STATE OF KERALA Vs. V.P. ENADEEN

JUDGEMENT

(1.) THE prosecution in this case, for an offence under section 16 (1) (a) (i) read with section 7(1) of the Prevention of Food Adulteration Act 1954, (the Act for short) was instituted by a person who claimed that he was competent to do so under sub -section (1) of section 20 of the Act. The sub -section, so far as is material, runs thus:

(2.) WE might at the outset observe that, although the learned magistrate called it an acquittal, what he actually did was to discharge the accused from the case and not acquit him. If, as he thought, the complainant was not a person authorised to institute a prosecution under section 20 (1) of the Act, the magistrate had no jurisdiction to take cognizance of the case. He could no more acquit than he could convict. But, however that might be, since the learned magistrate purported to acquit the accused, he should think that section 417 of the Criminal Procedure Code is attracted. The question is, however, only academic since, even if section 417 is not attracted because there is no acquittal, section 439 would be, and, ex hypothesi, the bar in sub -section (4) thereof against the conversion of a finding of acquittal into one of conviction would not apply.

(3.) ASSUMING , however, that, in terms of the notification under section 20 (1) of the Act, what is to be proved is not so much that P.W.1 was filling the office of Food Inspector at the relevant time as that he had been appointed thereto under the Act, there was a copy of the notification appointing him as Food Inspector received in evidence in the case and marked Ex. P -6. It is true that this was neither an issue of the gazette in which the notification appeared nor a certified copy thereof - -under section 9 of the Act the appointment of a Food Inspector has to be by notification in the official gazette - -but only a copy certified to be a true copy by the complainant himself. No objection was taken when Ex. P -6 was received in evidence either on the ground that the conditions requisite for the reception of secondary evidence had not been made out, or on the ground that this particular type of secondary evidence was not permissible, and, that being so, we do not think that objection can now be taken to Ex. P -6 having been received in evidence. If Ex. P -6 was received in evidence as proof of the notification in the official gazette appointing the complainant as a Food Inspector, we should think that the fact that he was so appointed has been duly proved and that therefore the authority to institute a prosecution under the notification under section 20 (1) of the Act has been established.