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State Of Kerala v. Soman
Factual and Procedural Background
On 29-1-1981 at 1:30 PM the Food Inspector of Kallara Panchayat (Pw.1) inspected a provision shop (Building No. C-3 1099(2)) adjoining a ration shop within Kallara Panchayat and purchased a sample of cumin seeds from the shop. The Food Inspector prepared a mahazar (Ext. P4) signed by the accused and witnesses, sent one part of the sample to the Public Analyst and the remaining parts to the Local Health Authority (L.H.A.). The Public Analyst's report (Ext. P7) recorded that the sample contained 78.2% cumin seeds, 13.5% non-edible seeds and 8.3% extraneous matter and concluded the sample did not conform to the prescribed standard under item A.05.09 of Appendix B of the Prevention of Food Adulteration Rules.
The Food Inspector laid a complaint under S. 7(i) read with S. 16(1)(a)(i) of the Prevention of Food Adulteration Act. The L.H.A. sent an intimation with a copy of the Public Analyst's report under S. 13(2) (Ext. P8) and postal acknowledgment (Ext. P9) was produced. The trial court framed charges; the accused pleaded not guilty. Prosecution examined four witnesses and tendered exhibits (Exts. P1–P10). Defence examined two witnesses. The trial court convicted the accused, sentencing him to rigorous imprisonment for six months and a fine of Rs. 1,000 (with default imprisonment of three months). On appeal (Criminal Appeal No. 260 of 1981) the Sessions Court, Trivandrum, acquitted the accused on the ground of violation of Rule 18 of the Prevention of Food Adulteration Rules. This Court reviewed the matter in Calendar Revision, issued notices, and heard the prosecutor and counsel for the accused.
Legal Issues Presented
- Whether the Sessions Court's acquittal of the accused on the ground of non-compliance with Rule 18 of the Prevention of Food Adulteration Rules was legally tenable.
- Whether an intimation under S. 13(2) of the Prevention of Food Adulteration Act that omits the case number (or similar case particulars) amounts to non-compliance of that mandatory provision and vitiates the prosecution.
- Whether there were infirmities in the sampling procedure or in establishing the accused's connection with the sampled provision shop sufficient to create reasonable doubt warranting an acquittal.
Arguments of the Parties
Prosecution's Arguments
- The Food Inspector (Pw.1) was competent to take samples and to lay the complaint; this is evidenced by Pw.1's testimony and Ext. P1 (notification).
- The sample was analyzed by the Public Analyst who produced Ext. P7 showing the sample did not conform to prescribed standards; therefore it constituted an adulterated sample under S.2(1a)(m) of the Act.
- Relevant documentary records (Form No. 7/Ext. P5, Ext. P7's observations about the seal and packet, and mahazar numbers) demonstrate compliance with the requirements of Rule 18 even if Pw.1's oral evidence was vague, so the Sessions Judge erred in acquitting on that ground.
Accused's Arguments
- Defense contended that the Sessions Court's acquittal could be sustained because the intimation (Ext. P8) sent by the L.H.A. did not include the number of the case in which the person figured as accused, thereby violating the mandatory requirement of S.13(2) of the Act (and Rule 9A was invoked in argument).
