Food Inspector v. Viswanatha Pillai

1. This is an appeal preferred by the State against the acquittal of the accused in C.C No. 81 of 1980 on the file of Judicial First Class Magistrate Court, Ambalapuzba.

2. The Food Inspector of Thakazby Panchayat in Alleppey District purchased 600 grams of coffee-chicory mixture from the shop of the respondent. After complying with the necessary formalities the sample was sent to the Public Analyst. Ext. P9 report issued by the Public Analyst shows that coffee-chicory mixture contained only 0.44 per cent of coffeine and 58.6 per cent of aqueous extract.

3. Had the coffee-chicory mixture been unadulterated it should have 0.6 per cent of coffeine and the percentage of the aqueous extract should not have been more than 50. Prosecution was launched against respondent on 11-3-1980 and Rule 9(A) report was sent to the respondent on 17-3-1980.

4. Learned Magistrate acquitted the accused mainly for the reason that the prosecution failed to comply with rules 9(A) and S. 10(7) and also relied on the decision Augustine v. State of Kerala reported in 1973 KLT. 509.

5. The learned Public Prosecutor seriously challenged the judgment. It is true that the decision reported in 1973 KLT 509 has no application to the facts of the case. One of the reasons given by the Magistrate for acquittal was the violation of S. 10(7) of the Prevention of Food Adulteration Act, 1954. S. 10(7) of the Prevention of Food Adulteration Act, 1954 states that where the Food Inspector takes any action under clause (a) of sub-section (1), subsection (2) sub-section (4) or sub-section (6) of S. 10 be shall call one or more persons to be present at the time when such action is taken and take bis or their signatures. Here Pw. 4 was present and his signature was taken in the mahazar. The fact that he turned hostile to the prosecution is of no consequence and it cannot be taken as an infraction of S. 10(7) of the Act.

6. The learned Magistrate also found that there was six days delay in sending the report to the respondent and hence the violation, of rule 9-A of the Prevention of Food Adulteration Rules, 1955. As per the then existing rule the local health authority should have forwarded a copy of the report of the analyst in Form No. 3 to the persons from whom the sample was taken, immediately after the institution of the prosecution. Here such a report was sent within six days. A Full Bench of this Court in Food Inspector v. Prabhakaran reported in 1982 K.LT 809 held that Rule 9(A) of the Rules only means that the report should have been sent within the reasonable time-So the acquittal based on the violation of Rule 9(A) is also not sustainable.

7. Eventhough all the three reasoos given by the learned Magistrate for acquitting the accused are not sustainable, there is yet another lethal snag in the prosecution. Ext. P9 certificate shows that the sample was received by the Public Analyst on 12th October, 1979. Pw. 3, the Local Health Authority deposed before the court that he received the report from the Public Aoalyst on 3-12-1979. If that be so it is clearly after 45 days. Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 reads as follows:—

“The public analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form III.”

8. The Rule 7(3) is enacted on the basis of certain salutory principles. This is intended not merely to avoid delay in issuing the report when various samples of food items are taken for analysis. Certain food items are likely to get deteriorated even if some preservatives are added to it. In some cases the sample itself may contain some micro bacteria or other live organism. By the passing of time, the organism may multiply and cause the food item defective for analysis. The time limit of 45 days is prescribed after having regard to all these contingencies. Therefore from the very nature it is mandatory and even the delay of few days will cause prejudice to the accused. A Division Bench of this Court in the decision Food Inspector v. Moosa reported in 1984 KLT. 80 also held the same view.

9. Therefore, even though the acquittal has been ordered by the Magi strate on unsustainable grounds, if the case is viewed from this angle it is only to be held that the respondent was entitled to acquittal for violation of Rule 7(3) P.F.A Rules, 1955. The order of acquittal is confirmed and the appeal is dismissed.

M.MDismissed.