STATE OF KERALA Vs. ARUNACHALAM REDDIAR

JUDGEMENT

(1.) This is an application by the State under Art.134 (1) (c) of the Constitution, that we certify as a fit case for appeal to the Supreme Court, the order of acquittal passed by this Court in Criminal Appeal No. 417 of 1958. The appeal arises out of a prosecution instituted under S.16 read with S.7 of the Prevention of Food Adulteration Act (Act XXXVII of 1954). The complainant in the case was the City Corporation of Trivandrum represented by the Corporation Food Inspector. The 1st accused is the owner of a shop and the 2nd accused is stated to have been conducting the sales in the shop for and on behalf of the 1st accused. The prosecution case is that on 30 7 1957 the Food Inspector of the Corporation went to the shop and purchased twelve ozs. of gingilly oil from the 2nd accused and sent a portion of it to the public analyst. It was found that the said gingilly oil contained a high percentage of groundnut oil and fatty acids. The accused were proceeded against under the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the First. Class Magistrate who tried the case convicted both the accused under Clause (1) (g) (ii) of S.16 and sentenced each of them to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 2000/- and in default of payment to undergo simple imprisonment for a further period of six months. On appeal the learned Sessions Judge found that the prosecution was vitiated by serious illegalities and therefore allowed the appeal. Against that order of acquittal the complainant filed an appeal to this Court after obtaining special leave under S.417 of the Criminal Procedure Code. This Court upheld the order of acquittal finding that the general authority conferred by the Commissioner of the Corporation on the Food Inspector to prosecute all persons who may be found to have committed offences under the Prevention of Food Adulteration Act could not bo accepted as a proper and valid sanction under S.20 of the Act and that in the absence of a valid sanction the prosecution launched by the Food Inspector could not be sustained. The court also held that certain irregularities and illegalities in the investigation and trial of this case had caused material prejudice to the accused. One such defect was that the direction under sub-s.(7) of S.10 of the Act that where the Food Inspector takes any action under Clause (a) of sub-s.(1), sub-s.(2), sub-s.(4) or sub-s.(6) he shall as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures, was not complied with in this case, though independent witnesses are available in that locality. Another was that the Food Inspector did not comply with the provisions of S.11 of the Act which directs that when a Food Inspector takes a sample of food for analysis, he shall give notice in writing then and there of his intention to have it so analysed, to the person from whom he has taken the sample. Here the sample was supplied by the 2nd accused but the only notice served on him was one addressed to the 1st accused. -Yet another irregularity was the clubbing of the charge for the actual commission of the offence with the one for enhanced punishment for a previous conviction.

(2.) In the application for certificate, the correctness of the findings on all the above points is challenged and it is alleged that the questions of law raised and decided by this Court in the appeal are of outstanding difficulty and importance and have given rise to conflict of opinion among the different High Courts of India.

(3.) Notice of the application was served on the accused and they strongly object to the grant of the certificate. Two preliminary objections were raised by Shri Malloor K. Govinda Pillai the learned counsel for the accused. He contended that the State has no locus standi to move the application as it was not a party to the appeal and that this Bench which is different from the one which disposed of the appeal is not competent to hear the application for the certificate. (The appeal was disposed of by a Bench consisting of one of us and His Lordship Sankaran, C. J., who has since then retired).