PUBLIC PROSECUTOR Vs. BASHEER SAHIB

JUDGEMENT

(1.) THIS appeal comes before us on a reference by Kunhamed Kutti J. The learned judge felt a doubt with regard to the proper interpretation of rule 22 of the rules framed under the Prevention of Food Adulteration Act, though in two earlier judgments of single judges of this court, the view had been taken that the Rule is not mandatory in the sense that noncompliance therewith would vitiate the prosecution proceedings. For that reason that this question is one which is likely to arise frequently the matter has been posted before a Bench.

(2.) THE petitioner was prosecuted under Ss. 7 and 16 (1) read with S. 2 (1) (a) of the prevention of Food Adulteration Act 1957. The Food inspector, who is the complainant seized a certain quantity of milk from the petitioner and divided the milk into three parts, one of which was handed over to the petitioner and one part sent to the Government Analyst. The report of the analyst showed that the milk contained 13 per cent of added water. The Sub-Divisional Magistrate, who tried the case found that the quantity sent to the Government Analyst consisted only of 5. 2 fluid ounces. Rule 22 however prescribes that the quantity of the sample to be sent to the Public Analyst shall be in the case of milk, 9 ounces. The trial magistrate accepted the contention that the opinion of the Analyst arrived at on conducting test with a quantity less than that prescribed by the Rule cannot be taken to be one arrived in accordance with the law. He accordingly acquitted the accused.

(3.) THE Public Prosecutor filed an appeal against the acquittal, and that is how the matter came before the High Court.