FOOD INSPECTOR QUILON MUNICIPALITY Vs. M.H. SHOUKATHALI

JUDGEMENT

(1.) A retail dealer in food articles was prosecuted by the appellant food inspector for the offence under Sec. 16 (1A) (a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the Act). The wholesale dealer from whom the retailer purchased the food article was also arraigned as an accused in the trial court. The Magistrate acquitted both of them. But this appeal, filed by the said food inspector, only challenges the acquittal of the retail dealer. He will be referred to as the accused hereinafter. The appellant visited the shop of the accused on 24 -1 -1986 and purchased 600 grams of coriander, and notice was given to the accused in writing then and there of his intention to have the article analysed. The sample, when analysed by the Public Analyst, was found to be adulterated since the extraneous matter and insect damaged matter in the food article had exceeded the permitted limits. There is no dispute that the food inspector had purchased the food article from the accused or that the food inspector had committed any irregularity in sampling. The defence was two fold. The first is that since he purchased the food article from a licensed wholesale dealer under a written warranty and the accused sold it in the same state as he purchased it he is not liable to be convicted. The second is that since coriander is a primary food the insect damaged matter therein increased due to natural causes beyond the control of human agency. Learned Magistrate rejected the first contention, but upheld the second contention for which he relied on the decision of the Full Bench of this Court reported in Food Inspector v. Prabhakaran (1982 K. L. T. 809 F. B. ). The first contention was rejected on the ground that the accused had opened the gunny bag and kept the food article in open and hence the food article was not sold in the same state as he purchased it. He acquitted both the accused in the light of his finding regarding the second contention

(2.) LEARNED Public Prosecutor has rightly contended that the trial Magistrate went wrong in relying on the Full Bench decision cited supra because a larger Full Bench has since overruled the said decision. (Vide Mathukutty v. State of Kerala (1987 (2) K. L. T. 867) The sample in this case was taken by the food inspector on 24 -1 -1986. The report of the Public Analyst (Ext. P12) shows that it was analysed on 17 -2 -1986. The Public Analyst reported that the sample contains 11.5 percent of extraneous matter by weight and 107 per cent of insect damaged matter by weight. Item No. A 05 08 in Appendix -B of the Rules under the Act, prescribes that the proportion of extraneous matter in coriander shall not exceed 8.0 per cent by weight and the amount of insect damaged matter shall not exceed 5 per cent by weight If one has to go by the result of the analysis as evidenced by Ext P12, it has to be held that the sample is adulterated. The Larger Bench in Mathukutty's case (cited supra) which overruled the earlier Full Bench decision in Prabhakararn's case has held that the time lag between the date of sampling and the date of analysis by itself would be of no consequence for determining whether an article of food is adulterated as it contains insect damaged matter in excess of the prescribed limit. The Larger Bench has observed thus: "There should be sufficient materials in evidence from which it can be reasonably inferred that the sample at the time of sale could not have been insect infested or could not have contained insect damaged matter in excess of the permuted limit and in the absence of such materials the report to the Public Analyst or the certificate of the Director of Central Food Laboratory, as the case may be, shall be taken as indicative of the quality and standard of the article of food at the time of sampling". There is no material in this case to show that the increase of the insect damaged matter beyond the permitted limit was the consequence of the time lag between the date of sampling and the date of analysis. Hence the reasoning adopted by the learned Magistrate for acquitting the accused cannot be sustained.