The Judgment of the Court was delivered by
Balakrishnan, J.:— Crl. Appeal No. 235 of 1983 & 243 of 1983 have been filed challenging the acquittal of the accused in S.T.C 76 of 1982 and 32 of 1982 respectively on the file of the Chief Judicial Magistrate. Palghat. Common grounds have been urged in both these appeals and hence they were heard together.
2. In S.T.C 76 of 1982 the complainant, Food Inspector, Palghat Municipality, purchased 600 grams of coffee-chicory blend from the accused on 6-10-1982. The accused had been conducting ‘Metro Coffee Works’ in the building bearing door No. 1/418 within the Palghat Municipality. The Food Inspector after complying with the necessary formalities sent the sample to the Public Analyst. Ext. P 13 report of the Public Analyst dated 16-11-1982 showed that the sample did not conform to the standard prescribed for coffee-chicory bleed and was therefore adulterated. Ext. P 15 intimation under S. 13(2) of Prevention ef Food Adulteration Act was sent to the accused on 2-12-1982 itself and the same is seen acknowledged by Ext. P 16 document on 4-12-1982. The complaint against the accused was filed on 2-12-1982.
3. In S.T.C 32 of 1982 the Food Inspector, Palghat purchased 750 mi. of cow's milk from the accused on 8-6-1982. The sample was forwarded to the Public Analyst for analysis and the Public Analyst reported that the sample did not conform to the standard prescribed for cows milk under the Prevention of Food Adulteration Rules 1955 and therefore it was adulterated. The complainant received the report of the Public Analyst and filed the complaint in court against the accused on 9-7-1982. Ext. P 14 is the intiatmioa issued to the accused under S. 13(2) of the P.F.A Act. Ext. P 14 intimauon dated 7-7-1982 is seen to have been received by the accused on 10-7-1982 as per Ext. P 16 acknowledgement. The Chief Judicial Magistrate, Palghat acquitted the accused in both cases mainly on three grounds: 1) Intimation under S. 13(2) of the P.F.A Act did not contain the case number filed against the accused and therefore there was infraction of S. 13(2) of the Act and the accused was seriously prejudiced, 2) There was no valid appointment of Local Health Authority and therefore the prosecution was not maintainable and 3) The Food Inspector had not complied with the formalities prescribed in Rule 17 of the P.F.A Rules.
4. Both these cases have been referred to the Division Bench by the learned Single Judge to resolve the apparent conflict between the two decisions of this Court reported in V.J Paul v. Ibrahim (1982 Crl. L.J NOC 30) and State of Kerala v. Soman (1983 KLT. 297). In V.J Paul's case the single Judge of this Court held:
“The person from whom the sample is taken will 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. It is a mandatory provision the non-compliance of which may lead to serious consequences”.
5. In the case reported in State of Kerala v. Soman (1983 KLT. 297) this court held that the failure to stats the number of the case in the intimation does not amount to the infraction of S. 13(2) of the Act. A similar question came up for consideration before the Division Bench of this Court in Food Inspector v. Karingarappully Co-Op. M.S Society Ltd. (1986 KLT. 174). The Division Beech field:
“S. 13(2) & R. 9A are only directory. Of coarse, this provision of law mast be obeyed; it is not left to the sweet will and pleasure of the statutory authority to obey the provision or not. The statutory authority has to discharge its functions as contemplated by law. Where there is a total denial of the right on account of the deliberate conduct of the statutory authority, where the effect of non-compliance with the provision is such as to wholly deprive the right of the accused to challenge the Public Analyst's report by obtaining the certificate of the Director of Central Food Laboratory, it may perhaps be possible to say that serious prejudice has been caused. Accused could very well apply to the court to send one of the samples to the Central Food Laboratory. If the Director of the Laboratory sends the certificate containing the result of analysis and his opinion the certificate supersedes the Public Analyst's report; in that case, accused has exercised his right. If the Director of the Laboratory finds the sample (or samples, as the case may be) unfit for analysis and if such unfitness of the sample could be referable to the delay in making the application on account of non-compliance with or defective compliance of S. 13(2) of the Act or Role 9A of the Rules, it would mean that the accused has been deprived of his statutory right on account of the conduct of the statutory authority and prejudice has been caused to him. If be refrains from making any such application to the Court to send the sample to the Central Food Laboratory, he cannot successfully contend that there has been prejudice, merely because of non-compliance or defective compliance with the provision of law”.