- The defence also advanced multiple factual challenges to the prosecution case: that the accused had no connection with the provision shop (the licence for the ration shop was in his name, not the provision shop), that some documentary and attestation particulars (signatures on mahazar, presence of independent witnesses) were inconsistent or improbable, that the Food Inspector did not inspect records in the shop, and that witness evidence raised reasonable doubt about sampling and the accused's connection to the shop.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Food Inspector v. Mohan (1979 KLT 560) | Principle that documentary evidence and the Public Analyst's observations can be relied upon to establish compliance with procedural requirements even if the inspector's oral testimony is vague; ambiguous or incomplete oral testimony does not nullify clear documentary proof of compliance. | The court applied this principle to hold that Ext. P7 (Public Analyst's report), Ext. P5 (Form 7 memorandum) and related documentary entries showing numbers and seals demonstrated compliance with Rule 18 despite Pw.1's imprecise testimony. Thus the Sessions Judge's acquittal on Rule 18 ground could not stand. |
| Chockalingam v. Food Inspector (1981 KLT 628) | Rule that an intimation under S.13(2) must actually inform the accused of his right to apply to the court within ten days to have a sample sent to the Central Food Laboratory; merely inviting attention to S.13(2) is insufficient and amounts to non-observance of the provision. | The court relied on and quoted the decision to show the importance of proper intimation. It distinguished the present case because the L.H.A. here named the court and informed the accused to apply within ten days; the shortcoming of omitting the case number did not, on the facts, amount to failure to inform of the right itself. |
| Food Inspector v. Sadasivan | Principle that prosecution/criminal proceedings are deemed instituted when a complaint is filed before a magistrate; a magistrate's subsequent delay in numbering or taking cognizance does not change the date on which prosecution is considered instituted. | The court used this authority to explain that delays in magistrate courts numbering complaints are common; thus absence of a case number in the L.H.A.'s intimation may be practically unavoidable and does not necessarily render the intimation defective under S.13(2). |
| Crl. R.C. No. 9 of 1980 (1981 KLT Short Notes p.81) | Held non-compliance with S.13(2) where there was no evidence that the copy of the Public Analyst's report and intimation required by S.13(2) had been sent to the accused; emphasised the valuable right conferred and the need for compliance. | The court distinguished that decision because in the cited case no copy of the report was shown to have been sent and the intimation evidence was absent. Here, by contrast, a copy (Ext. P8) and postal acknowledgment (Ext. P9) were produced. |
| Crl. Appeal No. 338 of 1979 | Decision sustaining an acquittal for infraction of S.13(2) where the intimation copies exhibited suspicious features and material particulars (case number, date of filing) were missing or incorrectly stated. | The court noted that in that case the absence of the report copy and suspicious intimation features justified the acquittal; it distinguished that case from the present one where the report copy was sent and the intimation plainly stated the right to apply. The court did not treat the omission of the case number here as a mandatory infraction. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise legal analysis addressing the principal contentions:
- Competency and result of analysis: The Court accepted that the Food Inspector (Pw.1) was competent to take samples and to lay the complaint (supported by Ext. P1). Ext. P7 (Public Analyst's report) established that the sample was adulterated under the Act's definition (S.2(1a)(m)).
- Rule 17/18 compliance dispute: The Sessions Judge had acquitted the accused on the basis that Rule 18 was violated because Pw.1's evidence was unclear about sending the memorandum copy and specimen seal impression to the Public Analyst separately. The Court analysed the documentary materials: Ext. P7 included the Public Analyst's observations that the copy of the memorandum and specimen seal impression were separately sent and that the packet bore the number mentioned and the seal was intact (matters within the Public Analyst's duties under Rule 7). Ext. P5 (Form 7) also recorded the sample number and stated a copy of the memorandum and specimen impression were being separately sent. The Court held that these documentary items, which were not challenged in cross-examination and for which the Public Analyst was not called to rebut, demonstrably satisfied the requirements of Rule 18. Relying on Food Inspector v. Mohan, the Court concluded that vague oral testimony by the inspector did not override clear documentary proof of compliance, and therefore the Sessions Judge was incorrect to acquit on that ground.
- S.13(2) intimation and omission of case number: The accused's counsel argued that Ext. P8 did not mention the case number and thus violated the mandatory text of S.13(2). The Court analysed S.13(1)–(2) and Rule 9A, and considered prior authority (notably Chockalingam) that required the L.H.A. to actually inform the accused of the right to apply within ten days (mere reference to the statute is not enough). However, the Court observed that neither S.13(2) nor Rule 9A expressly requires the intimation to state the case number. The Court emphasised practical realities: magistrates sometimes delay numbering complaints; the Food Inspector must not wait indefinitely to inform the L.H.A., and the L.H.A. cannot be compelled to wait for a case number. The Court held that omission of the case number, while undesirable, does not automatically amount to non-observance of S.13(2) where the intimation otherwise identifies the court and clearly informs the accused of the ten-day right. The Court relied on Food Inspector v. Sadasivan to stress that prosecution is institutionally deemed to occur when the complaint is filed, even if the court delays numbering, and therefore the absence of a case number in the intimation does not by itself disable the accused from exercising his right.
- Other infirmities and reasonable doubt on sampling/connection: The Court turned to other factual infirmities raised by defence which had not been adequately considered by the courts below. These included evidence suggesting the accused might not be connected to the provision shop (licence evidence, testimony that the shop belonged to another person), irregularities and improbabilities in the sampling process (presence of consumers not called as witnesses, two road witnesses called and signing inconsistently, peon present but not attesting), and conflicts about signatures on the mahazar. Taking the totality of these facts and circumstances, the Court found a reasonable doubt about (a) whether the sampling was carried out strictly in accordance with law and (b) whether the accused was properly connected with the sampled shop. On that ground — not the Rule 18 point — the Court held that acquittal had to be sustained.
