FOOD INSPECTOR Vs. AHAMMAD HAJI

JUDGEMENT

(1.) Petitioner, Food Inspector, Cochin Corporation, laid a complaint against respondents herein under S.7(i) and 16(1A)(i) read with S 2(ia) and (m) of the Prevention of Food Adulteration Act (for short 'the Act') and R.44(a) and Appendix B. A. 11.02.08 of the Prevention of Food Adulteration Rules (for short 'the Rules') on the allegation that on 26-10-1976 at about 3.45 p m. the Food Inspector inspected the restaurant belonging to the first respondent in which the second respondent was working as a salesman and purchased a sample of 900 gms. of ice cream from the quantity exposed there for sale after following the legal formalities prescribed under the Act and the Rules, in the presence of witnesses Pws 2 and 3 and one of the samples was sent to the public analyst for analysis who sent Ext. P9 report showing that the sample did not conform to the standards prescribed under the rules. In due course, Food Inspector laid the complaint and intimated the Local (Health) Authority who also performed the acts required of him under the Act and the Rules. The respondents pleaded not guilty before the trial Magistrate. Prosecution examined three witnesses and relied on Exts. P1 to P12, One of the samples sent to the Local (Health) Authority was produced in court and marked as Ext MO. 1. It was produced on the application submitted by the second respondent requesting that one of the samples may be sent for analysis to the Director of Central Food Laboratory The second respondent after examining MO. 1 sample bottle took the stand that the sample bottle was not genuine and was a substituted one and in that view, he caused his petition to be dismissed as not pressed. The Trial Court went into the evidence and circumstances of the case and came to the conclusion that the evidence did not establish beyond reasonable doubt that the sample was taken in accordance with the provisions of the Act and the Rules and therefore the report of the Public Analyst would not be the foundation of conviction. Benefit of doubt was given to the respondents and they were acquitted. This appeal has been filed by special leave by the Food Inspector.

(2.) The Trial Court has considered several aspects of the contentions raised before it. All those contentions have been pressed before me either by the appellant or by the respondents. However, I think it is sufficient to consider only two of those contentions to dispose of the appeal. The first contention, and that contention was found favour with the Trial Court, is that since M.O 1 sample bottle originally sent by the Food Inspector to the Local (Health) Authority and subsequently produced by the latter before the Trial Court in accordance with orders of court on application filed by the second respondent was found to be tampered with and there was doubt about its genuineness, the prosecution case should necessarily end in failure. Learned counsel for the respondents supported this view of the Trial Court and argued that when once the sample sent to the Trial Court by the Local (Health) Authority was found to be a suspicious one or if there was doubt about its genuineness, there was a denial of the right vesting in the respondents under S.13(2) of the Act. The correctness of this contention requires to be examined in the light of the provisions of the Act.

(3.) Sub-s.(1) of S.13 of the Act requires the Public Analyst to deliver in the prescribed form, a report to the Local (Health) Authority (L.H. A.) of the result of the analysis of any article of food submitted to him for analysis. Sub-s.(2) states that on receipt of the report of analysis to the effect that the article of food is adulterated, the L.H A. shall, after the institution of the prosecution against the person or persons concerned, forward in the prescribed manner a copy of the report to such persons informing them that if so desired any one or all of them may make an application to the court within a period of 10 days from the date of receipt of a copy of the report to get the sample of the article of food kept by the L.H A. analysed by the Central Food Laboratory. Sub-s.(2A) states that when an application is made, the court shall require the L.H. A. to forward the part or parts of the sample kept by the said Authority and on such requisition being made, the said authority may forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition. Sub-s.(2B) states that on receipt of part or parts of the sample from the Local (Health) Authority, the Court shall first ascertain that the mark and seal or fastening as provided in S.11(1)(b) are intact and the signature or thumb impression, as the case may be, is not tampered with and despatch the part or as the case may be, one of the parts of the sample under its own seal to the Director of Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month thereof specifying the result of analysis. Sub-s.(2C) states that where two parts of the sample have been sent to court and only one part has been sent to the Director, the court shall return the remaining part to the L H. A who shall destroy the same after the certificate from the laboratory has been received. However, where the part of the sample sent by the court to the Director is lost or damaged, the court shall require the L.H. A. to forward the part of the sample if any retained by it to the court and the court thereupon shall proceed in the manner provided in sub-s.(2B). Sub-s.(3) lays down that the certificate issued by the Director under sub-s.(2B) shall supersede the report given by Public Analyst under sub-s.(1).