SIYANANDAN Vs. FOOD INSPECTOR

JUDGEMENT

(1.) The revision petitioner was convicted by the Judicial First Class Magistrate, Neyyattinkara in C.C. No. 197 of 1978 under S.7(1) and 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter called the 'Act') and the Prevention of Food Adulteration Rules (hereinafter called the 'Rules') and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for six months. The conviction and sentence were confirmed by the II Additional Sessions Judge, Trivandrum in Criminal Appeal No. 63 of 1979, who, however, reduced the default sentence from six months to three months

(2.) The Food Inspector, Neyyattinkara Municipality (Pw. 1) laid complaint against the revision petitioner under S.7(1) read with S.16(1)(a)(i) of the Act and A. 18.06 of the Appendix B of the Rules on the allegation that on 28-4-1978 at about 9.30 a m. he inspected the provision shop belonging to and run by the revision petitioner in Building No. N. M. C. 1/47A and after disclosing his identity and issuing Form VI notice, under the original of Ext. P2 and acknowledged as per Ext. P2(1), purchased 750 gms. of Peasdhal from the revision petitioner, paid him the price under Ext. P3 voucher, sampled the same in accordance with the provisions of the Act and the Rules, prepared Ext. P4 mahazar and got it signed by the revision petitioner and the witnesses and caused one sample to be sent to the Public Analyst along with a copy of the Form VII Memorandum similar to Ext. P5 and the other samples with other copies of the Memorandum sent to the Local Health Authority under Ext P6. The Public Analyst sent Ext P7 report which showed the sample to be adulterated. The Local Health Authority sent copy of the report along with Ext. P9 intimation to the revision petitioner under Ext P8 acknowledgment and directed the Food Inspector to lay a complaint which be did. The revision petitioner pleaded not guilty before the Trial Magistrate. Pws. 1 to 4 and Dws. 1 and 2 were examined. Exts P1 to P9 were marked. The learned trial Magistrate as well as the learned Appellate Judge upheld the prosecution case.

(3.) The learned counsel for the revision petitioner challenged the legality of the sampling said to have been done by the Food Inspector and the acceptability of the report of the Public Analyst on several grounds. The main ground of attack is that the provisions of S.11(1)(b) of the Act and R.16(c) of the Rules are mandatory in nature and that there is no evidence to show that these mandatory safeguards have been observed by the Food Inspector and therefore, the sampling is vitiated and the prosecution must necessarily fail or in the alternative prejudice must be presumed. The answer of the learned Public Prosecutor is that these provisions are not mandatory in the sense that a failure to observe the same would vitiate the trial or straight away lead to an acquittal, that substantial compliance is sufficient and that acquittal is warranted only if prejudice is proved.