{"id":218795,"date":"2009-06-23T00:00:00","date_gmt":"2009-06-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-a-anil-vs-food-inspector-on-23-june-2009"},"modified":"2017-11-24T23:48:42","modified_gmt":"2017-11-24T18:18:42","slug":"p-a-anil-vs-food-inspector-on-23-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-a-anil-vs-food-inspector-on-23-june-2009","title":{"rendered":"P.A. Anil vs Food Inspector on 23 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
P.A. Anil vs Food Inspector on 23 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 843 of 2001()\n\n\n\n1. P.A. ANIL\n                      ...  Petitioner\n\n                        Vs\n\n1. FOOD INSPECTOR\n                       ...       Respondent\n\n                For Petitioner  :SRI.SANTHOSH SUBRAMANIAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice R.BASANT\n\n Dated :23\/06\/2009\n\n O R D E R\n                          R. BASANT, J.\n           -------------------------------------------------\n                  Crl.R.P. No. 843 of 2001\n           -------------------------------------------------\n          Dated this the 23rd day of June, 2009\n\n                              ORDER\n<\/pre>\n
     The verdict of guilty, conviction and sentence in a<\/p>\n
prosecution    under Sec.16        of the     Prevention     of Food<\/p>\n
Adulteration Act, 1954 (for short `the Act’) is assailed in this<\/p>\n
revision petition by the accused.\n<\/p>\n
     2.  The    crux of the allegations against the petitioner<\/p>\n
herein is that he had sold to the Food Inspector for analysis<\/p>\n
adulterated curd when the Food Inspector inspected the<\/p>\n
premises of a non-vegetarian tea shop in which the second<\/p>\n
accused – the mother of the petitioner, was the alleged<\/p>\n
licensee.    The 2nd accused has been found not guilty and<\/p>\n
acquitted.\n<\/p>\n
     3. The prosecution examined P.Ws.1 and 2 and proved<\/p>\n
Crl.R.P. No.843 of 2001         -: 2 :-<\/span><\/p>\n
Exts.P1to P13. The accused did not adduce any defence<\/p>\n
evidence.\n<\/p>\n
     4.   The   courts     below   concurrently   found     that the<\/p>\n
prosecution has succeeded in establishing all the ingredients of<\/p>\n
the offence alleged against the petitioner.       Accordingly, they<\/p>\n
proceeded to pass the impugned concurrent judgments.<\/p>\n
     5.   The learned counsel for the petitioner and the learned<\/p>\n
Public Prosecutor have advanced their arguments. The learned<\/p>\n
counsel for the petitioner assails the impugned judgments on<\/p>\n
various grounds.\n<\/p>\n
     6. First of all it is contended that the premises from where<\/p>\n
the sample was drawn is a non-vegetarian tea shop and the<\/p>\n
sample of curd allegedly purchased from the premises was not<\/p>\n
kept or offered for sale as curd.          I find no merit in this<\/p>\n
contention.   On facts the conclusion appears to be inevitable<\/p>\n
that curd was offered for sale as curd.        In different cups the<\/p>\n
curd were kept for sale.       The Food Inspector found that the<\/p>\n
same was kept for sale as curd.        The plea that it is improbable<\/p>\n
that curd would be served as such in a non-vegetarian restaurant<\/p>\n
is not reasonable at all. Even assuming that the sample was not<\/p>\n
kept for sale as curd the contention does not appear to be<\/p>\n
acceptable in law.\n<\/p>\n
Crl.R.P. No.843 of 2001        -: 3 :-<\/span><\/p>\n
     7. The relevant statutory stipulations appear in Sec.10(2)<\/p>\n
of the PFA Act while dealing with the powers of the Food<\/p>\n
Inspector to draw sample.     I extract Sec.10(2) of the PFA Act<\/p>\n
below:\n<\/p>\n
                “10. Powers of Food Inspectors.—<\/p>\n<\/blockquote>\n
                           x x x x x x x<\/p>\n
                (2) Any Food Inspector may enter and<\/p>\n
          inspect any place where any article of food<\/p>\n
          is manufactured, or stored for sale, or<\/p>\n
          stored for the manufacture of any other<\/p>\n
          article of food    for sale, or exposed or<\/p>\n
          exhibited for sale or where any adulterant<\/p>\n
          is manufactured or kept, and take samples<\/p>\n
          of such article of food adulterant for<\/p>\n
          analysis.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                Provided that no sample of any article<\/p>\n
          of food, being primary food, shall be taken<\/p>\n
          under this sub-section if it is not intended<\/p>\n
          for sale as such food.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
The body of Sec.10(2) of the PFA Act permits the Food Inspector<\/p>\n