- Disposition: After analytical consideration, the Court disposed of the Criminal Revision by sustaining the accused's acquittal, albeit for different reasons than those relied upon by the Sessions Judge.
Holding and Implications
Holding:
ACQUITTAL OF THE ACCUSED IS SUSTAINED.
Explanation of the holding:
- The Court held that the Sessions Judge was wrong to base the acquittal solely on an asserted violation of Rule 18 where documentary evidence (Form 7/Ext. P5, Ext. P7 and related records) established that the copy of the memorandum and specimen seal impression had been separately sent to the Public Analyst and that the packet bore the correct number and an intact seal.
- Nevertheless, on a full review of the record the Court found reasonable doubt about the sampling procedure and the accused's connection to the provision shop (issues of signatures, witness attendance, licensing and ownership). Because these factual infirmities create reasonable doubt, the Court sustained the accused's acquittal on that ground.
Implications
- Direct effect: The accused remains acquitted; the Criminal Revision is disposed of accordingly.
- Procedural clarification: The Court clarified that while it is desirable for the L.H.A.'s intimation under S.13(2) and Rule 9A to include particulars such as the court and case number, neither S.13(2) nor Rule 9A expressly mandates inclusion of the case number and its omission alone does not necessarily vitiate the accused's statutory right to apply to the court within ten days. The Court stressed the importance of actually informing the accused of the right (per Chockalingam), but distinguished mere omission of case number from a substantive failure to inform.
- Practical admonition: The Court noted practical realities — delays in magistrate courts in assigning complaint numbers — and urged magistrates to avoid such delays because they may cause inconvenience and prejudice. The Food Inspector should not unduly delay informing the L.H.A., nor should the L.H.A. be required to wait indefinitely for a case number before sending intimation.
- No expansion of legal doctrine beyond the opinion: The decision applies and distinguishes prior authorities to the facts at hand and resolves the case on factual grounds (reasonable doubt as to sampling and connection). The Court corrected the legal basis for the Sessions Judge's decision but ultimately sustained the acquittal for different factual reasons.
This summary is prepared strictly from the contents of the provided opinion and does not add or infer facts beyond that text.
1. The Food Inspector, Kallara Panchayat in Nedumangad Circle, inspected a provision shop in Building No. C-3 1099(2) adjoining a ration shop, ARD. 181 and situated within the limits of Kallara Panchayat, on 29-1-1981 at 1-30PM. and proceeded to purchase a sample of cumin seeds exhibited in the shop for sale, in accordance with the provisions of law. The accused sold the sample to the Food Inspector and after dealing with the sample in accordance with law, Ext. P4 mahazar was prepared and got signed by the accused and the witnesses. One of the samples was sent to the Public Analyst for analysis and the rest sent to the Local Health Authority. The Public Analyst in Ext. P7 report stated that the sample contained 78.2% cumin seeds, 13.5% of nonedible seeds and 8.3% of extraneous matter, including dust, stones, lumps of earth, chaff, etc. and therefore the sample did not conform to the standard prescribed for cumin seeds under item A.05.09 of Appendix B of the Prevention of Food Adulteration Rules (for short the ‘Rules’). The Food Inspector laid the complaint against the accused for offences under S. 7(i) read with S. 16(1)(a)(i) of the Prevention of Food Adulteration Act (for short the ‘Act’) and the local health autority Concerned (hereinafter referred to as “L.H.A” for brevity) sent a copy of the report with intimation under S. 13(2) of the Act, Ext. P8, to the accused, for the receipt of which the postal acknowledgment is Ext. P9. In due course the trial court framed charges against the accused as aforesaid and be pleaded not guilty. Prosecution examined four witnesses and marked Exts. P1 to P10 series. On behalf of the defence two witnesses were examined. Overruling the contentions of the accused, the trial court convicted him for the offence alleged and sentenced him Co. undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and in default to suffer rigorous imprisonment for three months. In Criminal Appeal No. 260 of 1981 preferred by the accused, the Sessions Court, Trivandrum acquitted him on the ground of violation of rule 18 of the Rules. On receipt of the Calendar by this Court, it was felt that the acquittal was contrary to law and therefore notice was issued to both sides informing them that the matter is being taken up in Calendar Revision. The prosecutor as well as the counsel for the accused have been heard.
