STATE OF KERALA Vs. C CHACKO

JUDGEMENT

(1.) This appeal is by the State against acquittal in a prosecution under the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954). On 22-9-1968 at about 9.30 A.M. the Food Inspector, Kottarakara found the accused taking two bottles of milk for sale to the teashop of pw. 2 near the Chittumala Junction. From him the Food Inspector took 660 milli litres of milk after giving him the prescribed form VI notice. The price was also paid. On analysis by the Public Analyst the milk was found to be adulterated, in that it contained 40 percent of added water. The learned Magistrate has found that the milk was purchased by the Food Inspector and that it was properly sampled and one such sample was handed over to the accused. Pw2 is the teashop man to whose shop the accused is stated to have taken the milk for sale. But he did not support the prosecution case that the milk was taken to his shop for sale. He denied the allegation that the accused used to sell milk to him. All that he has stated is that the Food Inspector cam to his shop along with the accused and asked him about the prevalent price of milk. Pw3 is an attestor to the mahazar but he resiled in the witness box and stated that he did not see the Food Inspector taking the sample and also the accused receiving the price. But in spite of this witness turning hostile the learned Magistrate has accepted the mahazar and the other documents and entered the finding that the case of the prosecution that the sample was taken from the milk carried by the accused is true. I see no difficulty in accepting this finding because the accused himself has admitted that the milk was seized from him. He has signed the form VI notice and also signed Ext. P4 the voucher for receipt of the price. The mahazar has also been signed by him. But the case put forward in this Court is that the price was not in fact, received by him but was left on the bench in the teashop by the Food Inspector. The learned counsel would also argue that even if the price was received by the accused, the transaction will not amount to sale since it was a compulsory purchase. For this position the learned counsel relied on a single Bench decision of the Madras High Court reported in In re Rathamani ( AIR 1965 Mad. 146 ) where Justice Anantanarayanan relying on a single Bench ruling of this Court in Food Inspector v. Parameswaran (1962 (I) CriLJ 152) (Kerala) observed:-

(2.) A contract comes into existence by the acceptance of a proposal made by one person to another by that other person. The latter is not bound to accept the proposal. It may not, however, necessarily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract."

(3.) The acquittal can, however, be supported on another ground namely that by the conduct of the prosecution the right conferred on the accused by S.13(2) of the Act to have the sample given to him analysed by the Director of the Central Food Laboratory, was lost. In the present case, the sample was taken on 22-9-1968. The report of the analyst is seen dated 17-10-1968. The charge, however, was filed only on 23-1-1969. The first hearing of the case was on 3-2-1969. The accused can avail himself of the right of sending the sample to the Central Food Laboratory only on the date of the first hearing of the case. By that time more than four months had elapsed and no purpose would have been served by sending the sample for analysis to the Central Food Laboratory. On the right conferred on the accused under S.13(2) the Supreme Court would observe: