STATE OF KERALA Vs. V P ENADEEN

JUDGEMENT

(1.) The prosecution in this case, for an offence under S.16(1)(a)(i) read with S.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-s.(1) of S.20 of the Act. That sub-section, so far as is material, runs thus:

(2.) The charge against the accused in this case was that he had "sold" gingelly oil which was adulterated to the complainant, PW. 1. the learned magistrate who tried the case found that the accused had done so and was therefore guilty of the offence with which he was charged. But following the decision of a single judge of this Court in Criminal Appeal No. 63 of 1969, the magistrate held that the complainant's appointment as Food Inspector had not been properly proved and that therefore he was not satisfied that the complainant was a person duly authorised under S.20 of the Act to institute the prosecution. (He was apparently prepared to take judicial notice of the authorisation of all Food Inspectors to institute prosecutions for offences under; the Act whether under clause (1) of S.57 of the Evidence Act as a law in force, or, as was held in Abdulla Haji v. Food Inspector, 1967 KLT 577 , as constituting a function of a Food Inspector and therefore falling within clause (7) of that section, a Food Inspector being undoubtedly a person filling a public office, we do not know. However, that is not a question that was raised either before him or before us, and we do not think it necessary to say anything more about that than that it seems to us that that was a matter of which the learned magistrate was entitled to take judicial notice.) In this view of the matter, namely, that the complainant had not proved that he was a Food Inspector and therefore had not shown that he was covered by the notification authorising Food Inspectors to institute prosecutions, the learned magistrate acquitted the accused. Against that acquittal this appeal has been brought under sub-s.(1) of S.417 of the Criminal Procedure Code, and, in the view that there are conflicting decisions of this Court regarding the question involved, the appeal has been referred by the single judge who first heard it to a division bench, and, in turn, by the division bench to a full bench.

(3.) 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 S.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, we should think that S.417 of the Criminal Procedure Code is attracted. The question is, however, only academic since, even if S.417 is not attracted because there is no acquittal S.439 would be, and, ex hypothesis, the bar in sub-s.(4) thereof against the conversion of a finding of acquittal into one of conviction would not apply.