FOOD INSPECTOR PARVATHIPURAM MUNICIPALITY Vs. GANTA CHINA SRIRAMULU

JUDGEMENT

(1.) A complaint has been filed against A -1 and A -2 alleging that they were selling the prohibited article Kesari Dal and the same was seized from their shop on 31 -1 -1980. In support of the prosecution case, P.Ws. 1 to 3 were examined. P.W. 2, as is usual in a case like, turned hostile and he has not supported the prosecution case. The learned Judge, on appreciation of the evidence found that P.Ws 1 and 3 are interested witnesses. The view taken by the learned Magistrate is absolutely wrong. Any officer, whether he is a Food Inspector or a Sanitary Maistry, while discharging their official duties and placing the material before the court and are giving evidence, we cannot brand then as interested witnesses. Against the acquittal, the present appeal has been preferred after obtaining leave from this court.

(2.) THE main plea that has been taken by the accused in the lower court is that he has not passed any receipt. To prove the payment that has been made, they need not produce the accounts of the municipal corporation and the view taken by the Magistrate on that aspect is not correct. If we are able to believe the version of P.W. 1 that the payment has been made for the purchase of the articles we can accept the same. But, at the same time, when one of the independent mediators, has turned hostile and that person who wrote the report has not been examined and the Maistry who was examined has not stated about payment and he says that he has not witnessed the same, we cannot say by the solitary statement of P.W. 1 that the amount has been paid. It is in that context we can say that the payment as such has not been proved: Even in cases where the accounts of the municipal corporation are not produced, the evidence of P.W. 1 can be believed provided corroboration is forthcoming from the mediator's report or by eliciting the answers from another mediator who has been examined in this case. We cannot lay down any hard and fast rule because when the accused is denying the fact the burden is wholly on P.W 1 to produce the accounts of the municipal corporation and prove the same. The view taken by the lower court is not correct. But anyhow the payment as such has not been proved. When the independent witness is there and is not examined and when the payment has not been duly made out, I feel the accused is entitled for benefit of doubt and the acquittal can be given on that ground. But, the view taken by the lower court is not correct. Shri Padmanabha Reddy relying on State of Kerala v. Sunder Rai1 argued that in a case where a complaint has been filed by the Food Inspector the Vakalat or memo of appearance must be filed by the Public Prosecutor or by any person representing on his behalf: The Kerala High Court judgment also deals with this filing of complaint by the Food Inspector and it had construed Section 378 (4) Cr. P.C. and the finding is as follows: "Under Section 378 (1) Cr. P.C. the State Government may direct the Public Prosecutor to appeal to the High Court from an order of acquittal. But in the case in hand, the Public Prosecutor has signed the appeal memorandum but no vakalat or memo of appearance is seen filed on behalf of the complainant. As the appeal has not been filed by the Food Inspector, the complainant, it has to be held that it is not maintainable. Preliminary objection raised by the counsel for the respondents deserves acceptance. As the appeal is found to be not maintainable, it is not necessary to consider the merits of the case raised in the appeal."

(3.) IF we read Section 378 Cr. P.C. he must obtain leave of the court, in the case of an acquittal. Whether leave has to be obtained by engaging an advocate or filing of a memo by his advocate is necessary or not we have to consider. If the matter has been, entrusted in his official capacity by following the procedure and that the Public Prosecutor has filed the same it can be said that the party has given instructions to the Public Prosecutor to file the appeal. Under Section 301(1) Cr. P.C. the Public Prosecutor or the Assistant Public Prosecutor incharge of a case may appear and plead without any written authority before any court in which that case is under enquiry trial or appeal. When the Public Prosecutor was however, to appear without filing any memo of appearance and the Public servant, who has filed the complaint requested the Public Prosecutor to file the same, I feel the insistence of the memo of appearance by the Public Prosecutor in a case like this cannot be accepted. If the Food Inspector engages, any other private advocate other than the Public Prosecutor the memo of appearance is necessary. When the individual advocate has not filed a memo of appearance we can say that the appeal has not been duly filed. But in a case where the Public Prosecutor has filed the appeal after getting instructions from the Food Inspector and has not filed any memo of appearance we cannot lay down a rule that the appeal has not duly been filed and so the other party is entitled as a matter of right the dismissal of the appeal. This distinction has not been made in the judgment mentioned referred to above, So I feel, to make it clear that whenever any public servant filed a complaint and in the event of acquittal if he wants to prefer an appeal and he entrusts the same to the Public Prosecutor, the insistence of the memo is not expected and is not desirable in view of Section 301(1) Cr. P.C. If any advocate other than the Public Prosecutor is engaged the insistence of a memo of appearance on behalf of the public servant is a must.