BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/03/2007 CORAM THE HONOURABLE MR. JUSTICE P. MURGESEN Criminal Appeal No.442 of 1997 State by Food Inspector Kulithalai Municipality, rep. By the Public Prosecutor, Madras .. Appellant Vs 1.Mani 2.Saroja .. Respondents accused Criminal Appeal filed under Section 378 of Cr.P.C. against the judgment and order of acquittal passed by the learned Judicial Magistrate No.2,Kulithalai in C.C.No.1017 of 94 dated 24.6.1996. !For Petitioner : Mr.Siva Iyyappan, Govt. Advocate (Crl.Side) ^For Respondent : Mr.B.Divakaran :JUDGMENT
The appeal is directed against the Judgment of the learned Judicial
Magistrate No.2, Kulithalai in C.C.No.1017 of 1994 dated 24.6.1996.
2.The case of the prosecution is briefly as follows:
P.W.1 is the Food Inspector of Kulithalai Municipality. On 11.6.1994 at
about 7.30 a.m., when he was standing near the Municipal Office to take samples
of food under the Food Adulteration Act, the first accused came in a
T.V.S.Mophed carrying beverages. P.W.1 questioned him, in the presence of one
witness Sarbhudheen. The first accused replied that he was coming from ‘Enjoy
Soda Factory’ and he brought the beverages for sale; on further enquiry, the
first accused also submitted that one Tmt.Saroja was the owner of that Soda
Factory. P.W.1 examined the beverages and took out one ‘orange colour’
beverage under the Food Adulteration Act for sending the same for Public
Analyst. P.W.1 also filled Form 6 in the presence of the witness and served it
on the first accused. Ex.A1 is Form-6. Then he purchased nine orange colour
beverage bottles at a cost of Rs.22.50/- each and obtained a receipt for the
same. He packed the food samples in three parcels and allotted Code No.611
series No.116 and pasted separate lables; he also sealed with arrack on four
corners of the lable and tide the same in a thick brown sheet and folded the
edges and pasted the same; he brought the sealed parcels to his Office and
prepared six copies of Form-7. Ex.P3 is Form-7. He affixed seal on each copy
and placed each one of the
sample with Form 7 and sealed it with code Number, Serial Number and intimated
the Local Health Officer under Ex.P4 to despatch the sample food parcels
through Railway Parcel Service and handed over two samples to the Local Health
Officer and obtained Acknowledgment-Ex.A5; He forwarded another copy of the
Railway Receipt to the Public Analyst, Ex.A6 is the receipt. He received the
Acknowledgment under Ex.P7. Then he sent a notice to the second accused through
the ‘Certificate of Posting’. Ex.P8 is the copy of the notice sent under
‘Certificate of Posting’. He received the Public Analyst Report-Ex.P9 and found
that sample food was adulterated. Then he filed the charge sheet under Ex.P10;
sent notice- Ex.P10 under Section 13(2) of the Food Adulteration Act to the
accused. Exs.P12 & 13 are the acknowledgment cards of the accused for receipt
of the above said notice. The second accused has not preferred any petition
before the Court for sending the sample to the Lab.
3.The prosecution in order to bring home the charges against the accused,
examined P.W.1 and filed Ex.P1 to P19.
4.On consideration of the entire evidence on record, the learned Judicial
Magistrate II, Kulithalai, acquitted the accused. As against the acquittal
order, the State has preferred the above appeal.
5.Point for Determination :
“Whether the prosecution has proved the case against the
accused?”
6.P.W.1 is the Food Inspector, Kulithalai Municipality. On 11.6.1994,
when he was standing near the Municipal Office for taking food samples under the
Food Adulteration Act, he saw the first accused coming in a T.V.S.Mophed
carrying beverages. P.W.1 questioned him, in the presence of one witness
Sarbhudheen. The first accused explained him that he was coming from ‘Enjoy
Soda Factory’ and he brought the beverages for sale. P.W.1 took samples from
the first accused and obtained receipt under Ex.A2 and he despatched the food
samples to the Food Analyst and received the report. According to him,
everything was done in accordance with law.
7.The learned trial Judge observed that the Food samples i.e. three
bottles of beverage out of nine bottles sent for chemical analyst is not
sufficient to fix the liability and held that the Food Inspector has not
followed the procedures contemplated under the Food Adulteration Act. Further,
the trial Court also concluded that even though the appellant has produced
various G.Os that he is entitled to take samples, he has not obtained any
sanction from the competent authority by following the procedures under the
above said Act.
8.At this juncture, it is just and proper to analyse the decision rendered
by the Hon’ble Supreme Court in CONSUMER ACTION GROUP Vs. CADBURY INDIA LTD.,
AND ANOTHER reported in (2000) 9 SCC 56. In that case, it was observed that
eventhough the sanction order of Director, Health Service filed along with the
complaint showing that the sanction was granted only to prosecute A1, it is seen
that no sanction was granted for prosecution of A2 and A3.
9.On a perusal of Ex.P11-Notice of the case onhand would show that the
Local Health Authority has not perused the relevant
P.MURGESEN J,
rpa
materials and has also not applied his mind. So, it is clear that the sanction
accorded was not proper. Hence, the trial Court has come to the conclusion
that there is no valid sanction.
9.Therefore, I find no reason to interfere with the order passed by the
learned trial Judge. Accordingly, the above Criminal Appeal is dismissed,
confirming the order of the learned Judicial Magistrate No.2,Kulithalai in
C.C.No.1017/94 dated 24.6.1996.
To
1.The Judicial Magistrate No.2,Kulithalai.
2.The Food Inspector, Kulithalai Municipality,
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.