to draw samples of all articles of food even when they are not<\/p>\n
kept for sale as such and are kept there for the purpose of<\/p>\n
manufacture of food for subsequent sale.      The law recognises<\/p>\n
only one exception. If such article is an article of primary food,<\/p>\n
Crl.R.P. No.843 of 2001          -: 4 :-<\/span><\/p>\n
the Food Inspector is proscribed from taking the sample of<\/p>\n
primary food unless the same is intended for sale as such food.<\/p>\n
In the instant case, the case of the prosecution is very clear.<\/p>\n
Curd was kept in the premises for sale as curd. Even assuming<\/p>\n
that the curd was not kept for sale as curd, the proviso to Sec.10<\/p>\n
(2) has no application and the course adopted by the Food<\/p>\n
Inspector of drawing sample of curd must be held to be<\/p>\n
absolutely justified.\n<\/p>\n
      8.  The learned counsel for the petitioner contends that it<\/p>\n
is not the case of the petitioner that what is taken as sample was<\/p>\n
curd.   Though he did not specify what the article was, the<\/p>\n
learned counsel contends that what was taken as sample was an<\/p>\n
article which was kept there for the purpose of preparation of<\/p>\n
salad etc., and the Food Inspector erred grossly in reckoning the<\/p>\n
sample as a sample of curd prepared from cow’s milk.<\/p>\n
      9. I find no merit in this contention. Form VI notice issued<\/p>\n
to the petitioner marked as Ext.P2 as also the voucher for the<\/p>\n
price of the article issued to the petitioner by the Food Inspector<\/p>\n
Ext.P3 do both clearly show that what was purchased was curd.<\/p>\n
In these circumstances,      the laborious contention urged that<\/p>\n
what was sampled\/purchased was not curd and the description<\/p>\n
of the article as curd by the Food Inspector is not justified must<\/p>\n
Crl.R.P. No.843 of 2001         -: 5 :-<\/span><\/p>\n
fall to the ground.\n<\/p>\n
      10. Thirdly, a contention is raised that the petitioner was<\/p>\n
not present in the hotel when the sample was drawn. According<\/p>\n
to him, late on that evening the petitioner was asked to go over<\/p>\n
to the office of P.W.1 – the Food Inspector, and there the<\/p>\n
signatures of the petitioner were obtained in the relevant<\/p>\n
documents. On the fact of this, the contention is uninspiring as<\/p>\n
there is no semblance of even a suggestion as to why the Food<\/p>\n
Inspector should make such totally false allegations against the<\/p>\n
petitioner herein.    It is significant to note that during cross-<\/p>\n
examination of the Food Inspector, no suggestion has even made<\/p>\n
against him as to why he should resort to such tactics of falsely<\/p>\n
implicating the petitioner herein.\n<\/p>\n
      11. It is contended fourthly that there has been infraction<\/p>\n
of the stipulations of Sec.10(7) of the PFA Act. A witness was<\/p>\n
admittedly called by the Food Inspector as a witness and Ext.P4<\/p>\n
mahazar prepared by the Food Inspector bears the signature of<\/p>\n
that person. It is the case of the petitioner that such person is an<\/p>\n
employee of the shop. So much is admitted by the petitioner.<\/p>\n
According to the Food Inspector, he was present in the shop. It<\/p>\n
is hence not a case where Sec.10(7) of the PFA Act has not been<\/p>\n
complied with. I extract below Sec.10(7) of the PFA Act:<\/p>\n
Crl.R.P. No.843 of 2001         -: 6 :-<\/span><\/p>\n
                 “10. Powers of Food Inspectors.—<\/p>\n<\/blockquote>\n
                            x x x x x x x<\/p>\n
                 (7) Where the Food Inspector takes<\/p>\n
           any action under clause (a) of sub-section<\/p>\n
           (1), sub-section (2), sub-section (4) or sub-<\/p>\n
           section (6), he shall call one or more<\/p>\n
           persons to be present at the time when<\/p>\n
           such action is taken and take his or their<\/p>\n
           signatures.”<\/p><\/blockquote>\n
      12. The obligation is only to call one or more persons to be<\/p>\n
present at the time when the action is taken by the Food<\/p>\n
Inspector and take his signature.      In the instant case, a person<\/p>\n
who is claimed to be an employee of the very shop has been<\/p>\n
called as a witness and he has attested the mahazar as a witness.<\/p>\n
It is the case of the petitioner that he is the employee of the<\/p>\n
shop. There is no scintilla of material to show that the said<\/p>\n
witness one Gopalakrishnan Nair also has any animus against<\/p>\n
the petitioner or there is any collusion between the said<\/p>\n
Gopalakrishnan Nair and the Food Inspector\/P.W.1.<\/p>\n
