Benny Thomas vs Food Inspector, Kochi & Anr

Food Inspector, Kochi and Anr. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a

learned Single Judge of the Kerala High Court dismissing the

Criminal Revision Petition which was filed questioning

correctness of the conviction for offence punishable under

Section 16(1)(a)(i) read with Section 7(1) and Section 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 (in short the

`Act') and also under Rule 5 read with Appendix B, Item

A.07.08 and Rule 50 of the Prevention of Food Adulteration

Rules, 1955 (in short the `Rules'). The appellant was

sentenced to undergo simple imprisonment for one year and

to pay a fine of Rs.2,000/- with default stipulation as recorded

by learned Judicial Magistrate, Ist Class, Kochi. The learned

IV Addl. Sessions Judge, Ernakulam in appeal modified the

sentence and reduced it to simple imprisonment for six

months and a fine of Rs.1,000/- with default stipulation.

3. Background facts in a nutshell are as follows:

On 22.5.2000 at about 4.00 p.m., the Food Inspector,

P.W.1 inspected the shop of the appellant by name "Bejoy

Fruits and Vegetables". He found four bottles of Sarbath

(synthetic syrup) each of 700 ml. capacity, which were kept for

sale. He bought one bottle of synthetic syrup, on paying

Rs.40/-, Ex.P.4 being the voucher for payment. He sampled it

according to the procedure. After analysis, he obtained

2 Ex.P.12 report, which showed that the sample did not conform

to the standards prescribed under the rules and, therefore,

was adulterated. Accordingly, he proceeded against the

appellant. Since accused abjured guilt, trial was held.

4. Four witnesses were examined and 21 documents were

marked on the side of the prosecution and three documents

were marked on the side of the defence. After appreciation of

the evidence, the appellant was found guilty, convicted and

sentenced accordingly. Appeal by appellant resulted only in

reduction of sentence. The revision petition did not bring any

relief.

5. Stand before the High Court was that articles purchased

by the Food Inspector (PW-1) were not kept for sale and as

such the same were not the food articles. It was further

submitted that there was no enquiry made by the Food

Inspector as to whether these articles were kept for sale. The

High Court did not accept the stand. Referring to the evidence

of PW-1, it noted that PW-1 had introduced himself as Food

3 Inspector and had expressed willingness to purchase 700 ml.

of `synthetic syrup (Sarbath)' which was kept for sale. He had

purchased it after giving Rs.40/-. The High Court noted that if

the articles were not kept for sale the question of selling it to

the Food Inspector does not arise. It found that the articles

purchased were for human consumable and were kept for sale

and on analysis did not conform to the requirement. It held

that there was no violation of Rules 17 and 18 of the Rules as

claimed. Noting that the minimum sentence has been

imposed, revision petition was dismissed.

6. Learned counsel for the appellant submitted that no

enquiry was conducted of the samples as to whether articles

were kept for sale. It was further submitted that the articles

were not meant for sale and, therefore, the said Rules have no

application.

7. Learned counsel for the respondent-State on the other

hand supported the impugned order. Admittedly, the sample

was collected by the Food Inspector after effecting purchase

4 and had given the receipt. As rightly noted by the High Court

the articles were intended for sale.

8. The complainant, Food Inspector, Cochin Circle has

given evidence as PW1. He has spoken about Sarbath, the

food article involved in this case from the shop of the accused

and also the various formalities done by him in sampling the

same. The fact that the sarbath was purchased from him is

not disputed by the accused. When he was questioned under

section 313 of the Code of Criminal Procedure, 1973 (in short

the `Cr.P.C') he conceded that he had sold sarbath to PW1.

Further the sale of sarbath to PW1 is proved by Ex. P4

voucher issued by the accused towards the purchase and

acceptance of its cost from PW1. He had also given Ex. P3

Form VI notice to the accused, the receipt of which has been

acknowledged by him as per Ex. P3 (a) endorsement and

signature. As PW1, the Food Inspector has stated that he had

disclosed to the accused the intention of the purchase of

sarbath from him, what is contended by the accused is that

the sarbath purchased from him was not intended for sale as

5 such. According to PW1, the purchased sarbath was sampled

by him at the spot as provided in the Rules, and one part of

the sample prepared by him was sent to the public analyst for

analysis and the remaining two parts of the sample were

forwarded to the Local (Health) Authority, and received the

result of the analysis of the sample from the public analyst,

through Local (Health) Authority. Ex. P12 is the report of the

Public Analyst, as per which the sample does not conform to

the standards prescribed for sarbath under the Rules and so

the sample is adulterated. On receipt of the intimation

regarding the launching of prosecution against him, the

accused filed a petition before the court below seeking to send

one part of the sample kept with the local (Health) Authority to

the Central Food Laboratory for analysis. Accordingly, one

part of the sample was called for from the Local (Health)

Authority and sent to Central Food Laboratory. Ex. P17 is the

report obtained from Central Food Laboratory, as per which

the sample does not conform the standard prescribed for

sarbath under the rules and is, therefore, adulterated. Thus

the prosecution has been able to establish that the sarbath

6 purchased from the accused by PW1 is adulterated.

9. One of the contentions of the appellant/accused is that

the Food Inspector had violated the mandatory provisions

contained in Rule 17 & 18 of the Rules and so he is eligible for

an acquittal. Rules 17 & 18 of Rules are as follows:

"17. Manner of dispatching containers of samples :-

The containers of the sample shall be dispatched in the following manner, namely:

a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means:

b) The sealed containers of the remaining two parts of the sample and two copies of the memorandum in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means:

(c) The sealed container of one of the remaining two parts of the sample and a copy of the memorandum in Form VII kept with the Local (Health) Authority shall within a period of 7 days be sent to the public analyst on requisition made by him to it by any suitable means:

7 Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form VII shall contain the following additional information, namely:

a) Grade

b) Agmark Label No. /Batch No.

c) Name of Packing station

18. Memorandum and impression of seal to be sent separately: A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day."

10. From the evidence of PW-1 it is clear that at one point of

time the sample was handed over to the public analyst on

23.5.2000 i.e. the succeeding day of taking the sample from

the shop of the accused. PW-1 also stated that other two parts

of the sample alongwith Form No.VII Memorandum and the

specimen impression of the seal used to seal the sample

bottles were handed over to the Local Health Authority by PW-

1 and copy of the information had been given to PW-2, the

Local Health Authority. PW-2 stated in his evidence that he

8 had received two parts of the sample alongwith Form VII and

the specimen impression of the seal used to seal the sample in

separate sealed cover. Therefore, as rightly held by the High

Court there was no violation of Rules 17 and 18 of the Rules.

11. The accused in his examination under Section 313 of the

Cr.P.C. admitted that he had sold the articles in question to

PW-1. The plea that the articles were not intended for sale

has no substance as noted above. The sentence imposed as

afore-noted is minimum and, therefore, the plea, that the

sentence is harsh, has no substance.

12. Looked at from any angle, the appeal is without merit,

deserves dismissal, which we direct.

..............................J. (Dr. ARIJIT PASAYAT)

.............................J. (P. SATHASIVAM) New Delhi, July 7, 2008

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