KESAVAN Vs. FOOD INSPECTOR

JUDGEMENT

(1.) Petitioner was convicted for an offence punishable under S.2(ia)(a), (c), (m), 7(i) read with R.44(b) and Appendix B.A11.01.11 in R.5 and S.16(1)(a)(i) of the Prevention of Food Adulteration Act. The charge was that the sample of milk taken from the petitioner, was found to be adulterated. I do not propose to go into the facts because the case turns on a question of law, and counsel has not urged any other point. The Public Analyst found that the sample was adulterated. At the request of the petitioner a sample was sent to the Central Food Laboratory and on Analysis it was found to be adulterated. There are however differences between the findings of the Public Analyst, and the Central Food Laboratory.

(2.) Counsel for petitioner submits that S.13(2)B has not been complied with. S.13(2)B of the Act requires that the court shall ascertain that the mark and seal or fastening as provided in clause.(b) of sub-section (1) of S.11 are intact and the signature or thumb impression as the case may be are not tampered with, and that one of the parts of the sample under its own seal, should be sent to the Director, Central Food Laboratory. According to counsel, this requirement has not been satisfied and the magistrate did not apply his mind to the prescriptions of the Section. Counsel is well founded in his submission. Proceedings of the court below show that no such compliance has been made. The endorsement on 25-3-1981 is:

(3.) It is argued by counsel for respondent Municipality that the certificate issued by the Central Food Laboratory would show that the seal was intact and the requirements of Law are satisfied. These are not matters left to that authority. Magisterial responsibility cannot be substituted. If such were to be the case the court will be abdicating its functions to the Analyst. In Municipal Corporation of Delhi v. Kacheroo Mal ( AIR 1976 SC 394 ) Supreme Court stated the law thus: