T M SURESH Vs. FOOD INSPECTOR

JUDGEMENT

(1.) Revision petitioner is the 2nd accused in S.T. 55 of 1986 of the Additional Chief Judicial Magistrate, Ernakulam. He was found guilty under S.16(l)(a) of the Prevention of Food Adulteration Act and was convicted and sentenced to undergo imprisonment for 6 months and also to pay fine of Rs. 1,000/-. Appeal filed by him ended in dismissal.

(2.) The main contention raised by the revision petitioner is that the first - respondent (complainant) has not adduced any evidence other than the oral evidence of P.W.1 to establish that R.17 of the Prevention of Food Adulteration Rules has been complied with. Learned counsel for the revision petitioner relied on State of Maharashtra v. Rajkaran (1988 SCC (Crl.) 47) and contended that failure to prove the despatch of ' sample and memorandum in Form VII by adducing evidence, vitiates the prosecution and the conviction is liable to be set aside on that ground. In view of the decisions of this Court in Food Inspector v. Velayudhan ( 1987 (1) KLT 722 ) (Division Bench) and Mathukutty v. State of Kerala ( 1987 (2) KLT 867 ) (Full Bench), Shamsuddin J. held that the question mooted deserves to be considered by a Division Bench.

(3.) R.17 of the Prevention of Food Adulteration Rules deals with the manner of despatching containers of samples. R.17 (a) provides that the sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means. R.17(b) is concerned with the sending of sample to the Local (Health) Authority. R.18 provides that a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day. Revision petitioner contends that there is no acceptable evidence to hold that R.18 has been complied with in this case and as it is the bounden duty of the prosecution to establish the despatch of the documents referred to in R.18 separately, the entire trial is vitiated for the failure to do so. Learned counsel for the respondents submitted that the decision reported in 1988 SCC (Crl.) 47 has no application to the case in hand in view of the unchallenged evidence of the Food Inspector that copy of the memorandum and specimen impression of the seal were sent through special messenger.