KURRA KANKA SUNDER RAO Vs. STATE REPRESENTED BY FOOD INSPECTOR, TENALI MUNICIPALITY, TENALI, GUNTUR DISTRICT

JUDGEMENT

(1.) The petitioner was convicted of the offence punishable under Sections 16(1) and 7 read with Sec. 2(l)(a) and (1) of the Prevention of Food Adulteration Act by the Judicial First Class Magistrate, Tenali. in C.C. No. 24/77 and was sentenced to pay a fine of Rs. 1000.00 and in default to undergo RI for a period of 6 months and also to undergo RI for 6 months. The appellate court has confirmed the conviction of the petitioner. Initially the petitioner and his father A-2 were tried for the above offences and the trial court convicted both the father and the son, but the appellate court acquitted the the father who is A-2 in the case. Therefore this revision is by A-l. The case of the prosecution is that the Food Inspector Tenali Municipality visited the shop of the accused on 22-12-76 at about 11-30 a.m. and found a tin containing 2 kg. of turmeric powder. He purchased 900 grams of turmeric powder after complying with the necessary formalities as envisaged under the Food Adulteration Act and the Rules and divided it into 3 equal parts and filled it in 3 dry clean and empty bottles, labelled and sealed them. He sent one bottle to the Public Analyst who opined as per Ex.P.5 that the sample contained as insoluble at 2.4840% and since the percentage is 1.5% the sample was adulterated. P.W 1 kept the two other bottles with the Public Health authorities. After the receipt of the report of the Analyst, copy of the same along with the intimation was sent to the accused as envisaged under Sec. 13(2) of the said Act and the prosecution was launched. During this prosecution the accused sent one of the sample bottles kept with the Public Analyst authorities to the Director of Central Food Laboratory who opined as per Ex.P. 8 that the sample contained 2.2% of insoluble ash. The trial court convicted A-l and A-2 and sentenced them as stated above. Both the accused appealed and the appellate court acquitted A-2 but confirmed the conviction of A-l.

(2.) In this revision, Mr. Prakasa Rao the learned Counsel for the petitioner contends that the turmeric powder as is well known in the area in wide the sample was taken is also used for decorating the entrance of the house. I has been the continuous plea of the accused from the begining that this turmeric powder which was sold to P.W. 1 as sample was not for human consumption but it was meant for decorating purposes and therefore, he submits that this lower courts fell into an error in convicting the accused as there was not enough evidence on behalf of the prosecution to show that this turmeric powder which was taken as sample was also being sold as food for human consumption. Mr. Prakasha Rao has endeavoured to distinguish a ruling of a Bench of this court reported in Public Prosecutor Vs. B. Ramchandra Raju 1976 (1) APLJ 333 in which was one of the Judges. So far as this contention is concerned regret cannot accede to this contention and I am bound by the ruling of the Bench of this court because it has to be doted that turmeric powder as a general rule is used for human consumption and when that is accepted, no amount of plea by the accused that this turmeric powder was not being sold for human consumption can affect the case of the prosecution. If any commodity which is not generally used for human consumption is taken as a sample then a food seller would escape liability by giving a clear notice in his shop that particular commodity was not being sold for human consumption which is not the case here. 1 therefore, cannot accept that contention. Mr. Prakasha Rao next contended that it is now fairly well settled that where the quantity of sample taken is less than the quantity prescribed under the Food Adulteration Rules then the accused is liable to an acquittal. The learned Advocate contends that taking excess of sample than the prescribed quality would also entitle the accused to an acquittal. His argument is that as per Ex.P. 8 the insoluble ash to the extent of 2.2% was found and the permitted percentage is 1.5% provided the sample taken is to the extent of 200 gram In the instant case submits the learned Advocate, that the Food Inspector ha taken a sample more than 200 grams. Therefore, it was incumbent that there would be excess percentage than the permitted percentage. I regret cannot accede to this contention also because percentage cannot be exceeded by taking excess sample or decrease by taking sample less than the prescribed quantity. Percentage is on the basis of the quantity that would be there in case of 100 unit. Therefore when the sample is in excess it cannot be said the increase in the percentage is due to the increase in the quantity of the sample taken. I, therefore see no force in this contention also. I, confirm the conviction and sentence of the petitioner and dismiss this revision. Revision dismissed.