JUDGMENT
R. Banumathi, J.
1. State has come forward with this Appeal aggrieved over the Order of Acquittal. By the Judgment dated 29.08.1996, trial court – Judicial Magistrate No.I, Trichirapalli has acquitted the Respondent / accused under Sections 7(i), 7(v) & 16(1)(a)(i) read with 2(1a)(a) and (m) of Prevention of Food Adulteration Act (for short hereinafter referred to as ‘P.F.A.Act’).
2. Relevant facts for disposal of this Appeal could briefly be stated thus:-
P.W.1 – Food Inspector of Trichy Corporation is authorised to take food sample. He is also authorised to launch prosecution as per various Government Orders. The Respondent / accused is running a Provision Shop in Trichy Peria Kadai Veedhi. On 27.10.1995 – 1.30 PM, P.W.1 – Food Inspector visited the shop and introduced himself to the Respondent / accused. P.W.1 noted that about 10 kgs. of Pepper was kept for sale to the public. P.W.1 informed his proposal for taking the sample of Pepper. He called one Balasubramanian to be the witness who has agreed to be the witness for taking the sample. Form VI (Ex.P.2 – Notice) was served upon the accused, signed by the accused and also the witness.
3. By paying Rs.60/= under Ex.P.3 – Cash Receipt, P.W.1 purchased 600 grams of Pepper and divided them into three samples and kept them in clean glass bottles. The glass bottles were labeled and sealed. It was sealed with Code No.6/2001, Serial No.233/95-96. All three sample bottles were neatly packed in compliance with Sec. 10 of the Act. Under intimation to the Local Health Authority, one sample of Pepper along with Form VII (Ex.P-8) was sent to the Public Analyst in Palayamkottai. Remaining two samples were handed over to the Local Health Authority, who received the same under Ex.P.5 – Acknowledgment.
4. Form III – Public Analyst Report (Ex.P-11) was received. The sample was found to be adulterated as it contains mineral oil. Addition of mineral oil is not permitted in Pepper under P.F.A.Rules 1955. After receipt of the Analysis Report (Ex.P-11), P.W.1 – Food Inspector had requested Director of Public Health and Preventive Medicine for issuance of the written consent to launch the Prosecution against the accused. Upon consideration of the materials placed before him, the Director of Public Heath and Preventive Medicine had issued Ex.P.12 – Written consent for prosecuting the accused.
5. Criminal complaint was filed against the accused on 02.02.1996 for violation of the provisions of Secs. 7(i), 7(v) & 16(1)(a)(i) read with 2(1a)(a) and (m) and Rule 44 AAA of Prevention of Food Adulteration Act (taken on file on 04.03.1996). After the criminal compliant was taken on file in C.C.190/1996, Sec. 13(2) Notice was served upon the accused along with Form III (Ex.P.11) Public Analyst Report.
6. The accused entered appearance. The main defence raised by the accused was that P.W.1 – Food Inspector was not authorised to institute the Prosecution for the offences.
7. To substantiate the charge against the accused, P.W.1 was examined. Exs.P-1 to P-13 were marked. Upon consideration of the evidence, the trial court acquitted the accused mainly on the ground that P.W.1 – Food Inspector was not competent to launch the Prosecution. In support of his conclusion, the trial court referred to the decision in 1987 L.W.Crl.340.
8. Assailing the reasonings, the learned Government Advocate (Criminal Side) has submitted that the trial court has failed to take into consideration three Government Orders referred to by P.W.1 in his evidence and the finding of the trial court that P.W.1 is not authorised to file the complaint is unsustainable. The sample of the food being Pepper further finding of the trial court that the sample was not homogeneous one is also assailed. Further submitting that when the written consent of the Director of Public Health and Preventive Medicine is only required, the finding that the sanctioning authority had not considered the materials and not subjectively satisfied itself is perverse.
9. Referring to the two decisions 1997 (1) MWN (Crl.) 349 and 1997(2) MWN (Crl.89), the learned counsel for the Respondent / accused fairly conceded that consistent view is taken by this Court that the Food Inspectors appointed even subsequent to the issuance of Government Order in the year 1956 are competent to file the Complaint. However, the learned counsel for the Respondent / accused reiterated the other points that the sample was not homogeneous one and that there was no subjective satisfaction of the Sanctioning Authority before issuing Ex.P.12 – Sanction Order. He has further referred to 1998 SCC (Crl.) 1003 and prayed that even if the acquittal is based on the erroneous finding, at this distant point of time, the acquittal cannot be interfered with.