2. There can be no doubt about the competency of the Food Inspector, Pw. 1 to take samples and to lay the complaint and the same is proved by Pw. 1 read in the light of Ext. P1 notification. There could also be no doubt that the sample sent by the Food Inspector to the Public Analyst was caused to be analysed by the Public Analyst, who issued Ext. P7 report. Ext. P7 report indicates that the sample did not conform to the standard prescribed by the rules. Therefore, the sample must be treated as an adulterated sample within the meaning of S. 2(1a)(m) of the Act. The learned Sessions Judge acquitted the accused on the ground that Rule 18 of the Rules was violated.
3. Rule 17 prescribes the manner in which one part of sample is to be despatched to the Public Analyst and the remaining parts of samples to be despatched to the L.H.A The sample to be sent to the Public Analyst must be accompanied by a Memorandum in Form No. 7. Two copies of the Memorandum are also to be sent to the L.H.A Rule 18 requires that copy of the memorandum and the specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or to be delivered to him or to any person authorised by him. The learned Sessions Judge pointed out that evidence of Pw. 1 on this point is not clear and when two views are possible, the benefit of doubt should go to the accused. This is directly contrary to the law as laid down by a Division Bench of this Court in Food Inspector v. Mohan (1979 KLT. 560). Ext. P7 report shows that a copy of the memorandum and the specimen impression of the seal were separately sent by the Food Inspector and the Public Analyst found the same to bear the number mentioned in the Memorandum and the packet properly sealed and fastened with the seal intact and unbroken. These observations of the Public Analyst are made by him in the discharge of his duties under Rule 7 of the Rules. Ext. P5, copy of the Form 7 Memorandum also mentions the sample taken, the number given, the name of the offender and other particulars, besides stating that copy of this memorandum and the specimen impression of the seal used to seal the packet was being separately sent to the Public Analyst. The number of the sample as mentioned in these records tallied with the number mentioned in the mahazar and other documents. These items of evidence clearly show that all the provisions in Rule 18 had been complied with. The fact that the Food Inspector gave vague evidence about it or did not refer to this aspect of the matter does not take away the value of these items of evidence referred to. It is also significant to note that these items of evidence were not challenged during the cross-examination of Pw. 1. No attempt was made by the defence to cite the Public Analyst as a witness to challenge the averments contained in his report. The particulars in the report of the Public Analyst in this regard and other evidence referred to can safely be acted upon. The ground on which the acquittal was rested by the learned Sessions Judge cannot, therefore, stand.
4. However, according to the learned counsel for the accused, the acquittal can be sustained on certain other grounds. The learned counsel contended that Ext. P8 intimation sent by the L.H.A to the accused did not contain the number of the case in which he figured as the accused and therefore, there has been violation of the mandatory provision in S. 13(2) of the Act.
5. Sub-section (I) of S. 13 requires the Public Analyst to deliver in the prescribed form a report to the L.H.A regarding the result of the analysis. Sub-section (2) states that on receipt of the report indicating that the article of food is adulterated, L.H.A shall, after institution of the prosecution against the accused, forward in the prescribed manner a copy of the report of the Public Analyst to him informing him that if be so desired, he may make an application to the court within a period of 10 days from the date of receipt of the copy of the report to get the sample kept by the L.H.A analysed by the Central Food Laboratory. The other provisions in S. 13 deal with the manner in which the accused can exercise his rights, and duties of the court in that behalf. Rule 9A of the P.F.A Rules requires that L.H.A shall immediately after the institution of the prosecution forward a copy of the report by registered post or by band to the accused.
6. According to the learned counsel for the accused, unless the number of the casein which the person is figured as accused is mentioned in the intimation, he cannot know in which court be has to submit the application as contemplated in S. 13 of the Act and that would disable him from exercising his valuable right under S. 13 of the Act. Neither sub-section (2) of S. 13 nor Rule 9A of the Rules requires the L.H.A to state in the intimation the number of the case in which the person figures as the accused. It is no doubt mandatory for the L.H.A to send a copy of the report and give an intimation to the accused as contemplated in the section and the rule. But the provisions of the law do not insist that the number of the case must be mentioned therein. Therefore, the failure to mention the number of the case cannot be regarded as a violation of the mandatory provision contained in S. 13(2) of the Act.