      13. The learned counsel contends that even if there be no<\/p>\n
infraction of the provisions of Sec.10(7) of the PFA Act, it may be<\/p>\n
noted that the said Gopalakrishnan Nair has not been cited as a<\/p>\n
witness even in the complaint.          This, counsel contends, is<\/p>\n
Crl.R.P. No.843 of 2001          -: 7 :-<\/span><\/p>\n
suspicious.   According to the petitioner, the petitioner was not<\/p>\n
present at the scene when the sample was drawn. Such sample<\/p>\n
was drawn when Gopalakrishnan Nair was available in the<\/p>\n
counter of the shop, he being an employee.       Here again, it is<\/p>\n
crucial to note that there is no semblance of a suggestion that<\/p>\n
P.W.1 has succumbed to the influence of the said Goapalrishnan<\/p>\n
Nair and has falsely implicated the petitioner for any reason.<\/p>\n
The convenient version advanced that the petitioner was obliged<\/p>\n
to subscribe his signatures to all the documents long later in the<\/p>\n
evening when he was called to the office of the Food Inspector.<\/p>\n
to say the least, has no legs to stand on.\n<\/p>\n
     14. The learned counsel contends that under the relevant<\/p>\n
Rules the Food Inspector is bound to forward the articles to the<\/p>\n
Local (Health) Authority immediately.     But in the instant case,<\/p>\n
though the sampling commenced at about 11.30 a.m. only, the<\/p>\n
samples have been handed over to the Local (Health) Authority<\/p>\n
only on the next day.     The learned counsel contends that this<\/p>\n
must also arouse suspicion in the mind of the court against the<\/p>\n
version of P.W.1 in the absence of any evidence to corroborate<\/p>\n
such version.\n<\/p>\n
     15. I must say that there is not an iota of reasonable doubt<\/p>\n
aroused in my mind against the acceptability of the oral evidence<\/p>\n
Crl.R.P. No.843 of 2001        -: 8 :-<\/span><\/p>\n
of  P.W.1    which    is  eminently    supported     by   all the<\/p>\n
contemporaneous documents that have been prepared at the<\/p>\n
time of the seizure. The mere fact that the Food Inspector could<\/p>\n
not on the same day hand over the article to the Local (Health)<\/p>\n
Authority and despatched the same to the Public Analyst is,<\/p>\n
according to me, too insufficient an indication to doubt the<\/p>\n
version and veracity of the evidence of P.W.1. It is conceded that<\/p>\n
there is literal compliance with the rule which mandates that<\/p>\n
the sample must be forwarded to the LHA\/PA expeditiously – not<\/p>\n
later than the next day.\n<\/p>\n
      16. The learned counsel for the petitioner fifthly contends<\/p>\n
that the Food Inspector must have made enquiries before he<\/p>\n
drew sample of the article in question. According to the learned<\/p>\n
counsel, it must have been enquired whether that sample was<\/p>\n
offered for sale as such or whether it was kept there for<\/p>\n
preparation of any other article of food. I have already adverted<\/p>\n
to this while considering the plea raised on the basis of Sec.<\/p>\n
10(2) of the PFA Act. Whether the article was intended for sale<\/p>\n
as such food or not, the sample of a non-primary food can be<\/p>\n
drawn by the Food Inspector under Sec.10(2).             In these<\/p>\n
circumstances, the contention that the Food Inspector must have<\/p>\n
embarked on a detailed enquiry as to whether the article (curd)<\/p>\n
Crl.R.P. No.843 of 2001         -: 9 :-<\/span><\/p>\n
was intended for sale as curd or was kept only for preparation of<\/p>\n
article of food for sale subsequently is of no relevance at all. In<\/p>\n
fact the evidence of P.W.1 and the contemporaneous documents<\/p>\n
prepared by him show that he was satisfied that the sample of<\/p>\n
curd taken was offered for sale as curd in different cups to be<\/p>\n
served to the customers.\n<\/p>\n
      17. The learned counsel for the petitioner sixthly contends<\/p>\n
that Rules 14, 17 and 18 of the Prevention of Food Adulteration<\/p>\n
Rules, 1955 have been violated.\n<\/p>\n
      18. I shall first deal with the alleged violation of Rule 14.<\/p>\n
The samples are to be taken in clear and dry bottles or jars or<\/p>\n
other suitable containers. It is by now trite that this obligation<\/p>\n
to take samples in clean and dry bottles will include the<\/p>\n
obligation to use clean and dry containers and spoons before the<\/p>\n
sample is transferred to the       sample bottles.   We have the<\/p>\n
evidence of the Food Inspector who asserted that the sample was<\/p>\n
initially taken in a clean and dry vessel before it was mixed up<\/p>\n
and transferred to the three sample bottles. The learned counsel<\/p>\n
