LATHEEF K A Vs. FOOD INSPECTOR

JUDGEMENT

(1.) Food Inspector, Edappally Circle after disclosing his identity and intention to take sample, purchased 450 gm. of coriander powder from shop No. VII/522 of Keezhmadu Panchayat run by the petitioner at about 12.30 p.m. on 26.11.1991. He prepared three samples and sent one sample to the Public Analyst and produced the remaining samples to the Local Health Authority. Ext. P-3 report was received from the Public Analyst stating that coriander powder is adulterated as sample contained not less than 20% of wheat powder. By Ext. P-4 Registered notice dated 17.2.1992, petitioner was served with copy of Ext. P-3 report and also made him aware of his rights to apply under Section 13(2) of P.F.A. Act within ten days of receipt copy of the report. It was received by the petitioner under-Ext. P-5 on 19.2,1992. Though petitioner filed Crl. M.P. 1145/1992, under Section 13(2) of Prevention of Food Adulteration Act to send one of the remaining samples to the Central Food Laboratory, learned Magistrate dismissed the application on the ground that application was not filed within ten days of receipt of copy of the report of Public Analyst. Petitioner pleaded not guilty. Learned Magistrate on the evidence of P.Ws. 1 to 4 and Exts. P-1 to P-12 and D.W. 1 and Ext. D-1 on the side of the petitioner found him guilty of the offence under Section 2(ia)(a)(c), 7(i)(v) read with Section 16(1)(a) (ii) of P.F.A. Act and Rules 5 and 50 of P.F.A.Rules. He was sentenced to rigorous imprisonment for six months and fine of Rs. 1,000 and in default, simple imprisonment for one month for the offence under Section 2 (ia)(a)(c), 7(i)(v) read with Section 16(1)(a) (ii) of P.F. A. Act. No separate sentence awarded for the offence under Rules 5 and 50 of P.F.A.Rules. Petitioner challenged the conviction and sentence before Additional Sessions Court, North Paravur in Crl. A.43/1997. Learned Additional Sessions Judge on reappreciation of the evidence confirmed the conviction and sentence and dismissed the Appeal. It is challenged in this Revision.

(2.) Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard.

(3.) Argument of the Learned Counsel appearing for the petitioner is that serious prejudice was caused to the petitioner by denying an opportunity to get the sample examined by the Central Food Laboratory. Relying on the decision of the Division Bench in Food Inspector v. Karingarappully Co- operative M.S.Society Ltd., 1986 KerLT 174 and the unreported decision in Crl. R.P. No. 215/1996, learned Counsel would argue that though there was a delay of five days in filing the application under Section 13(2) of P.F.A. Act on receipt of copy of Ext. P-3 report, that is not a justifiable ground to deny the opportunity especially when petitioner has shown sufficient reason for the delay in his application filed before the learned Magistrate. It was argued that petitioner received the copy of Ext. P-3 report only on 19.2.1992 and on 5.3.1992 itself application was filed and delay of less than five days should not have been made a valid ground to deny the opportunity and when evidence of P. W.3 Public Analyst and Ext. P-3 report of Public Analysis does not disclose that there was a proper chemical analysis, conviction denying the opportunity to get the sample examined by Central Food Laboratory is illegal. Learned Counsel would argue that though the petitioner was convicted for not having a license under the P.F.A. Rules, no sentence was awarded for the offence under R.50 of P.F.A. Rules and when the non awarding of the sentence was not challenged by the prosecution, in the Revision filed by the accused, sentence cannot be awarded for that offence and therefore, conviction is to be set aside.