STATE OF KARNATAKA Vs. DOLPHY ALBUQUERQUE

JUDGEMENT

(1.) The State has filed this appeal questioning the legality and correctness ef the order of acquittal dt. 12-11-1981 passed by the I Addl. Chief Judicial Magistrate, Mangalore in C.C. No. 161/1979, whereby he has acquitted the respondent-accused of the charge of the offence punishable under Ss. 7 and 16(1) (a) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act.

(2.) The prosecution case as made out at the trial and as summed up in the judgment of the Court below is as follows. The accused is a milk vendor selling milk at Thokkottu at Ullal in Mangalore Taluk. On 24-7-1979, at about 9 a.m. he was found carrying an aluminium can containing milk near St. Sebastin Church at Thokkottu. PW-1 K. V. Balakrishna, who was Senior Inspector, stopped him near the shop of one Narayan and inspected the can and found that the can was containing of about 10 litres of milk. When questioned, the accused also told him that it was milk of cows. Since PW-1 suspected the milk to be adulterated, he purchased 675 ml. of milk from the accused for the purpose of analysis as provided under S. 10 of the Act and paid him Rs. 1-50 towards the price of the milk purchased against a receipt passed as per Ex. P-4. Immediately he also served a notice in Form No. 6 as per Ex. P-5 on the accused informing him about the purpose of the purchase. Thereafter, he divided the milk so purchased into three equal parts under panchanama as per Ex. P-7 and affixed labels as per Ex. P-6 on the containers of sample bottles taken for analysis. He thereafter sent one of the bottles of sample to the public Analyst by railway parcel. He also sent the sample seals separately by registered post. He handed over the other two bottles of sample to the Local Health Authority, P.H.C., Ullal. On receipt of the report from the Public Analyst later on as per Ex. P-11 stating that the milk was adulterated one, he (PW-1), after obtaining the sanction from the District Health Officer as per Ex. P-12, filed a complaint against the accused on 29-9-1979 as per Ex. P-13. After such filing of the complaint the accused was also informed of the result of the analysis. But, the accused, it appears, did not choose to avail of the benefits of the provisions by request, ing the Court to send the other bottle containing sample milk to the Analyst. In other words, he did not challenge the correctness of the report. At the trial, the Senior Health Inspector was examined. Accepting the evidence of the Health Inspector and rejecting the various contentions raised on behalf of the respondent-accused, the learned Magistrate found that the accused had sold the milk and the milk so sold was adulterated one, because as found by the Public Analyst the sample milk analysed by him contained 1-70% of Milk fat, 5-19% of milk solids other than milk fat and 39-95% of added water and was much below the standard prescribed for cow's milk. But, he however accepting one of the contentions raised on behalf of the accused, namely that there was no compliance of the provisions contained in Rules 7 and 18 of the prevention of Food Adulteration Rules, held that the prosecution was vitiated and the accused could not be found guilty of the charge levelled against him. In doing so, he relied upon the decision of this Court in Food Inspec- tor, Mangalore Municipality v. K. S. Raphael (1). In that view, he having acquitted the respondent-accused, the State has filed this appeal.

(3.) Mr. Khuranga, learned High Court Government Pleader appearing for the State, strongly placed reliance on the provisions contained in sub-sec. (5) of S. 13 of the Act and argued that the proof regarding comparison of the sample seals is dispensed, since as provided under sub- sec. (5) of S. 13 any document purporting to be a report signed by a Public Analyst unless it has been superseded under sub-sec, (3), or any document purporting to be a certificate signed by the. Director of General Food Laboratory may be used as evidence of the facts stated there in any proceedings under this Act, or under S. 272 or 276 IPC (45 of 1860). But, it appears, there is not much force in this contention. This Court had the opportunity to deal with similar question of law as now raised by Mr. Khuranga in the case cited above and it has rightly been held that what is stated in the form about the comparison cannot be read as substantive evidence and it is obligatory, like any other fact, for the prosecution to prove the seal on the container and the outer cover compared with the specimen received separately and the conditions of the seals thereon. It cannot be disputed that such evidence has not been adduced in this case. Therefore, it appears the Court below has committed no error in acquitting the accused for non-compliance of the mandatory provisions of law as contained in Rules 7 and 18 of the Rules. In the result and for the reasons stated above the appeal fails and it is accordingly dismissed.