STATE Vs. SAVARI RAJ

JUDGEMENT

(1.) THE accused is a petty shop keeper having his provision store at D. No. 157/2 Aruppukkottai Road, Virudhunagar. He was transacting business in his grocery shop on 20. 9. 1983; On that day, at about 8. 30 a m. , the Food inspector (P. W. 1) inspected the provision-store of the accused. Vanaspathi was kept in open tin for sale in the premises of the shop. He expressed his intention of taking sample of Vanaspathi to the accused. He called one witness, by name Sannasi. He agreed to be a witness for the taking of sample. He served form VI, Ex. P2 notice to the accused. He obtained signature of the accused in ex. P2 for the service of the notice. He purchased 500 gms. of Vanaspathi from the accused for Rs. 9. THE accused gave a cash receipt, Ex. P3. (ii) P. W. 1, then divided the sample into three equal parts and put the sample in three clean bottles. THE samples were sealed in accordance with the Rules. He sent one of the samples to the Public Analyst, guindy, through railway parcel. Ex. P5 is the railway receipt for the despatch of the sample to the Public Analyst. He sent the remaining two samples to the local Health Authority. He received the report of the Public Analyst, Ex. P10 on 24. 10. 1983. THE Public Analyst opined that the sample contained free fat in excess of the maximum permitted limit to the extent of 68%. P. W. 1, then launched prosecution by filing a complaint against the respondent/accused before the Judicial First Class Magistrate, Virudhunagar, under Secs. 7 (1) and 16 (ii) (a) (1) read with Sec. 2 (ia) (a) (m) on 28. 10. 1983. (iii) On the same day, he served the notice under sec. 13 (2) of the Act and also a copy of the report of the Public Analyst on the accused. Ex. P11 and Ex. P12 are respectively the notice under Sec. 13 (2) and the copy of the Public Analyst Report. (iv) THE accused, when questioned stated that the sample that was taken by the Food Inspector on the relevant day in question was not intended for sale and it was kept by him for domestic consumption. He would further say that the sample had been taken by compulsion and consequently the same cannot be considered as sale under the provisions of this Act. (v) THE learned Magistrate, on a consideration of the materials produced before him and after hearing the arguments of the Public prosecutor as well as the counsel for the defence, came to the conclusion that the accused was not found guilty of the charges framed against him and consequently, acquitted him giving rise to this appeal, by this state.

(2.) THE learned Magistrate, rendered the verdict of acquittal on the following grounds: (a) P. W. 1, the Food Inspector did not state in his evidence that he closed the bottle with cork which is a violation of the mandatory provision of Rule 14 of the Rules framed under the Act. (b) P. W. 1, did not also state that he tightly closed the bottle with cork which is also a violation of mandatory provision of Rule 14 of the Rules framed under the Act. (c) THE total quantity of sample taken, viz. , 500 gms. of vanaspathi had been divided into three'equal parts and they were put into three separate horlicks bottles of the capacity of 500 gms. each. THE presence of air in the vacant space inside the bottle would have deteriorated the quality of the sample. (d) THE sample instead of being put in a packet had in fact been put in a wooden box and sent to the Analyst for the purpose of analysis which is violation of Rule 17 (a) of the Rules framed under the Act. (e) THE sample that was taken from the premises of the accused was one obtained by way of compulsion and lastly. (f) THE non-preparation of mahazar for the taking of the sample is also fatal to the case of the prosecution.

(3.) WITH regard to the question of preparation of Mahazar for taking sample, I am of the view that there is no provision under the Act stating that sample has to be taken under the cover of a mahazar. Taking of a sample cannot at all be considered as a seizing of an article from the business premises. What the Food Inspector does when he feels that the provisions of the act had been violated by the particular dealer is, he simply takes sample of the item of food for the purpose of analysis, by serving a notice in Form VI, that too after paying the price for the same. The evidence of P. W. 1, discloses that he expressed his intention of taking sample on the relevant day in question and thereafter alone he took the sample of Vanaspathi from the shop of the accused. He also paid the price for the sample so taken. These aspects of his evidence are amply corroborated by Exs. P2 and P3 bearing the signature of the accused. In such circumstances, it is rather perverse for the Magistrate to state that the non-preparation of a mahazar for taking sample, had tilted the case of the prosecution, to such an extent entitling the accused to the benefit of acquittal.