10. Whether the trial court was justified in acquitting the accused on the ground that P.W.1 – Food Inspector was not authorised to institute the Prosecution for the offences under the Act ? is the short point that arises for consideration in this Appeal.
11. Under Section 9 of the Act, both Central and State Government are empowered to appoint the Food Inspectors. The appointment of the Food Inspectors are notified in the Official Gazette.
12. In the trial court, objection was raised as to the legality of the appointment of P.W.1 – Food Inspector. On behalf of the accused, it was contended that Food Inspector / Complainant was not competent to lay the complaint as the Government Order referred to by P.W.1, viz., G.O.Ms.No.1861, Health dated 06.06.1956 authorising Food Inspectors to institute the prosecution for offences under the P.F.A.Act is relatable only to Food Inspectors who are already in service, but not to Food Inspectors to be appointed at a future date.
13. In this regard, reliance was placed upon 1987 L.W.Crl.340. Of course, in the said case, finding that there is no evidence regarding the date of appointment of the Food Inspector and that G.O.Ms.No.1861 Health dated 06.06.1956 is relatable only to Food Inspectors who are already in service, the Appeal was allowed and the matter was remitted to the trial court for de novo trial.
14. P.W.1 was then Sanitary Inspector, working in Karur Municipality, who had undergone Training in Food Inspection and Sampling conducted at the Food Analysis Laboratory as per Rule 8(iii) of the Prevention of Food Adulteration Rules 1955. On completion of training, he is appointed as the Food Inspector. In his evidence, P.W.1 claims to have been appointed as the Food Inspector as per G.O.No.3591 Health, Education and Local Administration Department dated 26.11.1955.
15. Notification II of the above Government Order reads thus:-
In exercise of the powers conferred by section 9 of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954), the Governor of Madras hereby appoints as Food Inspectors, for the purpose of the Act, with effect from the 24th September 1955:-
(a) in the Corporation of Madras, the Health Officer, Corporation of Madras, and the persons under his control hitherto called as “Food Inspectors”,
(b) in the case of a municipality having a Municipal Health Officer, the Municipal Health Officer and Sanitary Inspectors under his control, in the case of a municipality not having a Municipal Health Officer, the Commissioner of the municipality and the Sanitary Inspectors under his control,
(d) in the case of a panchayat having a Sanitary Inspector, the Sanitary Inspector,
(e) in the case of a panchayat not having a Sanitary Inspector, the Executive Officer of the panchayat or the Health Inspector of the range concerned, and they shall have jurisdiction within the local area in respect of which they hold office.
Thus as per the above Government Order, in cases of Municipality not having a Municipal Health Officer…., the Sanitary Inspectors are appointed as Food Inspectors.
16. In the above decision – 1987 L.W.(Crl.) 340, while interpreting G.O.Ms.No.1861, it was held that G.O.Ms.No.1861, Health dated 6th June, 1956 published at page 350 of Part I-A of Fort St.George Gazette, dated 20th June, 1956 authorising Food Inspectors to institute prosecution for offences under the Act is relatable only to Food Inspectors who are already in service, but not to Food Inspectors to be appointed at a future date.
17. In continuation of G.O.Ms.No.1861 Health, Education and Local Administration Department dated 06.06.1956, the Government of Tamil Nadu has passed another Government Order G.O.Ms.No.571 Health Indian Medicine & Homeopathy & Family Welfare Department dated 15th April 1991 and the following Appendix is issued to the earlier Notification amending the expression “Food Inspectors appointed” as “Food Inspectors appointed from time to time”.
18. G.O.Ms.No.571 dated 15.04.1991 reads thus:
APPENDIX
NOTIFICATION
In exercise of the powers conferred by sub-section (1) of section 20 of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954), the Governor of Tamil Nadu hereby makes the following amendment to the Notification issued with the Health, Education and Local Administration Department Notification No.155 published at Page 35 of Part I-A of the Fort St.George Gazette, dated the 20th June, 1956″.
AMENDMENT
In the said Notification, for the expression “Food Inspectors appointed”, the expression “Food Inspectors appointed from time to time” shall be substituted.
The above Government Order clearly nullifies the decision reported in 1987 L.W.Crl.340. In his evidence, P.W.1 – Food Inspector has clearly referred to G.O.Ms.No.571 dated 15.04.1991. But the trial court has not taken note of the subsequent Government Order, as per which the earlier G.O.No.1861 Health, Education and Local Administration Department dated 06.06.1956 is now relatable to the “Food Inspectors appointed from time to time”. But the same was not taken note of by the trial court.
