FOOD INSPECTOR CALICUT Vs. T KARUNAKARAN

JUDGEMENT

(1.) THIS appeal is against the acquittal of the respondents in a case in which they were prosecuted for an offence under S. 16 (1) (a) (i) of the Prevention of Food Adulteration Act (Act 37 of 1954 ).

(2.) THE prosecution case briefly was that the second accused, a hotel in Calicut , of which the first accused was the cashier and the 3rd accused was the managing director, used to sell ice-cream. On 16 41970 pw. 1, the Food Inspector of calicut Corporation, went into the hotel and purchased ice-cream for the purpose of analysis. Nine cups of ice-cream are stated to have been purchased, the formalities complied with, the ice-cream purchased sampled into three according to procedure, one sample given to the accused, one sample sent to the court, and the third sent to the Analyst for the purpose of analysis. THE public Analyst found that the sample contained ice-cream which was adulterated hence on the basis of Ext. P-3 report of the Food Inspector, prosecution was sanctioned by the Health Officer of the Corporation.

(3.) EVEN assuming that there is no acceptable evidence as to the exact quantity of the foods tuff taken for analysis, if it has been possible for the analyst to carry out a proper analysis and arrive at his conclusion without any handicap, the quantity of ice-cream taken as sample may not be much material. Under the various items of food enumerated in R. 22 of the prevention of Food Adulteration Rules, 1955, item 22 is ice-cream, and the approximate quantity to be supplied for the sample is stated to be 300 grammes. It appears that the legis-lature has used the word "approximately" guardedly, so that nice question of exactitude may cot create any difficulty in regard to the implementation of the relevant provisions of the Act. As has been held in Food Inspector, Quilon v. Koyakutty (1972 KLT 464) "though R. 22 uses the word 'shall', the specific mention of an approximate quantity therein minimises the mandatory force of the expression; the provision is only a means for securing the evidence of an expert witness. If the quantity furnished was adequate enough to render possible all the tests necessary and the expert was in a position to pronounce on the materials supplied, the short delivery would not detract from the value of the evidence furnished by the analyst. " The view expressed in Public Prosecutor v. Venkata Swami (AIR. 1967 Andhra Pradesh 131) is as follows: "the object of supplying a reasonable quantity of sample is to enable the Analyst to conduct more than one test, if necessary. If the quantity supplied is insufficient it is for him to complain that on account of the insufficiency of the quantity he could not analyse the sample and arrive at a conclusion. It is not open to the accused to make a complaint,. " The contention in that case was that, according to the rules, 8 ounzes of milk had to be sent to the Public Analyst whereas the quantity of milk that seems to have been sent was only 4 ounzes in the case of each sample. Repelling the contention of the accused, it was held that that has not resulted in any prejudice to the accused, The same is the view, in effect, taken in Public Prosecutor v. Basheer Sahib (AIR-1966 Madras 325); in Nagar mahapalika v. Ant Ram (AIR. 1965 Allahabad 32); and in State of Bombay v. Ramanlal Jamnadas (ILR. 1960 Bombay 404 ). In the light of these decisions, I am inclined to take the view that the learned District Magistrate has misdirected himself in holding that because there was no acceptable evidence regarding the exact quantity of the ice-cream taken for analysis, the accused had to be acquitted.