7. Learned counsel for the accused relied on certain observations of this Court in Chockalingam v. Food Inspector (1981 KLT. 628). That was a case where L.H.A while sending the copy of the report to the accused did not inform him that he had a right to apply to the court within ten days from the date of the receipt of that intimation to send one of the samples with L.H.A to the Central Food Laboratory for analysis. The intimation only invited the attention of the accused to S. 13(2) of the Act. Dealing with this aspect of the case, I stated as follows:
“The L.H.A did not inform the revision petitioners of their right to move the court to send a sample to the Central Food Laboratory within 10 days from the date of receipt of the information. He only invited their attention to S. 13(2) of the Act. “To invite their attention to S. 13(2) of the Act” does not amount to informing them about the right which they have under S. 13(2) of the Act, It may be that when an accused received such an information, he may go to a lawyer and consult him and take appropriate steps. It is also possible that be may not seek legal advice at all or may not seek legal advice within ten days. As I read the provisions of S. 13(2) of the Act on reading the information given by the L.H.A the vendor without anything more and without legal assistance, must be able to realise that he has a valuable right vested in him of moving the court in an appropriate way. The fact that the Legislature has cast such a burden or duty on the L.H.A of giving information to the vendor necessarily reveals the Concern which the Legislature has in this matter. Of course, generally speaking, every person is expected to know the law. But even in the face of such a general principle of law, the Legislature has directed that the L.H.A must give such specific information to the vendor. Hence it is not open to the Prosecution to rely on the general principle that every person is expected to know the law. Failure to inform the vendor of his right to move the court within ten days would amount to non-observance of S. 13(2) of the Act. A statement inviting vendor's attention to S. 13(2) of the Act is no compliance at all, substantially or otherwise, of the provisions of S. 13(2) of the Act. Such a statement does not have the effect of informing him of his right to move the court in ten days. Unless he is so informed, he may not be aware of his right and consequently he looses the opportunity of exercising the right.”
8. The case referred to above, as stated earlier, was a case in which the intimation as required under S. 13(2) of the Act was not given. L.H.A was content with the inviting of accused's attention to S. 13(2) of the Act. That is not what is provided by S. 13(2) of the Act. That did not even amount to substantial compliance of the provision of law. If within ten days from the date of the receipt of the intimation, the accused did not consult a lawyer, the right given to him by law would be jeopardised. But, such a consequence will not result merely because the number of the case is not mentioned in the intimation. L.H.A had mentioned in this case the name of the court in which the prosecution is launched against the accused herein. Intimation also clearly stated that the accused should apply to the court within ten days of the receipt of the intimation, if be so desires, to send one of the samples to the Central Food Laboratory for analysis. It was open to the accused even without the help of a lawyer to go to that court and file an application. In such circumstances, no court can reject such application on the ground that the number of the case is not mentioned in the application. If the accused makes enquiries he can very well come to know the number of the case. Even if he is not able to know the number of the case, he can state in his application that he is not aware of the number of the case. Then, it will be the duty of the court to find out the number and treat his application as valid application as long as the relevant provision of law does not specifically state that the number of the case must find a place in the intimation, the court cannot hold that it is mandatory to mention the number of the case in the intimation under S. 13(2) of the Act. This is not to say that if the L.H.A is aware of the number of the case, the number of the case need not to be stated in the intimation. If the L.H.A is aware of the number of the case, it is always desirable that the number of the case is also stated in the intimation under S. 13(2) so that no inconvenience would be caused to the accused in exercising his right under that provision. However, the failure to state the number of the case in the intimation does not amount to the infraction of S. 13(2) of the Act.
