FOOD INSPECTOR Vs. SUBAIR

JUDGEMENT

(1.) This appeal is directed against the order of acquittal passed by the Chief Judicial Magistrate, Ernakulam in S.T.No.76/94. The case arose on a complaint filed by the Food Inspector, Corporation of Kochi, against the respondents, alleging the commission of the offences punishable under S.2 (1a) (m), 7 (1) read with S.16 (1) (a) of the provisions of Food Adulteration Act with R.44 (b) and appendix A.11.01.01 of the Prevention of Food Adulteration Rules, 1955. After the trial, the learned Magistrate found the respondents not guilty of the offences and acquitted them. The order of acquittal is seriously challenged in this appeal.

(2.) The substance of the allegations in the complaint filed by the Food Inspector is as follows: The 1st respondent is the proprietor of the Hotel Jafna in door No.39/1212 within the limits of the Corporation of Kochi, while the 2nd respondent is the Manager of the hotel. On 28-1-1994 at 9.am. the Food Inspector visited the hotel and after serving Form VI notice purchased 750 M.L. curd out of 10 litres kept in an aluminium vessel for sale. Sampling was done as per the provisions of the P.P. Act and Rules and one part of the sample sent to the Public Analyst was found to be adulterated on analysis. The Public Analyst reported that the sample did not conform the standards prescribed for curd under the P.F.Act and Rules, 1955, and is, therefore, adulterated. The evidence in this case consists of the depositions of PWs 1 to 4 and Exts. P1 to P7 arid the deposition of D.W.1 and Exts. D1 to D6. On a consideration of the evidence brought on record, the learned Chief Judicial Magistrate found that the respondents are not guilty of the offences and accordingly acquitted them under S.255 (1) of the Code of Criminal Procedure.

(3.) The learned counsel for the appellant strongly contended that the lower court went wrong in finding that the Food Inspector had not stirred the container before taking the sample. He further contended that the lower court should have found that the decisions reported in K. Harikumar v. Food Inspector, Punaloor Municipality (1995 SCC (Crl) 933 and Raj Pal v. The State of Punjab (1984 FAJ 387) are not applicable to the facts of this case. According to him, the lower court has not properly scanned or weighed the evidence in the case. On the other hand the learned counsel for the respondents supported the order of the court below and urged that there is no ground for interference.