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Public Prosecutor v. Muthu Naicker

Madras High Court

Aug 22, 1962

Judgment

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Analytical Summary of the Opinion

Factual and Procedural Background

This is an appeal by the Public Prosecutor against the acquittal of the accused, Muthu Naicker, under s. 7(1) read with s. 16(1) of the Prevention of Food Adulteration Act (the Act). The prosecution case was that on 17-5-1960 at about 9:35 a.m. at Venkatappa Chettiar Road, Shevapet, the accused had in his possession for sale and sold buffalo milk which on analysis was found to contain 18% added water.

Procedurally, the accused was originally acquitted by the learned Magistrate. The Public Prosecutor appealed that acquittal. During proceedings, a dispute arose about the availability and transmission of the sample bottles taken from the transaction: three ollocks of milk were divided into three sealed bottles by P.W.1 Sundararaj (one given to the accused, one sent initially to the Public Analyst but reported damaged in transit, and the third retained by P.W.1). The third bottle was subsequently sent to the Public Analyst; the Analyst used half the contents for analysis and returned the remainder sealed. The accused filed an application under s. 13(2) of the Act to have the retained sample sent to the Director of the Central Food Laboratory; the learned Magistrate refused that petition and acquitted the accused. This appeal challenges that acquittal and addresses the sample-handling and related legal questions.

Legal Issues Presented

Whether the accused was entitled to be acquitted because the prosecution did not make the entire contents of the bottle retained by P.W.1 available to be sent to the Director of the Central Food Laboratory for further analysis.
Whether the Food Inspector (or prosecution) had the right to send the sample retained by him under s. 11(1)(c)(iii) to the Public Analyst without first obtaining an order of the court, particularly when the sample originally sent was reported damaged in transit.
Whether the quantity of sample (4 oz. versus the 8 oz. mentioned in rule 22 of the Prevention of Food Adulteration Rules) was sufficient for analysis and, if not, whether that deficiency prejudiced the accused.

Arguments of the Parties

Accused's Arguments

The accused pleaded that he personally drew pure milk and that after giving the milk to P.W.1 he was occupied tying kudams to his cycle and was not present when P.W.1 filled the bottles; P.W.2 (the mahazar witness) was also said not to have been present.
The accused (in an application under s. 13(2) and in his statement under s. 342 Cr.P.C.) asserted that the container of the milk given to him was broken, so the sample that was given to him was not available for sending to the Central Food Laboratory.
The learned advocate for the accused contended that the Food Inspector had no right to send the sample retained by him (under s. 11(1)(c)(iii)) to the Public Analyst without obtaining a court order and that the inspector should normally send only the sample mentioned in s. 11(1)(c)(ii).
The accused's advocate also argued (relying on cross-examination) that because P.W.1 testified that the samples were sent by his office, there was no proof that the Public Analyst's report (Ex. P-4) referred to the particular sample taken in this case.

Prosecution's Arguments / Evidentiary Position

P.W.1 Sundararaj and P.W.2 Narasimha Ayyar gave evidence that the accused sold milk to P.W.1; their evidence was held to be corroborative and material discrepancies noted by the Magistrate were found not to be material.
P.W.1 stated he divided the sample into three sealed bottles with preservative: one to the accused, one sent to the Public Analyst (reported broken in transit), and one retained by him; subsequently the retained bottle was sent and the Public Analyst used half, returning the remainder sealed.
The prosecution relied on documentary evidence: Ex. P-1 (the voucher prepared by P.W.1) identifying the sample as No. 1079 of 1960, and Ex. P-4 (the Public Analyst’s report) certifying that Sample No. 1079 contained 18% added water — the court accepted these as establishing identity of the sample analyzed.
The prosecution produced the remaining half bottle that had been returned by the Public Analyst; the court found there was nothing more the prosecution could have done under the circumstances.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court engaged in a step-by-step analysis confined to the facts and statutory scheme as presented in the opinion:

