FOOD INSPECTOR PALAKKAD Vs. M V ALU

JUDGEMENT

(1.) Appellant is the Food Inspector. In S.T.No. 36 of 1988 before the Chief Judicial Magistrate, Palakkad, he prosecuted three persons. Third accused is the manufacturer. Second accused is the dealer and the first accused is the salesman of the second accused. First accused was absconding and the case against him was split up. The sample involved is Roja Sugandha Supari powder. Ext. P19 certificate from the Central Food Laboratory and Ext. P17 report of the public analyst, which was superseded by Ext. P19, are to the effect that the sample is adulterated because it contains saccharine, which is a prohibited item. Second accused was tried for having dealt with and sold the adulterated food item and that too without licence and the third accused was tried for its manufacture and distribution. All accused were acquitted. Grounds of acquittal included violations of S.10(7) and 11 (1)(b). The Magistrate was also of the opinion that there cannot be any question of adulteration since saccharine is a permitted item and no standard is fixed for supari. Lastly, the Magistrate relied on a declaration obtained by the third accused from this court in O.P. No. 4619 of 1985 that he can add saccharine in the supari manufactured by him.

(2.) Finding that there is non compliance of S.10(7) is imaginary and fanciful. The sub-section is only intended as a safe-guard to ensure fairness of the action taken by the Food Inspector. What he is obliged to do is only to call one or more independent persons to be present and attest when he takes action. If independent persons were available and even then the Food Inspector did not want their presence or attestation, it could be said that he violated S.10(7). If independent persons available did not care to oblige him in spite of his 'call', he cannot be said to have violated S.10(7). The duty is only to make an earnest attempt in getting independent witnesses. If that earnest attempt did not succeed on account of refusal of independent persons, it cannot be said that S.10(7) is violated. In such a contingency, nothing prevents the uncorroborated evidence of the Food Inspector being accepted, if found acceptable. In this case, over and above the Food Inspector and his peon, an independent witness, PW 2, was present and his signature was also taken. All of them gave evidence. That is why I said that the finding of non compliance of S.10(7) is imaginary and fanciful.

(3.) Finding that S.11(1)(b) was violated is also equally untenable. The duty under that provision is in the matter of sampling. Except in special cases provided under the Act, the sample will have to be divided into three parts and they will have to be marked and sealed or fastened in the manner possible. The only special case is that provided under R.22-A, which says that when food is in sealed containers having identical label declaration, the contents of one or more containers shall be treated to be part of the sample. In this case, the sample purchased was kept in three packets having identical label declarations. Each large packet contained inside it fifty small packets, which also contained identical label declarations. What the Food Inspector did was to sample each large packet in a separate bottle without opening them or the small packets kept inside. I fail to understand how it will be violation of S.11(1)(b), even if it is conceded that the large packets or the small packets inside did not contain identical label declaration.