argues that a Peon who had so made the vessel clean and dry has<\/p>\n
not been examined. The Food Inspector\/P.W.1 has stated clearly<\/p>\n
that the container was not made clean and dry at the scene and<\/p>\n
it was brought in a clean and dry condition by him.        In these<\/p>\n
Crl.R.P. No.843 of 2001        -: 10 :-<\/span><\/p>\n
circumstances, the plea of alleged infraction of Rule 14 of the<\/p>\n
PFA Rules does not at all carry conviction. The challenge on that<\/p>\n
ground must fail.\n<\/p>\n
      19. The learned counsel contends that Rules 17 and 18<\/p>\n
have been violated.    What is the alleged violation?   The Food<\/p>\n
Inspector had stated that the sample bottles were forwarded<\/p>\n
along with the copies of Form VII memorandum.         He further<\/p>\n
stated that the specimen impression were forwarded separately.<\/p>\n
The Food Inspector’s specific evidence on this aspect – he proved<\/p>\n
a copy of Form VII memorandum also, in his oral evidence<\/p>\n
remains virtually unchallenged. Both the Public Analyst and the<\/p>\n
Director of the Central Food Laboratory in Exts.P11 and P12<\/p>\n
admitted the receipt of the sample as also the receipt of the<\/p>\n
specimen impression of the seal separately. The contention of<\/p>\n
the learned counsel is that the report of the Public Analyst and<\/p>\n
the Director of the Central Food Laboratory do not show that the<\/p>\n
samples were received along with the requisition in Form VII<\/p>\n
memorandum.      Inasmuch as the Food Inspector had tendered<\/p>\n
specific unchallenged evidence that the samples were sent along<\/p>\n
with Form VII memorandum to the Public Analyst, I find no merit<\/p>\n
in this contention built on the premise that Exts.P11 and P12 do<\/p>\n
not show that the requisition was received in Form VII<\/p>\n
Crl.R.P. No.843 of 2001        -: 11 :-<\/span><\/p>\n
memorandum. That contention must also hence fail.<\/p>\n
      20.   The learned counsel seventhly contends that the<\/p>\n
certificates – Exts.P11 and P12 do not show adequate data.     To<\/p>\n
be specific, the contention is that the nature of the tests<\/p>\n
conducted have not been specified in such certificates\/reports.<\/p>\n
The method of analysis resorted to         to ascertain the data<\/p>\n
furnished is not given in Exts.P11 and P12. This, he contends, is<\/p>\n
grievous in the light of the subsequent amendment to Secs.4 and<\/p>\n
23(1-A)(hh). I find no merit in this contention at all. The law is<\/p>\n
trite that the certificates\/reports of the Public Analyst and the<\/p>\n
Director of the Central Food Laboratory must give the relevant<\/p>\n
data and not merely their conclusion.      In the instant case, all<\/p>\n
relevant parameters are furnished, though the scientific<\/p>\n
tests\/analysis employing which the data was ascertained are not<\/p>\n
furnished in Exts.P11 and P12. This, according to me, cannot in<\/p>\n
any way affect the validity and acceptability of such scientific<\/p>\n
report. It is crucial to note that the Public Analyst\/the Director<\/p>\n
of the Central Food Laboratory were not called to the witness<\/p>\n
stand invoking the option available to the petitioner under<\/p>\n
Sec.13 of the PFA Act. No other contentions are raised. I am,<\/p>\n
in these circumstances, satisfied that the verdict of guilty and<\/p>\n
conviction do not warrant any interference.<\/p>\n
Crl.R.P. No.843 of 2001         -: 12 :-<\/span><\/p>\n
      21.  The sentence imposed is the minimum permissible<\/p>\n
under law and the same does not also warrant any interference.<\/p>\n
      22. In the result:\n<\/p>\n
     (a) This revision petition is dismissed.\n<\/p>\n
      (b) The petitioner shall have time till 31\/7\/09 to appear<\/p>\n
before the learned Magistrate to undergo the impugned<\/p>\n
sentence.    He shall appear and his sureties shall produce him<\/p>\n
before court on that date.      Till then, the impugned sentence<\/p>\n
shall not be executed.\n<\/p>\n<\/p>\n
                                         (R. BASANT, JUDGE)<\/p>\n
Nan\/<\/p>\n
Crl.R.P. No.843 of 2001 -: 13 :-<\/span><\/p>\n
Crl.R.P. No.843 of 2001         -: 14 :-<\/span><\/p>\n
                          R. BASANT, J.\n<\/p>\n
           ————————————————-\n<\/p>\n
                  Crl.R.P. No. 843 of 2001\n<\/p>\n
           ————————————————-
\n          Dated this the 23rd day of June, 2009<\/p>\n
                              ORDER<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-218795","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nP.A. 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