RAJAN Vs. STATE OE KERALA

JUDGEMENT

(1.) THE two accused in C. C. 76 of 1975 on the file of the judicial First Class Magistrate, Ettumanoor are the revision petitioners.

(2.) AT 11-30 A. M. on 17-12-1974, the Food Inspector, kaduthurthy Panchayat purchased 600 grams of cumin seeds from the first petitioner who was conducting sales in shop No. K. III-12 of the Kaduthuruty panchayat. The sample was divided into three parts and was packed and sealed in three glass bottles. One of the bottles was entrusted to the first petitioner, the second bottle was sent to the Public Analyst, Trivandrum and the third bottle was retained with the Food Inspector for production in Court. The Public analyst reported that the sample consisted of Table:#1 As per the standard fixed for cumin seeds in Appendix B of the Prevention of Food Adulteration Rules, 1955-A. 05 09-the proportion of extraneous matter including dust, stones, lumps of earth, chaff, stem or straw shall not exceed 7. 0 per cent by weight and the proportion of edible seeds other than cumin seeds shall not exceed 5. 0 per cent by weight. The Public analyst, therefore, reported that the sample sent was adulterated. The report is Ext P5. A complaint was, therefore, filed against the first petitioner. After the first petitioner entered appearance, a motion was made by the Food inspector for impleading the second petitioner on the ground that the licence of the shop stood in his name. The second petitioner was thereafter made the 2nd accused in the case. After the trial began, the first petitioner filed an application under S. 13 (2) of the Prevention of Food Adulteration Act as it stood on the relevant date for sending the sample entrusted to him to the director of Central Food Laboratory. On 13-5-1975, the Magistrate sent a requisition to the Director with the concerned sample. On examining the package, the Director suspected foul-play. He sent a confidential communication to the Magistrate on 12-6-1975 to the following effect: "on examination of the package it has been found that the seals and the fastening of the sample package are very fresh and appears to have been performed recently. Further the sample superficially looks very excellent and well-cleaned. Such types of samples are usually not available in the market. Hence it is suspected that the contents may have been changed before sending the sample to the Laboratory. This is for your kind information. However, analysis is being done and the sample will be reported in due course. " The report of analysis was sent to the following effect on 1-7-1975: Table:2 Opinion: The sample of Cumin whole is suspected to be tampered with before sending to this laboratory. This had been intimated before the analysis was undertaken. The report also stated that the seals were in tact. This report is marked Ext. D1.

(3.) THE contention put forward on behalf of the petitioners is threefold. In the first place, it is argued that the trial court committed an illegality in sending the sample to the Director of Central Food laboratory at the instance of the Food Inspector. THEre was non-compliance of r. 9 0) of the Prevention of Food Adulteration Rules in that no copy of the report of the Public Analyst was delivered to the petitioners. THE third ground of attack is that even assuming that the sample was adulterated as mentioned in ext. P8 report, in the absence of evidence that the existence of extraneous matter was injurious to health, the conviction is not sustainable in law. On behalf of the second petitioner, it was also argued that the conviction so far as he is concerned is unwarranted inasmuch as there is no evidence to show that he had anything to do with the sale.