High Court Kerala High Court

P.A. Anil vs Food Inspector on 23 June, 2009

Kerala High Court
P.A. Anil vs Food Inspector on 23 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 843 of 2001()



1. P.A. ANIL
                      ...  Petitioner

                        Vs

1. FOOD INSPECTOR
                       ...       Respondent

                For Petitioner  :SRI.SANTHOSH SUBRAMANIAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :23/06/2009

 O R D E R
                          R. BASANT, J.
           -------------------------------------------------
                  Crl.R.P. No. 843 of 2001
           -------------------------------------------------
          Dated this the 23rd day of June, 2009

                              ORDER

The verdict of guilty, conviction and sentence in a

prosecution under Sec.16 of the Prevention of Food

Adulteration Act, 1954 (for short `the Act’) is assailed in this

revision petition by the accused.

2. The crux of the allegations against the petitioner

herein is that he had sold to the Food Inspector for analysis

adulterated curd when the Food Inspector inspected the

premises of a non-vegetarian tea shop in which the second

accused – the mother of the petitioner, was the alleged

licensee. The 2nd accused has been found not guilty and

acquitted.

3. The prosecution examined P.Ws.1 and 2 and proved

Crl.R.P. No.843 of 2001 -: 2 :-

Exts.P1to P13. The accused did not adduce any defence

evidence.

4. The courts below concurrently found that the

prosecution has succeeded in establishing all the ingredients of

the offence alleged against the petitioner. Accordingly, they

proceeded to pass the impugned concurrent judgments.

5. The learned counsel for the petitioner and the learned

Public Prosecutor have advanced their arguments. The learned

counsel for the petitioner assails the impugned judgments on

various grounds.

6. First of all it is contended that the premises from where

the sample was drawn is a non-vegetarian tea shop and the

sample of curd allegedly purchased from the premises was not

kept or offered for sale as curd. I find no merit in this

contention. On facts the conclusion appears to be inevitable

that curd was offered for sale as curd. In different cups the

curd were kept for sale. The Food Inspector found that the

same was kept for sale as curd. The plea that it is improbable

that curd would be served as such in a non-vegetarian restaurant

is not reasonable at all. Even assuming that the sample was not

kept for sale as curd the contention does not appear to be

acceptable in law.

Crl.R.P. No.843 of 2001 -: 3 :-

7. The relevant statutory stipulations appear in Sec.10(2)

of the PFA Act while dealing with the powers of the Food

Inspector to draw sample. I extract Sec.10(2) of the PFA Act

below:

“10. Powers of Food Inspectors.—

x x x x x x x

(2) Any Food Inspector may enter and

inspect any place where any article of food

is manufactured, or stored for sale, or

stored for the manufacture of any other

article of food for sale, or exposed or

exhibited for sale or where any adulterant

is manufactured or kept, and take samples

of such article of food adulterant for

analysis.

Provided that no sample of any article

of food, being primary food, shall be taken

under this sub-section if it is not intended

for sale as such food.”

The body of Sec.10(2) of the PFA Act permits the Food Inspector

to draw samples of all articles of food even when they are not

kept for sale as such and are kept there for the purpose of

manufacture of food for subsequent sale. The law recognises

only one exception. If such article is an article of primary food,

Crl.R.P. No.843 of 2001 -: 4 :-

the Food Inspector is proscribed from taking the sample of

primary food unless the same is intended for sale as such food.

In the instant case, the case of the prosecution is very clear.

Curd was kept in the premises for sale as curd. Even assuming

that the curd was not kept for sale as curd, the proviso to Sec.10

(2) has no application and the course adopted by the Food

Inspector of drawing sample of curd must be held to be

absolutely justified.

8. The learned counsel for the petitioner contends that it

is not the case of the petitioner that what is taken as sample was

curd. Though he did not specify what the article was, the

learned counsel contends that what was taken as sample was an

article which was kept there for the purpose of preparation of

salad etc., and the Food Inspector erred grossly in reckoning the

sample as a sample of curd prepared from cow’s milk.

9. I find no merit in this contention. Form VI notice issued

to the petitioner marked as Ext.P2 as also the voucher for the

price of the article issued to the petitioner by the Food Inspector

Ext.P3 do both clearly show that what was purchased was curd.

In these circumstances, the laborious contention urged that

what was sampled/purchased was not curd and the description

of the article as curd by the Food Inspector is not justified must

Crl.R.P. No.843 of 2001 -: 5 :-

fall to the ground.