19. Where the Complainant has given evidence that he was appointed as Food Inspector under various Government Orders referring to the details of Government Orders, he was giving direct evidence of the fact. The question whether the Food Inspector was duly appointed and qualified is a question of fact. The trial court ought to have verified the Government Orders. In fact Court is expected to take judicial notice of Government Orders. The trial court erred in throwing the complaint overboard on the ground that P.W.1 was not authorised to file complaint. If the court was not convinced with the evidence of P.W.1, it ought to have called upon the Complainant to produce the relevant Government Orders under which he is authorised. Judges are not mere spectators of the System. They have a duty to unfold the truth and secure complete justice. Earnest and sincere efforts must be made to do justice by administering the law to advance the cause of justice. While the court is expected to take judicial notice of the Government Orders, the trial court ought to have taken note of G.O.Ms.No.571, Health Indian Medicine & Homeopathy & Family Welfare Department dated 15.04.1991. While so, the trial court committed serious and substantial error in not taking note of G.O.Ms.No.571 Health Indian Medicine & Homeopathy & Family Welfare Department dated 15.04.1991 though it was referred to by P.W.1 – Food Inspector and erred in applying 1987 L.W.Crl.340.
20. Thus P.W.1 Food Inspector derives his authorisation to take food sample and also to launch the prosecution as per:-
(1) G.O.No.3591 Health, Education and Local Administration Department dated 26th November 1955;
(2) G.O.Ms.No.1861 Health,Education and Local Administration Department dated 6th June 1956;
(3) G.O.Ms.No.571 Health Indian Medicine & Homeopathy & Family Welfare Department, dated 15th April 1991.
21. In fact, in the subsequent decisions by this Court in 1997 (1) MWN (Crl.) 349 and 1997(2) MWN (Crl.) 89, consistent view had been taken that Government Order issued in the year 1956, applicable to all the Food Inspectors even if they were appointed subsequent to the issuance of the G.O.Ms.No.1861 – Also, by virtue of the power conferred under Sec. 20 all the Food Inspectors are competent to file complaint”.
In the first decision, learned single Judge elaborately referring to various Government Orders has held thus:
“As regards the first ground, this point has been already decided in several decisions earlier holding that the Government Order issued in the year 1956 would be applicable to all the Food Inspectors though they have been appointed subsequently. Moreover, by virtue of the (power) conferred under Section 20 of the Act, all the Food Inspectors are competent to file a complaint against any person, who is involved in the offence under the provisions of the Prevention of Food Adulteration Act”.
The view taken by the learned Magistrate in not taking note subsequent Government Order and of the consistent view of the decisions of this Court is patently erroneous and cannot be sustained.
22. P.W.1 – Food Inspector is thus competent to take the food sample and also launch the Prosecution. Since the findings of the trial court that P.W.1 – Food Inspector is not authorised suffer from serious and substantial error, the order of acquittal is to be necessarily interfered with and the matter is to be remitted back to the trial court for fresh consideration.
23. The learned counsel for the accused relied upon 1998 SCC (Crl.) 1003 and contended that the Supreme Court declined to interfere with the Order of acquittal though it was found to be on the basis of erroneous finding and absence of proper sanction for prosecution. The case before the Supreme Court arose out of an order of acquittal after 20 years and relating to sanction and in that view of the matter, the Supreme Court found that though the acquittal was on the basis of erroneous finding, declined to interfere with the order of acquittal by remitting it back. But the case in hand stands on a different footing. The order of acquittal is mainly based upon the Misconception of Government Orders – “that P.W.1 was not authorised to file the complaint”. That patent erroneous finding cannot be allowed to stand and need to be necessarily interfered with.
24. Two other points are urged by the Respondent / accused, viz.,
(i) that the Sanctioning Authority had not satisfied itself before issuing the sanction order (Ex.P-12);
(ii) no homogeneous sample was taken by P.W.1 and sent for analysis;
It is open to the accused to raise the above points before the trial court when the matter is remitted back to the trial court.
25. or the reasons stated above, the Order of acquittal by the Judicial Magistrate No.I, Trichirapalli in C.C.190/1996 (dated 29.08.1996) is set aside. The matter is remitted back to the trial court for a de novo trial. The trial court is directed to try the matter afresh and dispose the matter in accordance with law in the light of the above observations. The trial court is further directed to dispose of the matter within six months from the date of receipt of the Judgment and records and this Appeal is ordered accordingly.