Identification of the primary question: whether failure to make the entire retained bottle available for forwarding to the Central Food Laboratory entitled the accused to acquittal. The court framed this as the central issue before addressing subsidiary points.
Factual reconstruction of sample handling: P.W.1 divided the milk into three sealed bottles with preservative, delivered one to the accused, sent one to the Public Analyst (which was reported damaged in transit) and retained the third. When the first sent bottle was reported damaged, the third retained bottle was sent to the Analyst, who used half for analysis and returned the remainder sealed. The prosecution produced that returned half bottle.
Statutory interpretation of s. 13(2) (in light of s. 11(1)(c)(i) and (iii)): the court held that s. 13(2) contemplates the accused applying to have the sample given to him under s. 11(1)(c)(i) sent to the Director of the Central Food Laboratory and the prosecution applying for the sample retained under s. 11(1)(c)(iii). Although the clause lacks the word "respectively," the court read the provision in the context of the statutory scheme and concluded these are the intended allocations of the respective samples.
On whether one party can compel production of the other's retained sample, the court noted there is no provision in the Act authorizing one party to summon the other's bottle for sending to the Central Food Laboratory, though the court may, in special circumstances, order production.
Examination of the accused’s assertion that his sample bottle was broken: the accused pleaded this fact (including in his s. 342 Cr.P.C. statement), but the court found nothing to substantiate the statement. The court remarked that the accused bore responsibility for breaking the bottle which made it impossible to send his sample to the Central Laboratory.
Assessment of prejudice to the accused: because the Public Analyst had been able to analyse 4 oz. (half the second bottle) and return the remainder in a sealed bottle, the court held the accused was not prejudiced. The prosecution had produced the returned half-bottle; thus, in the court's view, nothing further could reasonably have been done by the prosecution.
Addressing the learned Magistrate's finding: the Magistrate had refused the s. 13(2) petition on the basis that the sample contemplated by s. 11(1)(c)(iii) was not available with the prosecution and that the remnant already produced need not be sent to the Director of the Central Food Laboratory. The appellate court found that conclusion to be factually incorrect: the first sample intended for the Analyst (s. 11(1)(c)(ii) sample) was reported broken in transit, necessitating that the retained sample (s. 11(1)(c)(iii)) be sent and that this was indeed what occurred.
On the point of sample quantity and rule 22: the learned Magistrate had criticized that only 4 oz. was sent when rule 22 suggests 8 oz. The appellate court held the 8 oz. figure in rule 22 is an approximate, not an absolute, requirement; because the Public Analyst was able to give an opinion after analysing 4 oz., the magistrate should have forwarded the 4 oz. remnant (M O 1) to the Central Food Laboratory. If the Central Laboratory had subsequently found the quantity inadequate, the magistrate could then have considered prejudice. The court observed that there are practical situations where only small samples are available and that acquittal should not automatically follow from a small sample size where analysis is possible.
Identity of the analysed sample: despite cross-examination suggesting samples were sent by P.W.1's office, the court relied on Ex. P-1 (voucher) and Ex. P-4 (Analyst's report), which identified Sample No. 1079 of 1960 and matched the report to that sample, removing doubts about the identity of the analyzed sample.
Overall conclusion from the above steps: the court was satisfied that the accused had sold adulterated milk and that procedural or evidentiary defects alleged by the accused did not prejudice his right to a fair contest or create a basis for acquittal.

Holding and Implications

Holding: The appellate court found the accused guilty under s. 7(1) read with s. 16(1) of the Prevention of Food Adulteration Act.

Sentence and immediate consequence: Although convicted on appeal, the court did not impose the usual sentence of fine or imprisonment because this was the accused's first conviction and the appeal had primarily been to correct the learned Magistrate's legal view. Instead, the accused was admonished under s. 3 of the Madras Probation of Offenders Act.

Broader implications: The opinion confines itself to the particular facts and statutory interpretation of sample allocation and handling under the Act. The court emphasized (1) the statutory scheme allocating which party's sample is to be sent under s. 13(2), (2) that small sample quantities may be adequate where analysis is possible, and (3) that lack of the sample originally given to the accused—if caused by the accused breaking it—cannot be used to claim prejudice. The opinion does not purport to establish a new legal precedent beyond these factual and statutory applications; the principal effect is the reversal of the Magistrate's acquittal and conviction of the accused with admonition rather than a formal punishment.