10. Thirdly, a contention is raised that the petitioner was

not present in the hotel when the sample was drawn. According

to him, late on that evening the petitioner was asked to go over

to the office of P.W.1 – the Food Inspector, and there the

signatures of the petitioner were obtained in the relevant

documents. On the fact of this, the contention is uninspiring as

there is no semblance of even a suggestion as to why the Food

Inspector should make such totally false allegations against the

petitioner herein. It is significant to note that during cross-

examination of the Food Inspector, no suggestion has even made

against him as to why he should resort to such tactics of falsely

implicating the petitioner herein.

11. It is contended fourthly that there has been infraction

of the stipulations of Sec.10(7) of the PFA Act. A witness was

admittedly called by the Food Inspector as a witness and Ext.P4

mahazar prepared by the Food Inspector bears the signature of

that person. It is the case of the petitioner that such person is an

employee of the shop. So much is admitted by the petitioner.

According to the Food Inspector, he was present in the shop. It

is hence not a case where Sec.10(7) of the PFA Act has not been

complied with. I extract below Sec.10(7) of the PFA Act:

Crl.R.P. No.843 of 2001 -: 6 :-

“10. Powers of Food Inspectors.—

x x x x x x x

(7) Where the Food Inspector takes

any action under clause (a) of sub-section

(1), sub-section (2), sub-section (4) or sub-

section (6), he shall call one or more

persons to be present at the time when

such action is taken and take his or their

signatures.”

12. The obligation is only to call one or more persons to be

present at the time when the action is taken by the Food

Inspector and take his signature. In the instant case, a person

who is claimed to be an employee of the very shop has been

called as a witness and he has attested the mahazar as a witness.

It is the case of the petitioner that he is the employee of the

shop. There is no scintilla of material to show that the said

witness one Gopalakrishnan Nair also has any animus against

the petitioner or there is any collusion between the said

Gopalakrishnan Nair and the Food Inspector/P.W.1.

13. The learned counsel contends that even if there be no

infraction of the provisions of Sec.10(7) of the PFA Act, it may be

noted that the said Gopalakrishnan Nair has not been cited as a

witness even in the complaint. This, counsel contends, is

Crl.R.P. No.843 of 2001 -: 7 :-

suspicious. According to the petitioner, the petitioner was not

present at the scene when the sample was drawn. Such sample

was drawn when Gopalakrishnan Nair was available in the

counter of the shop, he being an employee. Here again, it is

crucial to note that there is no semblance of a suggestion that

P.W.1 has succumbed to the influence of the said Goapalrishnan

Nair and has falsely implicated the petitioner for any reason.

The convenient version advanced that the petitioner was obliged

to subscribe his signatures to all the documents long later in the

evening when he was called to the office of the Food Inspector.

to say the least, has no legs to stand on.

14. The learned counsel contends that under the relevant

Rules the Food Inspector is bound to forward the articles to the

Local (Health) Authority immediately. But in the instant case,

though the sampling commenced at about 11.30 a.m. only, the

samples have been handed over to the Local (Health) Authority

only on the next day. The learned counsel contends that this

must also arouse suspicion in the mind of the court against the

version of P.W.1 in the absence of any evidence to corroborate

such version.

15. I must say that there is not an iota of reasonable doubt

aroused in my mind against the acceptability of the oral evidence

Crl.R.P. No.843 of 2001 -: 8 :-

of P.W.1 which is eminently supported by all the

contemporaneous documents that have been prepared at the

time of the seizure. The mere fact that the Food Inspector could

not on the same day hand over the article to the Local (Health)

Authority and despatched the same to the Public Analyst is,

according to me, too insufficient an indication to doubt the

version and veracity of the evidence of P.W.1. It is conceded that

there is literal compliance with the rule which mandates that

the sample must be forwarded to the LHA/PA expeditiously – not

later than the next day.

16. The learned counsel for the petitioner fifthly contends

that the Food Inspector must have made enquiries before he

drew sample of the article in question. According to the learned

counsel, it must have been enquired whether that sample was

offered for sale as such or whether it was kept there for

preparation of any other article of food. I have already adverted

to this while considering the plea raised on the basis of Sec.

