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.
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Crl.R.P. No. 843 of 2001
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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.
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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
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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:
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“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
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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
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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
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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.
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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/
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R. BASANT, J.
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Crl.R.P. No. 843 of 2001
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Dated this the 23rd day of June, 2009
ORDER