report in this case was served on the accused-respondent on 2nd February, 1977, much prior to the institution of the proceedings in the

Court of the Sub- Divisional Judicial Magistrate, Tiruppur. S. 13(2) states as follows:-

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. 14A , 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 bet 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 ten days from the date or 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.

In P.K. Moorthy v. Food Inspector, Kumbakonam Municipality 1979 L.W.(Crl.) 139 a Division Bench of this Court of which I was a member

held that the provisions of Ss. 11 and 13(2) of the Act are mandatory and the non-compliance with those provisions will vitiate the entire

proceedings. Therefore, it must be held that the whole proceedings are vitiated as the pro visions of S. 13(2) have not been followed. The Order

of acquittal has therefore, to be confirmed, though not for the reasons stated by the Magistrate. In the result, the appeal fails and is dismissed.