9. The court while interpreting provisions of law should not lose sight of practical aspects and the realities. There are repeated complaints by Prosecutors and Food Inspectors that in courts of Magistrates, complaints filed by Food Inspectors are not numbered immediately, but are kept pending for a number of days. This is certainly an undesirable practice. However, such a practice has developed in the course of years, perhaps on account of the pressure of work or with an eye on the statistical picture of the court for a particular month. These reasons are not sufficient to justify such an undesirable practice. Courts of Magistrates would do well to see that complaints filed by Food Inspectors or others are taken up for consideration immediately and numbers are assigned to them. The Food Inspector on instituting the prosecution has to inform the L.H.A about it to enable L.H.A to give intimation to the accused as required by law. Food Inspector cannot wait long for the court to assign a number to the case before giving information to the L.H.A If the court waits for 10 days or two weeks and that happens often, Food Inspector cannot delay in performing his duty to inform the L.H.A that he has launched prosecution against the accused and the L.H.A also cannot wait indefinitely to know the number of the case before sending intimation to the accused in accordance with law. Sometimes, these delays may work against the interests of the accused and therefore in a number of cases it may not be possible for the Food Inspector to inform the L.H.A about the number of the case or for L.H.A to state tile number of the case in the intimation to be sent to the accused. It is the application of this reality that caused the Legislature and the rule making authority to refrain from stating that the number of the case must be mentioned in the intimation. That being so, the court cannot hold that it is mandatory to mention the number of the case in the intimation to be sent to the accused, however desirable it may be that it should be done.
10. In Food Inspector v. Sadasivan, Kader, J. had occasion to observe as follows:
“……………After having duly received a complaint alleging commission of an offence against a particular person, a magistrate may at once take cognizance of the offence or may keep it pending with him due to various reasons. Suppose after receiving a complaint disclosing commission of an offence against a particular person a magistrate by oversight keeps it on his file for days and takes cognizance only thereafter, it cannot then he said that the complaint or prosecution was instituted only on the date on which the Magistrate took cognizance of the offence or summons was issued to the accused……………It is, therefore, clear from the above that as soon as a complaint as defined in the Code of Criminal Procedure is filed against an accused before a magistrate with a prayer that necessary action be taken against him, it must be deemed that the prosecution or criminal proceedings have been instituted against that accused.”
11. The learned counsel for the accused placed reliance on the observations of this court in Crl. R.C No. 9 of 1980 and Crl. Appeal No. 338 of 1979 in support of his contention that it is mandatory to mention the number of the case in the intimation under S. 13(2) of the Act. The former decision is reported in 1981 KLT. Short Notes Page 81. In that case a copy of the report of the Public Analyst was sent to the accused, but it was not shown that along with the report intimation or communication as contemplated under S. 13(2) of the Act had been sent. The copy of the intimation was not produced before the court. The Food Inspector in his evidence also did not refer to any such communication. Therefore, it was held that there was non-compliance with S. 13(2) of the Act. It was argued before the Court that S. 13(2) was only directory. This argument was negatived emphasising the valuable nature of the right conferred by this provision on the accused. In dealing with this aspect of the case, Janaki Arama, J. made the following observations:
“………The person from whom the sample is taken wilt be in a position to exercise the right to have the sample analysed only on receipt of the information regarding the fact of filing the complaint and the particulars like the court, when it is filed and the number of the case. Therefore the supply of the information mentioned in S. 13(2) of the Act is not an empty formality…………….”
12. There can be no doubt that the accused will be in a better position to make an application within the time prescribed, if he has the particulars like the name of the court where the case is to be filed and the number of the case filed against him, etc. I have already indicated that it is desirable that all these particulars must be mentioned in the intimation. But, the learned Judge has not stated that the mandate of S. 13(2) of the Act requires mention of the number of the case in the intimation or that the failure to do so would amount to infraction of S. 13(2) of the Act.
13. In Crl. A. No. 338 of 1979, it was found that the ground suggested by the first appellate court to acquit the accused was not justified, but the acquittal was sustained on the ground of infraction of S. 13(2) of the Act. The matter was dealt with in the following manner by Kader, J.:
“………The counsel cited a decision of this Court in Crl. R.C No. 9/80 reported in 1981 K.L.T Short Notes page 81 and it was pointed out that there is no evidence in the case that a copy of the report of the Public Analyst was sent to any of the accused as enjoined under S. 13(2) of the Act and Rule 9A of the Rules framed under the Act. This fact in not disputed by the counsel for the appellant, although he made an attempt to show that Pw. 1 has stated that intimation was sent under S. 13(2). But, admittedly there is no evidence that a copy of the report was sent to any of the accused. It was further pointed at on behalf of the respondents that the intimation purported to have been sent to the accused was quite vague and ineffective and not in any way sufficient to enable the accused to file a petition challenging the correctness of the report of the Public Analyst before the court where the case then was pending. Ext P11 series are said to be copies of intimation sent to the accused. These intimations are dated 15-12-1977. But, they are seen to have been dispatched on 14-12-1977. The material particulars of the case are not mentioned in any of these intimations. The number of the case nor the date of the filing of the complaint is mentioned in any of these intimations. Although the name of the court is mentioned, the date of filing of the complaint is shown as 6-12-1977. But it is not now disputed that the complaint was actually filed on 9-12-1977. The charge number also is not mentioned in any of these intimations. The decision relied on by the counsel squarely, applies to the facts of this case. The acquittal of the respondents has, therefore, to be sustained on this ground…………………………….”
