FOOD INSPECTOR Vs. SATHISH KUMAR

JUDGEMENT

(1.) The appellant (Food Inspector. Palghat Municipality) prosecuted respondents 1 and 2 in S. T. Case No. 109 of 1980 before the Chief Judicial Magistrate, Palghat, for an offence punishable under S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 for the alleged contravention of S.7(1) thereof. The sample involved is arrow root powder. Sale to the Food Inspector was on .16-10-1980 at 10 a.m. by the 2nd respondent who was the Salesman cum Cashier. The purchase was from Deepa Medicals, Palghat owned by the first respondent. After duly sampling, one sample was sent to the Public Analyst and Ext P18 report was obtained which showed that what was sold as arrow root powder consisted wholly of corn-starch and as such adulterated because under clause (a) of sub-section (ia) of S.2 of the Prevention of Food Adulteration Act an article is adulterated if what is sold by the vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice or is not of the nature, substance or quality which it purports or is represented to be. The Magistrate acquitted both the respondents on the sole ground that they have established the defence under S.19 (2) of the Prevention of Food Adulteration Act. In the light of the arguments advanced before me by either side the two questions arising for consideration are; (1) whether the appellant violated the provisions of R.17(a) of the Prevention of Food Adulteration Rules; and (2) whether the respondents established the defence available under S.19(2) of the Act. R.17(a) reads thus:

(2.) Admittedly first respondent is the Proprietor and 2nd respondent is the Cashier cum Salesman. So also there is no dispute that the article was sold by the 2nd respondent to the Food Inspector and the formalities of sampling were observed. The only complaint is that the Food Inspector, when he was examined as pw. 1, has not specifically spoken that one part of the sample for analysis together with memorandum in Form No. VII has been sent in a sealed packet to the public analyst. There is no complaint that the sample was sent after the next working day. Two unreported Single Bench decisions of this Court were relied on by the respondents to show that R.17(a) and (b) are mandatory. In Crl. R. P No. 483 of 1981 it was held that R.17(a) is mandatory and its violation will result in acquittal. In Crl. R. P. No. 272 of 1981 R.17(b) was held to be mandatory.

(3.) If so the first question that has to be considered is whether rule I7(a) has been violated as contended. The only objection is that pw. 1 has not spoken in detail regarding the compliance of the formalities in connection with observance of R.17(a). It will be always advisable for the Food Inspector to mention the details in the mahazar as well as in the box. But that does not necessarily mean that absence of a detailed narration either in the mahazar or in the box by itself must always result in acquittal. In a given case even if the evidence of the Food Inspector is only in a general way in relation to the observance of the formalities, the court can go into the entire evidence and see whether the mandatory formalities are sufficiently complied with. Cross examination is intended to challenge the evidence of a witness and expose its falsity or hallowness. When that opportunity is not utilised to challenge the evidence on a particular point, the same has to be taken as not disputed. When the evidence of the Food Inspector contains a general statement that the formalities under R.17(a) have been complied with and when that statement is practically corroborated by the documents proved by him, omission of the accused to challenge the veracity of those documents and that part of the evidence of the Food Inspector must lead to the only conclusion that the evidence in that respect is admitted. Any doubt or dispute entertained by the accused regarding observance of the formalities could have been put to the witnesses so that they could have given further clarifications, if any, necessary. In this case silence was not only daring cross examination of Pws. 1 and 2 but also during final arguments before the Trial Court. The contention regarding non observance of R.17(a) came for the first time during the fag end of arguments before this court when the respondents realised that their defence under S.19 is not going to stand. By such a contention appearing like a bolt from the blue for the first time at the time of arguments before the appellate court the prosecution cannot be allowed to be taken by surprise.