FOOD INSPECTOR Vs. HAMEED

JUDGEMENT

(1.) THIS appeal is filed by the Food Inspector, corporation of Cochin, challenging the acquittal of the respondent herein in C. C. No. 1021 of 1978 on the file of the Chief Judicial Magistrate's Court, ernakulam, wherein he had been charged for offences under S. 7 (1) and S. 16 (1a) (i) read with S. 2 (la) (m) of the Prevention of Food Adulteration Act (for short the 'act') and also read with A. 11. 02. 08 of Appendix B of the Prevention of food Adulteration Rules, 1955 (for short the 'rules' ).

(2.) THE appellant herein (Pw. l) visited the hotel run by the respondent on 28-11-1977 at 2. 15 P. M. and finding ice cream kept for sale in a Steel Can in a deep freezer, purchased 900 grams of ice cream for the purpose of analysis in the presence of witnesses including pw. 2 and sampled the same in accordance with the Rules as per Ext. P6 mahazar, sent one of the samples to the Public Analyst, Trivandrum, who after observing the requisite formalities conducted analysis, of the sample and issued Ext. P9 report which showed the following: Table:#1 THE Analyst gave the opinion that the sample does not conform to the standard prescribed for ice cream under the Rules and therefore adulterated-According to the standards prescribed, the ice cream shall contain not less than 10 per cent milk fat, 3. 5 per cent protein and 36 per cent total solids. A copy of the report with the intimation under S. 13 (2) of the Act was duly sent to the respondent after the Food Inspector filed a complaint. During the course of the trial, at the instance of the respondent, one of the samples in the custody of the Local Health Authority was sent by the court to the Director of the Central Food Laboratory for analysis. THE report of the Director, Ext. P11, showed the following: THE Director also gave his opinion that the sample is adulterated. 2a. THE Food Inspector was examined as Pw. l and one of the attestors of the mahazar as pw. 2. Public Analyst was examined as pw. 3. THE defence did not tender any evidence. THE respondent in his statement before the trial court, while admitting the purchase of the sample by the Food inspector, the. receipt of the notice and the price, contended that the sample was not properly taken in as much as the ice cream in the Can had not been stirred properly before taking the sample.

(3.) IN the decision reported in State of Kerala v. Alassery Mohammed (AIR. 1978 SC. 933), which is a common judgment in several appeals, the food article in one of the cases was stated to be ghee. It is not possible to find out the identity of the other articles in question in other appeals involved in that decision. The argument regarding the need for the sample to be a representative sample has been dealt with in Para. 13 of the judgment in the following manner: "it was argued, with reference to "methods in food Analysis 2nd Edition by Maynard A. Joslyn" that the sample must be a representative sample. It is with that view that the quantity was prescribed in r. 22 and should not be permitted to be tampered with in any manner. We are not impressed by this argument at all. A representative sample has got a different connotation, meaning and purpose in commercial transactions. If, for instance, an average price is to be fixed for a huge quantity of, say, wheat lying in bulk in different storages, then samples must be taken from all the storages to make them a representative sample of the entire quantity for the fixation of the average price. Taking sample from one storage will not be sufficient. IN our statute the ingredient of the offence is, as mentioned in the 7th section of the Act, manufacturing for sale, storing, selling or distributing any adulterated food. If the food sold to the INspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person. A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the act. " (Emphasis supplied ).