6. In both these cases intimations under S. 13(2) were sent on the date on which the complaint was filed before court. In S.T.C 76 of 1982 Ext. P 15 intimation shows the details of the charge filed against the accused. In the intimation reference has been made to charge sheet No. 10/82-83 of the Food Inspector, Palghat Municipality, and the number of the sample is also given therein. So also in S.T.C 32/82 Ext. P 14 intimation shows that charge sheet No. 6/82-83 of Food Inspector, Palghat Municipality has been referred to. Admittedly both these intimations have been received by both the accused in time. They did not apply to the Court for sending the sample kept in the Local Health Authority to be analysed by the Director of Central Food Laboratory. They had not invoked their right under sub-section (2-A) of S. 13 of the Act by making an application to the court requiring the Local Health Authority to forward the portion of the sample kept by the said Authority to the Central Food Laboratory. As they had not availed of this opportunity there would not have been any prejudice caused to them.
7. Under S. 13(2) of the Act it is not contemplated that the name of the case should be mentioned therein. S. 13(2) of the Act only mandates to send a copy of the report of the result of the analysis to such person or persons as the case may be and also to inform them that they may make application within 10 days from the date of receipt of copy of the report to get the sample of the article of foed kept by the Local Health Authority analysed by the Central Food Laboratory. As soon as the accused gets the intimation he can very well go to the concerned court and collect the details regarding the case from the court. Even if there was only defective compliance of S. 13(2) of the Act, it cannot be said to vitiate the whole prosecution proceedings unless it is proved-that prejudice has been caused to the accused. The accused can raise the plea of prejudice only where there is a total noncompliance of the S. 13(2) intimation. If there was total absence of the intimation Under S. 13(2) of the Act it can be presumed that prejudice had been caused to the accused. S. 13(2) of the Act is definitely an important right conferred on the accused. In Dakhand v. Municipal Corporation, Bhopal ((1984) 2 SCC 486 : AIR 1983 S.C 303) this has been explained by the Supreme Court. The Supreme Court held:
“Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large”.
8. If was pointed out by the counsel for the accused that whea the intimations were issued the court had assigned case numbers for the two complaints and the complaint could have incorporated the case number therein. Intimations under S. 13(2) have been sent on the date of the complaint itself. It is not known whether the same were sent after the trial court registered the complaint as a summary trial case. If the case number was known to the complainant it is desirable that the same also could be mentioned in the intimations on behalf of the accused. In S.T.C 32/82 it was contended that the accused is an illiterate and petty trader and intimation under S. 13(2) of the Act was given in English and the same did not contain the case number and serious prejudice has been caused to him. This contention also cannot be accepted. The Prevention of Food Adulteration Act, 1954 is a Central enactment and all the prescribed forms have been given in English. The Food Inspector has followed the rules and sent the intimation in English. He has not violated any rules in this regard. Sufficient details have been given in the intimation and no prejudice has been caused to the accused in both these cases and the finding of the learned Magistrate to the contrary is illegal and unsustainable.
9. The next contention urged by the learned counsels for the accused is that the finding of the learned Magistrate that there was no valid appointment of the Health Authority and that the prosecution was not maintainable is incorrect. In the instant case the Municipal Commissioner has acted as the Local Health Authority. The notification dated 27-8-1979 marked as Ext. P 1 in S.T.C 32 of 1982 shows that in the case of municipality having a Health Officer the Health Officer of the Municipality or in his absence the Commissioner of the Municipality shall act as the Local Health Authority. When the complainant was examined the maintainability of the prosecution was not challenged. It has been contended by the counsel for the accused that the Local Health Authority was cited as a witness on the side of the prosecution and it was later given up and the accused did not get an opportunity to challenge the competency of the Local Health Authority. This contention cannot be accepted. The Municioal Commissioner has admittedly acted as the Locat Health Authority. As per the Government notification dated 27-8-1979 the Commissioner was legally competent to act as the Local Health Authority and when he had acted in that capacity it would be presumed that he acted with authority. If the accused had any specific contention that the Municipal Commissioner had acted without jurisdiction, the same could have been proved by them. Illustration (e) of S. 114 of the Evidence Act states that all official acts are presumed to have been regularly performed. So also under S. 57(7) of the Evidence Act, the Court shall take judicial notice of the accession to office, name, titles, functions and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette. Here all the correspondences have been made in the name and under the signature of the Local Health Authority. A notification has also been produced empowering the Municipal Commissiocer to act as the Local Health Authority. Therefore it has to be presumed that he had the authority to act in that official capacity. If there was any lack of authority, it was upto the accused to prove the same. The learned Magistrate has erred in finding that the prosecution was not maintainable.