Show all summary ...

This is an appeal by the Public Prosecutor, against the acquittal of the accused Muthu Naicker under s. 7 (1) read with s. 16 (1) of the Prevention of Food Adulteration Act hereinafter referred to as the Act.

The prosecution case is that on 17-5-1960 at about 9-35 a.m at Venkatappa Chettiar Road, Shevapet, the accused was having in his possession for sale and sold buffalo milk which on analysis was found to be adulterated with 18 per cent of added water.

The plea of the accused was that the milk was personally drawn by him and was pure, that after giving the milk to P.W 1 Sundararaj he was engaged in tying kudams to the cycle and that he was not present when P.W 1 filled the bottles and that P.W 2 Narasimha Ayyar, the mahazar witness, was not also present there. P.W 1 has clearly stated that the accused was selling milk in Venkatappa Chettiar Road, that he called him and asked him whether the milk was for sale and that he told him that it was for sale. The evidence of P.W 1 is corroborated by the evidence of P.W 2. The learned Magistrate has referred to some discrepancies in their evidence which are not material. The mere fact that P.W 1 used to inspect the hotel of P.W 2 is no ground for holding that P.W 2 is not an independent witness. There can no doubt that the accused sold the milk to P.W 1.

The main question for consideration in this case is whether the accused is entitled to be acquitted on account of the fact that the prosecution did not make the entire contents of the bottle retained by P.W 1 Sundararajan available for being sent for further analysis by the Central Food Laboratory. It is necessary to state a few facts before dealing with this contention. P.W 1 purchased three ollocks of buffalo milk from the accused and divided it into three parts and sealed them in three separate bottles after adding the necessary preservative. He gave one sealed bottle to the accused, sent another sealed bottle to the Public Analyst and retained the third sealed bottle with him for production in case legal proceedings are taken or for analysis by the Director of Central Food Laboratory under sub sec. (2) of s. 13 as contemplated in s. 11 of the Act. It is clear from the evidence of P.W 1 that the sample sent to the Public Analyst in the first instance was reported to have been damaged in transit. Thereupon he sent the third bottle retained by him to the Analyst. The Analyst used half of the contents of the third bottle and sent the remainder in a bottle with his seal. The accused filed an application before the Magistrate under s. 13 (2) of the Act to direct the Food Inspector to produce the third bottle to be sent to the Director of Central Food Laboratory for analysis. Normally the accused should have requested the court to send the bottle given to him to the Director of Central Laboratory for analysis. It is only for this purpose one bottle of sample milk is given to him. S. 13 (2) of the Act states that the accused vendor or the complainant may make an application to the court for sending the part of the sample mentioned in sub clause (i) or sub clause (iii) of clause (e) of sub-s. (1) of S. 11 to the Director of Central Food Laboratory for a certificate. It is true that there is no word “respectively” at the end of the clause. But having regard to the scheme of the Act and the wording of the section, there can be no doubt that S. 13 (2) contemplates the accused asking the court to send the sample given to him under s. 11 (1) (c) (i) of the Act and the prosecution asking the court to send the sample retained by it under S. 11 (1) (c) (iii) of the Act. In fact there is no provision in the Act for one party summoning the other party to produce the sample bottle of milk kept by the other party for being sent for analysis. It is true that in special circumstances the court may order the production of the bottle retained by the other party for being sent for analysis by the Central Food Laboratory. In the present case the accused pleaded in his application that the container of the milk given to him was broken and therefore the sample milk given to him was not available with him. But there is nothing to substantiate this statement. It is true he has mentioned it even in his statement under S. 342 Cr. P.C

The prosecution has produced the remaining half bottle sent back by the Public Analyst. I fail to see what more the prosecution could have done in the circumstances of this case. The sample bottle sent to the Public Analyst appears to have been destroyed during transit. Hence, the third bottle retained by the Food Inspector had necessarily to be sent in order to obtain the opinion of the Public Analyst whether the milk was adulterated or not. If the entire milk has been utilised for the analysis, nothing further could have been done. But the Public Analyst was able to utilise only half the quantity of the milk contained in the second bottle sent to him and returned the other half in the bottle with his seal. Having regard to this fact, it could not be said that the accused was in any way prejudiced. In fact the accused has to blame himself for having broken the sample bottle given to him and thus making it impossible for sending the said sample to the Central Food Laboratory.

