CHACKO Vs. FOOD INSPECTOR

JUDGEMENT

(1.) PETITIONER was prosecuted for offence u/s s. 16 (1) (a) (i) read with S. 2 (ia) (a) (c) and (m) and S. 7 (i) of the Prevention of food Adulteration Act, hereinafter referred to as the Act and item A. 05. 08. 01 of Appendix B to Rule S of the Prevention of Food Adulteration Rules. He was also charged with offence u/s. 16 (1) (a) (ii) read with S. 7 (iii) and (v) of the act and R. 50 (i) of the Rules. During trial, at the instance of the petitioner second accused, manufacturer was impleaded u/s. 20 A of the Act Without recording the plea of the second accused trial was proceeded with. P. Ws 1 to 6 were examined and Exts. P1 to P4 marked. At this stage it was noticed by the magistrate that the plea of the second accused was not recorded. Thereupon a denovo trial was held after the particulars of offence were read over and explained to the second accused and he pleaded not guilty. Learned Magistrate after appreciating the entire evidence found petitioner guilty of the offence u/s. 16 (1) (a) (i) of the Act. He was convicted thereunder and was sentenced to suffer simple imprisonment for six months and to pay a fine of Rs. 1000/- and in default of payment of fine to suffer simple imprisonment for one month. He was acquitted of the charges u/ss. 16 (1) (a) (ii) of the Act. As there was no evidence connecting the second accused with the article of food sold by the petitioner, he was acquitted PETITIONER challenged his conviction and sentence in appeal without success. Hence this revision petition

(2.) PROSECUTION version of the incident is as follows :--At about 10 a. m. on 2-6-1983 Food Inspector, P. W. 1 inspected the provision shop of the petitioner at Kidangoor. After revealing his identity and service of Form VI notice, P. W. 1 purchased 600 gms. of coriander powder from the petitioner. He divided the same into 3 equal samples. The sampling was done in accordance with the provisions of the Act and the rules. One part of the sample was sent to Public Analyst for analysis and the other two parts to the Local Health Authority. Form VII memorandum together with specimen impression of the seal used to seal the samples were also sent to the Public Analyst and Local Health Authority in accordance with the Rules. After analysis Public Analyst sent his report in Form III. It stated that the sample did not conform to the standards prescribed for coriander powder under the Rules and hence adulterated. Consequently complaint was laid before court. Local Health Authority then sent a copy of Form HI report together with notice u/s. 13 (2) of the Act to the petitioner. He did not choose to have a sample analysed by the Central Food Laboratory.

(3.) FOOD Inspector as P. W. 1 has sworn to the various steps taken by him in the purchase and sampling of coriander powder from the provision shop of the petitioner. In his evidence he has stated that the coriander powder purchased by him was properly mixed and sampled it in 3 clean and dry bottles. He prepared a mahazar at the time of the sampling. It is a contemporaneous record of the various steps taken by the FOOD Inspector. It is marked in this case as Ext. PS. That mahazar is silent regarding the manner in which coriander powder purchased from the petitioner was mixed. P. W. 1 stated before court that the powder was put on a plastic sheet placed on the table and mixed before sampling. In cross-examination he was asked as to how he mixed the powder. He gave the reply that a spoon was used for mixing the powder. Since this aspect was not mentioned in Ext. PS, learned counsel wants this court to disbelieve P. W. 1's statement that he used a spoon to mix the powder. Further p. W. 3, peon attached to the FOOD Inspector, at the first instance stated that the powder was mixed by P. W. 1 using his hand. Later when the case was tried denovo, he stated before court that a spoon was used by the FOOD Inspector for mixing the powder. According to counsel, this difference regarding the spoon used for mixing the powder as stated by P. W. 3 should also be taken as a fatal defect of the prosecution. I find it difficult to accept this argument advanced by counsel. According to me, the mahazar need not contain all the minute details regarding the steps taken by the FOOD Inspector. The preparation of mahazar is not contemplated by any of the provisions of the Act or Rules. No witness is also to be called upon to attest the mahazar. To give credence to the evidence given by the FOOD Inspectors, they prepare mahazar which is a contemporaneous record of what takes place at the time of the sampling. One or more persons to be called by the FOOD Inspector u/s. 10 (7) are to affix their signature or thumb impression on the paper slip pasted around the sample, if the vendor refuses to affix his signature thereon. This is the only part to be played by person or persons called by the FOOD Inspector as per S. 10 (7) of the act (Vide R. 16 (c) of the Prevention of FOOD Adulteration Rules ). Therefore the absence of the details regarding the method adopted by the FOOD Inspector in mixing the sample in the mahazar is not at all fatal to the prosecution. It is true that P. W. 3 stated before court, at the first instance, that P. W. 1 mixed the powder by using his hand. This was given a goby and he asserted that a spoon was used for mixing the powder. P. w. l, right from the very beginning, stated before court that he used the spoon for mixing the powder purchased from the petitioner. This evidence of P. W. 1 has not been shown to be untrustworthy. Courts below have accepted his version. The FOOD Inspector is not in the position of an accomplice and his evidence alone if believed can sustain the conviction. On going through his evidence, I do hot find any ground to discard his evidence. On the materials now before court, I concur with the conclusion arrived at by the courts below that the FOOD Inspector purchased the coriander powder from the petitioner, mixed the same by using a spoon and sampled the same in 3 dry clean bottles strictly in compliance with the provisions of the Act and the rules framed thereunder. The result, therefore is, I find no substance in the first ground urged by the learned counsel.