STATE Vs. NARAYANASAMY

JUDGEMENT

(1.) This appeal is directed against the judgment of the acquittal delivered by the Judicial Magistrate No. 1, Dindigul in C.C. No. 1269 of 1985.

(2.) The case of the appellant/complainant in short is as follows :- On 12-7-1985 at about 11-35 a.m. the complainant went to the Ice-Cream Stall of the respondent located at Abhirami Theatre, Dindigul and introduced himself as the Food Inspector, to the respondent in the presence of P.W. 2 Mylvel and served Form No. 6 on the respondent which is marked as Ex. P. 1. He purchased 900 grams of Ice-cream from the respondent on payment of Rs. 15/- for which Ex. P2 receipt was issued by the respondent. Ex. P. 2 was signed by the respondent and P.W. 2. Then he divided the Ice-cream into three equal parts and put them in three bottles. On each bottle he also dropped formalin. Then he packed and sealed all the three bottles following the procedures laid down in the Prevention of Food Adulteration act. One of the three bottles was put in a wooden box and that was also packed. It was then sent to Public Analyst, Food Analysis Laboratory, King Institute, Guindy, Madras, for his report, through Railway Parcel. Ex. P. 3 is the receipt issued by the Railways to the complainant examined as P.W. 2 for receiving the freight charge. Ex. P. 4 is the Memorandum in Form No. 7 sent by P.W. 1 to the Public Analyst. Then he entrusted the two other bottles to the Local Health Authority, Dindigul, for which P.W. 1 sent an intimation to the Local Health Authority. The intimation is marked as Ex. P. 5. The acknowledgment issued by the Local Health Authority, Dindigul Municipality for receipt of the two bottles, forms part of Ex. P. 5. The sample which he sent to the Public Analyst was received by the Public Analyst as is seen from the postal acknowledgment marked as Ex. P. 6. The report of the Public Analyst is marked as Ex. P. 8 which would disclose that the sample does not confront to standard for Ice-cream with respect to Milk Fat content, Protien content since they are deficient to the extent of 35% and 54% respectively. Hence it is adulterated. Thereafter, on receipt of Ex. P. 8, P.W. 1 filed a complaint before the trial Magistrate. He also served a notice under S. 13(2) of the Act. Notice is marked as Ex. P. 9. On receiving the notice from the Court, the respondent appeared. He was served with the copy of the complaint. Since the respondent denied the particulars of the charge, to establish the case of the appellant, examined himself as P.W. 1 and he also examined Mylvel as P.W. 2. In addition, he marked Exs. P. 1 to P. 9. Learned Magistrate, on examining the evidence, acquitted the respondent. Aggrieved against this, the appellant has come forward with this appeal.

(3.) Learned Government Advocate Mr. R.Karthikeyanappearing for the appellant submitted that the acquittal of the respondent on the following three grounds by the trial Magistrate, is not sustainable. Therefore, this court has necessarily to interfere with the judgment of the acquittal delivered by the trial Magistrate.(1) The Food Inspector examined as P.W. 1 was not authorised to launch the prosecution.(2) Rule 9(j) has been violated.(3) Since P.W. 2 independent witness, has turned hostile, there is no corroborating piece of evidence.