ALOTIUS WILSON Vs. FOOD INSPECTOR

JUDGEMENT

(1.) The revision petitioners against whom the Food Inspector, Mobile Vigilance Squad, Trivandrum laid a complaint in C.C. 392 of 1973 on the file of the Chief Judicial Magistrate, Ernakulam under S.7(1), 14, 16(1)(a)(i) and 17 of the Prevention of Food Adulteration Act (for short 'Act') were discharged by the learned Magistrate under S.245(1) of the Criminal Procedure Code. On revision in Crl R. P. No. 125 of 1977 filed by the complainant, the second Additional Sessions Judge, Ernakulam set aside the order of the learned Magistrate and directed further inquiry into the matter. This order is now challenged before me.

(2.) The Food Inspector laid a complaint against the four revision petitioners, who are alleged to he respectively the salesman. Manager and Managing Director of the 4th respondent company, alleging that on 30-7-1973 at about 3 p.m. the Food Inspector visited the Hotel Sea Lord, belonging to the 4th respondent and after satisfying all the legal requirements purchased 900 grams of ice cream from out of 100 k. g. of ice cream kept there for sale, sampled the same in accordance with the rules. One sample was sent to the Public Analyst for analysis and report of the Analyst showed that the sample did not conform to the standards prescribed for ice cream. After satisfying the other requirements of law, the complaint was laid. The complainant examined 4 witnesses and marked Exts. P1 to P7 series. It was contended for the defence that ice cream is a primary food and no offence is made out in view of S.2(ia)(m) proviso, as the possibility of water condensing inside the deep freezer and falling on the top layer of the ice cream cannot be ruled out and the Food Inspector has not stirred the entire, 100 kgs. before taking the sample. Learned Magistrate held that a prima facie case has not been established for the reason that the sample taken was not representative of the whole and because of the proviso to S.2(ia)(m). In revision, the learned Sessions Judge did not agree with this conclusion and directed a further enquiry.

(3.) There is evidence to show that the Food Inspector purchased 900 grams of ice cream taken cut of 100 kgs. of ice cream kept in a vessel inside the deep freezer. No witness has deposed that the entire mass of 100 kgs. was stirred before the sale was made. There was no suggestion made to any witness that whenever ice cream is sold the entire mass of ice cream contained in the vessel will be stirred. If that is the normal mode of serving or selling ice cream, the salesman should have done it. The act and the rules do not contemplate that in situations like this, the entire mass of ice cream or food article must be stirred well before any portion is sold as sample to the Food Inspector. There is also no justification for the view taken by the learned Magistrate that water vapour inside the deep freezer will condense and fall as water drops on the top layer of the ice cream. That such a phenomenon takes place is not borne out by any materials placed before the court. In any event, it is a matter which could certainly be guarded against by the hotel. Further, the learned Magistrate committed serious error in assuming that ice cream is a "primary food" contemplated in S.2(ia)(m) proviso Primary food is defined in S.2(xiia)) of the Act as any article of food being a product of agriculture or horticulture in its natural form. It is true that milk is one of the constituents of ice cream. But that will not make ice cream a product of horticulture or agriculture. The learned Magistrate was in error in assuming that ice cream is primary food. The view taken by the learned Magistrate that the sample should be representative of the entire quantity also does not appear to be correct - vide State of Kerala v. Alasserry Mohd. ( AIR 1978 SC 933 ). I am in agreement with the view taken by the learned Sessions Judge that the order of discharge is not sustainable on the ground stated by the Magistrate.