MATHEN GEEVARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS Revision Petition is directed against the conviction of the petitioner under section 16(1 )(a )(ii)of the Prevention of Food Adulteration Act,1954,Act 37 of 1954,read with the proviso thereto and the sentence of simple imprisonment for one year and of fine of Rs.2,000 passed on him.The case is,that P.W.1,the Food Inspector of the Thiruvalla Municipality,purchased 600 grms.of mazoor dhal from the accused and after making an analysis thereof under the provisions of the Act,preferred a complaint against him,that the dhal was adulterated.The accused pleaded not guilty.After trial,the Magistrate found inter alia ,that mazoor dhal was generally used for human consumption,and that it was sold as an article of food and not as fodder.In appeal before the Sessions Judge,Alleppey,learned counsel appearing for the accused did not question the several findings of the trial court,except the finding that the accused sold mazoor dhal as food and not as fodder.After a consideration of the evidence adduced by the prosecution,believing PWs.1 and 3,disbelieving P.W.2 who was cross -examined as a hostile witness and also D.Ws.1 and 2 and relying upon Ext.P -5 the mahazar prepared by P.W.1 and Ext.P -6 the bill issued to him by the accused,the learned Judge came to the conclusion,that the accused sold mazoor dhal as food and not as fodder.When this Revision Petition was heard by a learned judge this Court,it appears to have been argued before him,that P.W.1 did not clearly deny the existence of a board in the shop of the accused,notifying the sale as fodder.What P.W.1 said was,that he did not see any such noticeboard there.The learned Single Judge did not,however,proceed to record any finding on the point.Alternatively it was argued before him by the prosecution,relying on the decision of the Full Bench in Govinda Pillai,Food Inspector , Quilon v. Padmanabha Pillai, 1964 K.L.T.1023 that the conviction has to be maintained even if mazoor dhal was really fodder.The learned Judge doubted the correctness of the dictum in the case cited,and placed the case before the learned Chief Justice for reference to a larger Bench,if necessary.The learned Chief Justice,however,ordered,that the case may be posted before a Full Bench of three Judges,stating that if that Bench thought it necessary,the case may be referred to a larger Bench to reconsider Govinda Pillai,Food Inspector,Quilon v. Padmanabha Pillai, 1964 K.L.T.1023.It is in these circumstances,that the case has now come up before us.

(2.) AS stated,before the learned Sessions Judge,learned counsel for the accused challenged only the correctness of the finding of the Magistrate,that mazoor dhal was sold as an article of food and not as fodder.On the materials considered by the Judge and adverted to above,he was justified in confirming the Magistrate 's finding and there is no ground in revision to disturb the finding.If the finding is to stand,the conviction entered against the accused has only to be affirmed.

(3.) IT was argued before us by learned counsel for the accused,that neither the complaint nor the charge framed gave any indication that mazoor dhal is an article of food.The parties were at issue on the point and the Magistrate found that mazoor dhal is generally used for human consumption.Assuming that there was any error,or defect,or irregularity in the charge or the complaint,we are not,satisfied that the accused has been prejudiced thereby.This is quite apparent from the fact,that the accused submitted before the Judge to the finding of the Magistrate.We therefore do not accept the argument as valid. In this view,it is unnecessary to advert to the decision in Govinda Pillai,Food Inspector,Quilon v. Padmanabha Pillai ,1964 K.L.T.1023.