FOOD INSPECTOR Vs. ABOOTY

JUDGEMENT

(1.) CRIMINAL Appeal No. 246 of 1986 is filed by the Food inspector of Tellicherry Municipality against the judgment of acquittal in c. C. No. 110 of 1983 on the file of the Additional Judicial First Class magistrate-I, Tellicherry. CRIMINAL R. P. No. 444 of 1987 is filed by the first accused in C. C. No. 127 of 1984 on the file of the same court against the conviction and sentence entered against him by the magistrate which has been confirmed by the Sessions Judge in appeal. CRIMINAL R. P. No. 464 of 1987 is filed by the accused in C. C. No. 225 of 1983 of the same court against the conviction and sentence entered against him which has been confirmed by the sessions Court in Crl. Appeal No. 293 of 1985. The CRIMINAL Appeal and the revision Petitions have been referred to Division bench by the learned single judges who heard the cases. Reference order in Crl. Appeal No. 246 of 1986 doubts the correctness of the decisions in Food Inspector v. Jose (1987 (2)KLT. 190) and Food Inspector v. Vidhyadharan (1987 (1) KLT 414 ). The revisions have been referred to Division Bench since they involve the same questions.

(2.) C. C. No. 110 of 1983 arose out of a complaint filed by the Food Inspector against the accused therein, trader in spices and condiments doing business in the name "t. M. Masala Works". On 19-4-1983 Food Inspector in accordance with law purchased sample of 600 grams of corainder powder exhibited for sale in the shop. The article was in packets containing 100 grams each. Six packets were purchased and the packets were divided into three parts and treated as parts of the sample. In due course the Public Analyst who received the sample part from the Food Inspector sent Ext. P12 report opining that the sample did not conform to the standards prescribed in the Prevention of Food adulteration Rules (for short'the Rules') for corainder powder and therefore was adulterated. At the instance of the accused another pan of the sample consisting of two packets was sent by the court to the Director of Central Food laboratory and he submitted Ext. C-1 report indicating that the part of the sample was adulterated as it did not conform to the standards prescribed in the rules. The trial court acting on the evidence of P. Ws. 1 and 2 and partly on the evidence of P. W. 3, hostile witness, held that Food Inspector did purchase 600 grams of coriander powder from the accused. The trial court was of the opinion that the Food Inspector purported to follow the procedure prescribed in R. 22-A of the Rules and did not open the packets or mix the contents before dividing the sample into three parts. The trial court held that R. 22-A would not apply since the packets are not "sealed containers", but only closed containers and therefore R. 22-A could not have been followed. Accordingly the accused was given the benefit of doubt and acquitted following the decision of a learned single judge of this court in State of Kerala v. Balakrishnan (1972 KLT 964 ). The acquittal is now challenged in the appeal.

(3.) WE will first deal with the common questions of law arising for consideration before dealing with the facts of each case. Learned counsel who appears for the respondent in Crl. A. No. 246 of 1986 contends that contents of sample purchased by the Food Inspector must be homogeneous and for that purpose mixing of the sample before division into three parts is necessary except in cases covered by R. 22-A of the Rules, that R. 22-A is mandatory and can be applied only when the conditions stipulated therein are strictly satisfied and the existence of the conditions is strictly proved and that polythene packets purchased by the Food Inspector are not shown to be sealed containers and did not contain identical label declaration and R. 22-A was not attracted and the Food Inspector ought to have opened the packets and mixed the contents before dividing into three parts and since that was not done no weight can be attached to the report or certificate. Learned counsel who appear for the revision petitioners in the two revision petitions contends that in those two cases the packets purchased by the Food Inspector were sealed containers and conform to the requirements of R. 22-A which is mandatory and the Food inspector should have followed the procedure prescribed in the Rule, but did not do so and opened the packets and mixed the contents which should not have been done and therefore the result of the analysis cannot be accepted. Learned counsel who appears for the Food Inspector in the three cases rebutted these contentions. According to him, mixing of the sample is not required by the prevention of Food Adulteration Act (for short'the Act') or the Rules and r. 22-A is not mandatory but only an enabling provision which is directory in nature, and since no prejudice has been shown to have been caused to the accused persons, conviction in the two cases is justified and the acquittal in one case is to be reversed. Learned counsel for the Food Inspector seeks re-consideration of the decision in Food Inspector v. Jose (1987 (2) K. L. T. 190 ).