M K BABU Vs. FOOD INSPECTOR KAKKANADU

JUDGEMENT

(1.) This Criminal Revision petition is referred to the Division Bench by learned single Judge of this Court (Mr. M. R. Hariharan Nair, J.) with the following observations :

(2.) Facts found by the Court below concurrently based on evidence need no interference in a revision petition and we are only considering the legal points. According to the learned counsel for the petitioner/accused Rule 14 is mandatory. Rule 14 of the Prevention of Food Audulteration Rules (in short "Rules") reads as follows :

(3.) PW1 is the Food Inspector. He deposed that when he visited the hotel, he saw 15 litres of curd made out of cows milk for sale in a 20 litres vessel. He asked for 900 gms. of curd and that was given after payment of cash and obtaining Ext. P3 bills. It was further deposed that it was stirred well, divided into three equal parts, filled in dry and clean bottles and sealed as per law. It is stated as follows : (Vernacular matter omitted........Ed.) Therefore, he has given positive evidence before the Court that Rule 14 was complied with and the three bottles in which samples were taken were dry and clean. He also deposed that sampling was done in accordance with law. He has not specifically stated anything about the nature of intermediary steel vessel. In cross-examination, no suggestion was also put to show that intermediary vessel and spoon used for stirring and mixing the sample curd was not dry and clean. But it came out in cross-examination that the nature of the vessel was not stated in the mahzar. PWs. 2 and 3 are mahazar witnesses, who admitted that they signed the recovery mahazar and nothing was asked or deposed by them in chief examination or cross-examination regarding the intermediary vessels or spoon used for stirring. PW 4 is the Local (Health) Authority, who also deposed regarding the sending of samples etc. in accordance with rules. DW1, one Pankajakshan was examined by the defence and he deposed that he wrote the bill as requested by PW1. He also did not depose anything about the nature of intermediary vessel used. No question was asked regarding that by the accused. Now we come to Section 313 Cr. P.C. statement. In Section 313 statement, there was no case for the petitioner that intermediary vessel or spoon used were not clean and dry. His only case in Section 313 statement was that the curd was not kept for sale and it was butter milk intended for internal use. The courts below concurrently found that the curd intended for sale in the hotel was taken as sample. It is a finding of fact based on evidence.