10. The next serious contention urged on behalf of the appellant was that the Magistrate has erroneously held that there was violation of Rule 17 of the P.F.A Rules. Rules 14 to 22B in Part V of the P.F.A Rules 1955 deal with the sealing, fastening and despatch of samples. Rules 14 to 17 deal with the manner in which the samples are to be collected, sealed and sent to the concerned authorities. It has been poinded out by the Magistrate that PW.1 did not give evidence regarding the compliance of Rule 17 of the P.F.A Rules. Rule 17(a) deals with the manner in which sealed container is to be despatched for analysis and Rule 17(b) says as to how the other two sealed containers are to be Bent to Local Health Authority. Rule 17 says that in both these cases sealed containers have to be sent in a sealed packet. How the sealed containers have to be sealed and packed is described in detail in Rule 16. Rule 14 explains how the samples are to be sake a in clean dry bottles or jars. Rule 14 also says that the bottle or jar shall be closed tightly to prevent leakage and evaporation or entrance of moisture. For that purpose the bottles have to be sealed tightly. Thereafter the bottles have to be packed, fastened and sealed in the manner prescribed under Rule 16. When PW 1 gave evidence that he had taken the sample and complied with all the formalities prescribed under law it has to be presumed that he followed the procedure laid down under Rules 14 to 22(b) in Part V of the P.F.A Rules. In the instant case the report of the Public Analyst gives further guarantee that rule 17 has been complied with. The Analyst's report is in the form of a certificate and it has been stated therein that the sample for analysis was properly sealed and fastened and that he found the seal intact. It is also specifically mentioned that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. The outer cover mentioned in the certificate refers to the sealed packet contemplated under Rule 17 of the P.F.A Rules. When there is a certificate by a competent authority who had occasion to notice and verify the correctness of the same, it cannot be heard to say that the Food Inspector did not comply with rule 17 of the Rules. We accept the contention of the appellant.
11. In S.T.C 76 of 1982 the trial court held that the sale of chicory blended coffee was not an offence. Reliance was placed on the decision reported in Augustine v. State of Kerala (1973 K.L.T 509). That was a case in which the accused was prosecuted on the grouad that he mixed coffee with chicory. This Court held that mixing of coffee with chicory is not an offence and in fact Appendix B in the P.F.A Rules 1955 coffee-chicory is mentioned as an article of food and no mention is made to the proportion to which coffee powder and chicory could be blended.
12. In the present case the standard for coffee mixture had been prescribed in A. 08.03 of Appendix B. It says that the coffee chicory mixture shall contain caffeine not less that 0.6 percent and the aqueous extract shall net be more than 50 per cent. On analysis it was found that the caffeine content was 0.47 percent as against the required quantity of 0.6 percent and therefore it was adulterated. The ruling relied on by the learned Magistrate had no application and the court below has seriously erred in finding that this food item was not adulterated. In S.T.C 76 of 1982 the accused was sent up for trial for violation of S. 16(1)(a) (i) and (ii) of the P.F.A Act 1954 for having sold adulterated coffee chicory mixture. It is also proved that the accused had no valid licence at the time of sale. He later produced Ext. Dl document to show that he had remitted licence fee. Ext. Dl is dated 10-1-1983 much after the sale of sample. Ext. Dl only strengthens the case of the prosecution that he had no valid licence at the time of sale. The accused in S.T.C 76/82 lias committed the offence alleged against him and he is liable to be convicted under S. 16(1)(s)(i) and (ii) of the Act.
13. The order of acquittal passed by the Magistrate in S.T.G 76/82 is set aside and the accused is found guilty of offence under S. 16(L)(a) (i) and (ii) and is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1000/-. If the accused fails to pay the fine he shall undergo two months simple imprisonment in addition to six month imprisonment.
14. It is proved that the accused in S.T.C 32 of 1982 has committed the offence under S. 7(1) read with S. 16(1)(a) (i) and (ii) of the P.F.A Act, 1954. He is also liable to be punished thereunder.
15. The order of acquittal passed by the Magistrate in S.T.C 32 of 1982 is set aside and the accused is found guilty of offence punishable under S. 16(1)(a) (i) and (ii) of the Act and is sentenced to undergo simple impiisoamsnt for a period of six months and to pay a fine of Rs. 1000/-. In default of payment of fine, he shall undergo imprisonment for a period of two months in addition to six months.
16. Allowed.