The learned Advocate for the accused contended that the Food Inspector had no right to send the sample retained by him under s. 11 (1) (c) (iii) of the Act to the Public Analyst without obtaining the order of the Court. Normally the food inspector is expected to send only the sample mentioned in s. 11 (1) (c) (ii) of the Act and it has also been done in this case. But as the said milk sample bottle was reported to have been damaged during transit, PW 1 had to send the third bottle retained by him. The Food Inspector can obtain the orders of the magistrate only after filing a complaint in court and he cannot prefer a complaint against the accused without first obtaining the report of the Public Analyst that the milk sold to him was adulterated. Hence the Food Inspector had necessarily to send the third bottle retained by him for obtaining the opinion of the Public Analyst.

The learned advocate for the accused referred to the evidence of P.W 1 in cross-examination that the samples were sent to the Public Analyst by his office and argued that there is no proof that the report of the Public Analyst Ex. P-4 referred to the sample bottle of milk taken in this case. It is true P.W 1 deposed in cross examination that the samples were sent by his office. In chief examination he has clearly stated that Ex P 1 is the voucher prepared by him and that Ex. P. 4 is the report of the Analyst certifying that Sample No. 1079 contained 18 per cent of the added water. Ex. P.1 shows that the sample taken in this case is No. 1079 of 1960. The report, Ex P. 4 shows that the analysis was made only in respect of the said sample. There can be therefore no difficulty about the identity of the sample analysed in this case.

The learned Magistrate did not order the petition filed by the accused under s. 13 (2) of the Act on the ground that the sample contemplated under s. 11 (1) (c) (iii) of the Act is not available with the prosecution and that the one produced into court being the remnant of that already claimed to have been sent to the Public Analyst need not be sent to the Director of Central Food Laboratory as requested in the petition. The learned magistrate is not correct on facts. The first sample sent to the Public Analyst was the one intended for him, namely, one taken under s. 11 (1) (c) (ii) of the Act. On account of the report of the Public Analyst that the bottle sent to him was broken during transit, the remaining sample bottle retained by the Food Inspector P.W 1 as required in s. 11 (1) (c) (iii) of the Act was sent to the Public Analyst.

In his judgment the learned Magistrate refers to the fact that under rule 22 of the Prevention of Food Adulteration Rules 8 oz. of milk is the appropriate quantity to be sent for analysis and that the sending of 4 oz. of milk would not be a proper compliance with the provisions of the rules. The quantity mentioned in rule 22 is only an approximate quantity. It is clear from the evidence in this case that the Public Analyst was able to give his opinion by analysing 4 Oz. of milk. It is the duty of the learned Magistrate to have sent the 4 Oz. of milk contained in M O 1 for analysis to the Central Food Laboratory. If the Central Food Laboratory found any difficulty in analysis of the milk on account of the smallness of the quantity, it is then open to the magistrate to consider whether the accused is in any way prejudiced. There could have been no difficulty for the Central Food Laboratory to have analysed 4 Oz. of milk just as the Public Analyst had done. In fact there may be cases where only a small quantity of milk, namely 4 Oz. or 6 Oz. could be seized from an accused person on account of his trying to destroy the milk and partially succeeding in his attempt when he is apprehended. It could not be said that in such a case, the accused should be acquitted. There is neither logic nor reason in putting forward such an argument. For the foregoing reasons, I am unable to accept the view of the learned Magistrate that the accused was in any way prejudiced in this case.

There can be no doubt that the accused sold adulterated milk. I therefore find him guilty under s. 7 (i) read with s. 16 (1) of the prevention of Food Adulteration Act. But on the question of sentence, I do not want to impose the usual sentence of fine or imprisonment in this case as I am convicting him for the first time in an appeal against acquittal. The accused is a first offender. This appeal has been preferred mainly to correct the wrong view of the law taken by the learned Magistrate. Having regard to these facts, I consider it sufficient to admonish the accused under s. 3 of the Madras Probation of Offenders Act.