K V BABY Vs. FOOD INSPECTOR WADAKKANCHERY CIRCLE

JUDGEMENT

(1.) The petitioner is the accused in a food adulteration case tried as S.T.No.892/77 on the file of the Judicial Magistrate of First Class, Wadakkancherry on a complaint by the Food Inspector, Wadakkancherry Circle, on the allegation that the petitioner accused sold adulterated cow's milk to the Food Inspector. He was found guilty, convicted and sentenced by the Trial Court. The appeal filed by the petitioner accused was rejected by the Sessions Court, Trichur. The petitioner filed Crl.R.P.No.704/1990 before this Court against the order of his conviction and sentence. This Court as per its order dated 12-3-1992, reversed the conviction and sentence passed on the petitioner accused and remanded the case back to the Court below for fresh disposal of the case on merits according to law. The said order was passed by this Court accepting the request of the petitioner that he wants to adduce further evidence to show that the variation noticed in the result of the Public Analyst's report, Ext. P13 was due to the natural causes beyond the control of human agency. The petitioner also wanted to examine the Director, Central Food Laboratory, who issued Ext. P16 certificate in respect of the sample sent to him for analysis from the court.

(2.) After remand, the petitioner accused filed Crl.M.P.No.1440/91 to summon the Director of Central Food Laboratory as a witness in the case. The learned Magistrate as per his order dated 7-5-1991 ordered that the Court is not feeling it necessary to examine the Director of Central Food Laboratory as a Court witness. But, if the defence counsel, so chooses to examine the witness, he will have to meet the expenses and the learned Magistrate allowed the petition on condition of pre-payment of batta to the Director of Central Food Laboratory within seven days. The petitioner/accused has questioned the validity of the said order in this proceedings under S.482 of the Code of Criminal Procedure.

(3.) According to the petitioner, the direction issued by the Trial Court to pay the batta to summon the Director of Central Food Laboratory as a witness in the case is illegal and unjust. He has also stated that the Court below ought to have issued summons to the ., Director of Central Food Laboratory to appear and give evidence as a Court witness. He further places reliance on R.206 of the Kerala Criminal Rules of Practice, 1982 in support of his contention that it is the duty of the Court to pay the batta to the witness sought to be summoned at the instance of the petitioner/accused in the case, since the prosecution under the provisions of Food Adulteration Act as per S.20 of the Act can be instituted only with the written consent of the Central or State Government or any ' person authorised by those Governments in that behalf and the complaint in the case was instituted by the Food Inspector of the Municipality who is a public servant and therefore, the bata of the witness summoned will have to be paid by the Court. Incidentally, the petitioner questions the correctness of the decision reported in Chandran v. Food Inspector ( 1986 KLT 1110 ).