10(2) of the PFA Act. Whether the article was intended for sale

as such food or not, the sample of a non-primary food can be

drawn by the Food Inspector under Sec.10(2). In these

circumstances, the contention that the Food Inspector must have

embarked on a detailed enquiry as to whether the article (curd)

Crl.R.P. No.843 of 2001 -: 9 :-

was intended for sale as curd or was kept only for preparation of

article of food for sale subsequently is of no relevance at all. In

fact the evidence of P.W.1 and the contemporaneous documents

prepared by him show that he was satisfied that the sample of

curd taken was offered for sale as curd in different cups to be

served to the customers.

17. The learned counsel for the petitioner sixthly contends

that Rules 14, 17 and 18 of the Prevention of Food Adulteration

Rules, 1955 have been violated.

18. I shall first deal with the alleged violation of Rule 14.

The samples are to be taken in clear and dry bottles or jars or

other suitable containers. It is by now trite that this obligation

to take samples in clean and dry bottles will include the

obligation to use clean and dry containers and spoons before the

sample is transferred to the sample bottles. We have the

evidence of the Food Inspector who asserted that the sample was

initially taken in a clean and dry vessel before it was mixed up

and transferred to the three sample bottles. The learned counsel

argues that a Peon who had so made the vessel clean and dry has

not been examined. The Food Inspector/P.W.1 has stated clearly

that the container was not made clean and dry at the scene and

it was brought in a clean and dry condition by him. In these

Crl.R.P. No.843 of 2001 -: 10 :-

circumstances, the plea of alleged infraction of Rule 14 of the

PFA Rules does not at all carry conviction. The challenge on that

ground must fail.

19. The learned counsel contends that Rules 17 and 18

have been violated. What is the alleged violation? The Food

Inspector had stated that the sample bottles were forwarded

along with the copies of Form VII memorandum. He further

stated that the specimen impression were forwarded separately.

The Food Inspector’s specific evidence on this aspect – he proved

a copy of Form VII memorandum also, in his oral evidence

remains virtually unchallenged. Both the Public Analyst and the

Director of the Central Food Laboratory in Exts.P11 and P12

admitted the receipt of the sample as also the receipt of the

specimen impression of the seal separately. The contention of

the learned counsel is that the report of the Public Analyst and

the Director of the Central Food Laboratory do not show that the

samples were received along with the requisition in Form VII

memorandum. Inasmuch as the Food Inspector had tendered

specific unchallenged evidence that the samples were sent along

with Form VII memorandum to the Public Analyst, I find no merit

in this contention built on the premise that Exts.P11 and P12 do

not show that the requisition was received in Form VII

Crl.R.P. No.843 of 2001 -: 11 :-

memorandum. That contention must also hence fail.

20. The learned counsel seventhly contends that the

certificates – Exts.P11 and P12 do not show adequate data. To

be specific, the contention is that the nature of the tests

conducted have not been specified in such certificates/reports.

The method of analysis resorted to to ascertain the data

furnished is not given in Exts.P11 and P12. This, he contends, is

grievous in the light of the subsequent amendment to Secs.4 and

23(1-A)(hh). I find no merit in this contention at all. The law is

trite that the certificates/reports of the Public Analyst and the

Director of the Central Food Laboratory must give the relevant

data and not merely their conclusion. In the instant case, all

relevant parameters are furnished, though the scientific

tests/analysis employing which the data was ascertained are not

furnished in Exts.P11 and P12. This, according to me, cannot in

any way affect the validity and acceptability of such scientific

report. It is crucial to note that the Public Analyst/the Director

of the Central Food Laboratory were not called to the witness

stand invoking the option available to the petitioner under

Sec.13 of the PFA Act. No other contentions are raised. I am,

in these circumstances, satisfied that the verdict of guilty and

conviction do not warrant any interference.

Crl.R.P. No.843 of 2001 -: 12 :-

21. The sentence imposed is the minimum permissible

under law and the same does not also warrant any interference.

22. In the result:

(a) This revision petition is dismissed.

(b) The petitioner shall have time till 31/7/09 to appear

before the learned Magistrate to undergo the impugned

sentence. He shall appear and his sureties shall produce him

before court on that date. Till then, the impugned sentence

shall not be executed.

(R. BASANT, JUDGE)

Nan/

Crl.R.P. No.843 of 2001 -: 13 :-

Crl.R.P. No.843 of 2001 -: 14 :-

R. BASANT, J.

————————————————-

Crl.R.P. No. 843 of 2001

————————————————-
Dated this the 23rd day of June, 2009

ORDER