14. It is significant to note that copy of the report of the Public Analyst was not sent to the accused in the case referred to above. The copy of the intimation produced in court had several suspicious features regarding the mention of the date of the filing of the complaint and other particulars. Failure to send a copy of the report of the Public Analyst itself, in the circumstances, would have been sufficient ground to sustain the acquittal. Suspicious nature of the intimation also added to this factor. The learned Judge, no doubt, referred to the non-mention in the intimation of the number of the case and the date of filing of the complaint. But, in the passage extracted above, it is not suggested that it is mandatory on the part of the L.H.A to state the number of the case or the date on the filing of the complaint in the intimation to be given to the accused as already pointed out, neither S. 13(2) of the Act nor Rule 9A of the Rules require the number of the case to be mentioned. I have already indicated that it may not always be possible to mention the number of the case. In contingencies where the courts delay the numbering of the case, L.H.A may not be in a position to wait till the number of the case is made available. Law also does not require mention of the date of the filing of the complaint, though perhaps, if that date is mentioned it will be easier for the accused to find out the number of the case from the court. In this judgment also it has not been indicated that it is mandatory to mention the number of the case in the intimation to be given to the accused. In these circumstances, the two decisions relied on by the learned counsel for the accused cannot be taken to have laid down that it is mandatory to mention the case number in the intimation. The accused in this case has no case that on receipt of the intimation he went to the court concerned and filed an application without mentioning the number and that such application was rejected. There is no violation of S. 13(2) of the Act involved in this case. At any rate, no prejudice is caused to the accused in not mentioning the number of this case in the intimation given to him. The learned counsel took me through the documents and the oral evidence in the case in an attempt to show that there are serious infirmities in the evidence regarding the sampling and therefore, it cannot be taken that the sampling was done in accordance with law. This aspect of the case does not appear to have been properly considered by either of the courts below. The accused has been consistently contending that he had nothing to do with the provision shop and that he is the owner of the adjoining ration shop and has obtained licence for the same as could be seen from the evidence of the Executive Officer of the Pancbayat, examined as Pw. 4. Prosecution has no case that the licence of the provision shop stands in the name of the accused. That would mean that the accused had violated also Rule 50(1) of the Rules in not taking licence in regard to the vending of the various food articles dealt with in the provision shop. But the trial court did not frame charge for sale of food article without license. There was also evidence of Dw. 2, Headmaster of the local school, who stated that the provision shop belongs to one Babu. The Food Inspector did not care to look at any of the records kept in the shop. No doubt, the Prosecutor relies on the evidence of Pw. 1 to the effect that the relevant records, acknowledgment of the Memorandum, seizure mahazar, etc. were signed by the accused, but this is denied by the accused. It is the evidence of Pw. 1 that at the time of sampling there were a number of consumers present in the shop, but not even one of them was required to witness the sampling or to attest the mahazar. Ignoring all of them, Pw. 1 went to the road to call two persons. According to the prosecution, samples of two different food articles were taken on the occasion from the provision shop and prosecutions had been launched. According to Pw. 1, two independent witnesses called from the road did not sign the mahazar in both the cases, and each of them signed one mahazar. But, this is falsified by what is shown in the mahazar. Mahazar shows that both the witnesses signed the mahazar in this case. Peon of the Food Inspector also was present, but be did not attest the mahazar. There is also evidence of Dw. 1, Taluk Supply Officer, which would lend a degree of improbability to the prosecution case that the accused had anything to do with the provision shop None of these circumstances was properly considered by the courts below. In the light of the evidence and the circumstances emerging therefrom, I hold that there is rensonable doubt regarding the sampling done by Pw. 1 and the connection of the accused with the sampling. On this ground, the acquittal of the accused has to be sustained and I do so.
15. The Criminal Revision Case is disposed of accordingly.
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