FOOD INSPECTOR Vs. A G SUVARNA

JUDGEMENT

(1.) The Food Inspector of the Corporation of the City of Mangalore, Dakshina Kannada, has filed this appeal on special leave under S. 378(1) & (4) of the Cr.P.C. questioning the legality and correctness of the judgement and order of acquittal dated 18.2.1983 passed by the II Additional Chief Judicial Magistrate, Mangalore, in C.C.No. 22/1982, on his file, acquitting the respondent-accused of the charge of the offence of food adulteration punishable under Ss.7 R/W 16(1)(a) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act, levelled against him.

(2.) The accused A.G. Suvarna is alleged to be a proprietor of the shop named and styled as M/s Shakthi Cream Parlour, manufacturing and selling ice cream for human consumption, situated at Jeppu Market, in Mangalore City. On 31.8.1981, at about 12 noon, according to the prosecution, the Food Inspector (PW-1) visited the said shop of the accused and purchased nine cups (900 Grams) of mango ice cream for analysis and having paid its cost of Rs. 10-80 ps. to the accused, obtained a receipt as per Ex.P-2 and in the presence of the accused and panch witness Narayana PW-2 sampled the ice cream so purchased as per the procedure prescribed and after adding 24 drops of formulin for each of the three sample packets as preservative, he packed and sealed the same under mahazer Ex.P-4 and issued notice in Form VI as per Ex.P-3 to the accused as provided under S. 10 & 11 of the Act. He, thereafter, sent one of the three sample packets along with memorandum in Form VIII containing speciman seals as per Ex.P-5 to the public analyst, Bangalore, through railway parcel and he also sent the specimen seal separately along with a copy of the memorandum of the seal by remaining two sample packets along with a copy of the memorandum of specimen seals to the Local Health Authority. On receipt of the report from the Public Analyst as Per Ex.P-7 stating that the sample was adulterated, he placed all the relevant papers before the District Health Officer and having obtained sanction for prosecution as per Ex. P- 9, on 8-2-1982, filed a complaint against the accused. On the same day, the Local Health Officer sent a copy of the report Ex. P-7 of the Public Analyst with a covering letter Ex. P-11 to the accused intimating him the result of the Public Analyst and to make an application within ten days before the Chief Judicial Magistrate to get analysed the sample packed, kept in his custody, by the Director General, Food Laboratory at Pune, if he so desired. Although the letter Ex. P-11 was delivered on him on 19- 2-1982 (vide Ex P-12-postal acknowledgement), he, it appears, did not avail of that option given to him. The learned Chief Judicial Magistrate recorded the evidence of the complainant (Food Inspector) and the pancha as PWs-1 and 2 respectively and on the close of the prosecution evidence of the also examined and recorded the statement of the accused as provided under Sec. 313 Cr.P.C. Although the accused admitted his signature on the papers affixed on the packets of sample and of his having also received the copy of the report of the Public Analyst with covering letter Ex. P-11 and the Postal acknowledgement Ex. P-12, but denied either he was proprietor of the shop or he was selling ice cream or he was present in the shop on 31.8.1981. He also denied PW-1 having purchased ice cream from him. The learned Chief Judicial Magistrate, however, relying upon the evidence of PW-1 the Food Inspector partly corroborated by the evidence of PW-2, held that the accused was the proprietor of the shop in question and PW-1 did visit the shop on 31-8-1981 and purchased the ice cream for analysis. He also noticed that the Public Analyst had in his report stated that the sample contained 32.84% solid, 3.8% milk fat and 4.61% proteins and the total solids and milk fat being less than the prescribed standard, the sample was adulterated, but, he held that not only the evidence of PW-1 was silent as regards the strength of formalin that was added to the sample but there was no proof regarding the compliance of Rule 7 by comparing the seals on the container and the outer-cover with a specimen impression received separatly and as such it cannot be said the sample of the ice cream drawn from the shop of the accused was adulterated. In other words, he held, there was no satisfactory proof that what was sent to the public Analyst and examined by him was the ice cream drawn from the shop of the accused and relying upon the decision of this court in FOOD INSPECTOR, MANGALORE MUNICIPALITY v. K.S. RAPHAEL (1981 Crl. L.J. 1149). held that the non-compliance of Rule 7 vitiated the prosecution of the accused for the offence alleged against him and, accordingly, he having acquitted the accused, the Corporation of the City of Mangalore, through its Food Inspector, has filed this appeal questioning the legality and correctness of the order of acquittal as made by him.

(3.) Mr. B.V. Acharya, learned Counsel appearing for the Appellant, vehemently argued that the learned Chief Judicial Magistrate had at materially erred in acquitting the accused either because of the strength of the formalin added had not been stated or proof regarding the comparision of the seals on the container and the outer cover with the specimen impression received separately had not been adduced, particularly when the report (Ex. P-7) of the Public Analyst stated that the sample of the food was received properly sealed and fastened and the seal affixed on the container and outer cover of the sample tallied with the specimen impression, of the seal separately sent by the Food Inspector, as the report of the Public Analyst was admissible in evidence as provided under Sub-sec. (5) of S. 13 of the Act as substantive evidence without evidence aliundc. In support of his contention, he relied upon the decision reported in FOOD INSPECTOR v. GANGADHARAN 1983(2) Kar. L.J. 142. he also further maintained that even if what is stated in the report of the Public Analyst regarding the comparision is not admissible as substantive, evidence, the official acts regarding such comparision, as provided under Rule 7, may be presumed to have been regularly performed under S. 114 of the EVIDENCE ACT, 1872 and, therefore, the learned Chief Judicial Magistrate was not right in acquitting the accused.