PUBLIC PROSECUTOR Vs. THUMUGUNTA SESHAIH

JUDGEMENT

(1.) This appeal is against the acquittal of the respondent by the learned Sessions Judge of Guntur of an offence under the Prevention of Food Adulteration Act (XXXVII of 1954). Against the respondent who is a owner of retail shop, it is alleged that he had in his possession red-gram dhall for sale and that it was misbranded. At about. 10-00 A.M. on 23-10-1959, the Food Inspector (P. W. 1) went to the shop of the respondent at Ongole and having, purchased three giddas of this commodity and paid therefor and obtained the receipt (Exhibit P-2), he sampled the same and sent one of the samples to the Public Analyst. After the receipt of the report of the Analyst (Exhibit P. 3), the Food Inspector caused the respondent to be prosecuted for an offence under Section 16(1) (ii) read with Section 7 of Act XXXVII of 1954. The accused raised several defences. He stated that his son-in-law was looking after the shop and he could not, therefore, be made liable. He put up the case that the dhall so seized belonged to D.W. 1 who merely left it in his shop and therefore the same did not belong to him; nor did he intend that dhall to be sold. He raised the plea that no mediators were called in at the time of the seizure of the commodity and as there was violation of the provisions of Section 10(7) there could be no conviction in respect of that food article. The Additional Munsit-Magistrate, Ongole, applied the procedure of a warrant case. In trying the accused as required tinder Section 16(2) or the Prevention of Food Adulteration Act, since there was a prior conviction of the accused. He rejected the defence or the accused and found that the prosecution had made out the case as alleged by it. The Magistrate therefore convicted the accused and sentenced him to undergo simple-imprisonment for six months and to pay a fine of Rs. 2,000.00. The accused thereafter preferred an appeal to the Sessions-Court, Guntur. The Sessions Court allowed it and acquitted the accused. The learned Public Prosecutor on behalf of the State has filed this appeal and questioned in this Court the order of acquittal by the Sessions Court.

(2.) In support of the order of acquittal by the lower Court, the Sessions Judge found that while P.W. 1 inspected the shop, seized the redgram dhall, sampled it and submitted the article so sampled for analysis to the Public Analyst, he did not call or make two persons to be present and take their signatures as required under Section 10(7). He also held that there was a duty cast upon the Food Inspector to seize the articles only when he suspected them to be adulterated or misbranded, and that the seizure in the instant case of the redgram dhall cannot be said to be after any suspicion has been roused in the mind of P. W. 1. In this view, the learned Sessions Judge thought that there was violation of the provisions of Rule 9(c) framed under that Act. He also found that as, in his view redgram dhall is not prohibited from being coloured, it cannot be said to be misbranded in this case as the yellow colour, of the seized article should be attributed to Tartrazine, a coal tar dye which is permitted to be used in accordance with Rule 28.

(3.) The learned Public Prosecutor attacked the view cf the lower Court that the seizure of any article by the food Inspector unless he suspected it to be adulterated or misbranded, as wrong. He relied upon Sub-section (4) of Section 10 end argued that a Food Inspector as a preliminary to the seizure of the article need not make out that he suspected the article to be adulterated or misbranded. Sub-section (4) reads: