1. “New Mahe” is the name of a Paochayat comprising areas which once formed portions of two other Panchayats (Chokli and Kodiyeri). New Mahe was formed in 1982. The accused in this case is conducting a cool bar at New Mahe. On 14-1-1983, a food inspector (appointed by Government in 1978 for the local area called “Tellicherry Circle” consisting of a few pancbayats including Chokli and Kodiyeri) took sample of ice candy from the cool bar of the accused. The sample was found to be adulterated on analysis. Accused was convicted for the offence under S. 16(1)(a)(i) of the Prevention of Food Adulteration Act (for short ‘the Act’) and sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-. The Sessions Judge, in appeal, took the view that the sampling is unsupportable in law since the food inspector who took the sample was not appointed to exercise powers in the New Mahe Pancbayat. Accordingly, the conviction and sentence were set aside. Hence this appeal.

2. The food inspector (Pw. 1) purchased 750 grams, of ice candy from the accused. Form VI notice was given to him intimating that the sample would be sent for analysis. A cash receipt was issued by the accused for the price paid by P.W 1. Sample was divided into three parts as provided by law and Ext. P.4 mahazar was drawn up by Pw. 1 which was signed by two witnesses. When one of the parts of the sample was analysed by the Public Analyst, it was revealed that the sample did not conform to the standard prescribed for ice candy and it contained artificial sweetner saccharine and dulcin During trial, one of the other parts of the sample was sent to the Director of the Central Food Laboratory, at the instance of the accused. Ext. P.25 is the certificate of analysis issued by the Director of Central Food Laboratory. It shows that the sample contained artificial sweetner identified as saccharine. Learned Sessions Judge accepted the contention that Pw. 1 was incompetent to take sample from the cool bar of the accused situate in New Mahi paochayat although the Sessions Judge repelled various other contentions raised by the accused. The conviction and sentence were set aside only on the ground of want of competence of the food inspector to take sample and to initiate prosecution against the accused since Pw. 1 was not appointed to exercise jurisdiction in New Mahe Paochayat.

3. A preliminary objection has been raised by the learned counsel for the respondent (accused) that the appeal is not maintainable since it has been presented by the State Public Prosecutor and since it has not been presented by the complainant/food inspector. The factual position is that special leave petition was filed by the food inspector (who was the complainant in the trial court), but the perition has been signed by the State Public Prosecutor on behalf of the food inspector. Learned counsel refferred to tbs decision of Pareed Pillay, J. in State Of Kerala v. Sunder Raj (1985 KLT. 368) in support of the preliminary objection. In that case, complainant-food inspector was not the appellant nor did the Public Prosecutor figure as the appellant. It was the State of Kerala which was shown as the appellant therein. Public Prosecutor who signed the appeal memorandum in that case did not file yakalath of the complainant. In the aforesaid circumstances, learned single Judge found that the appeal has not been properly presented. In this case, the Public Prosecutor woo signed the appeal memorandum and the special leave petition has filed a vakalato signed by the complainant/food inspector. But the contention is that if the appeal has not been filed by the complainant as envisaged ia S. 378(4) of the Code of Criminal Procedure (for short ‘the Code’) the appeal is not maintainable under law.

4. S. 378(1) says that “save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Sub-section (4) reads thus:

“If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the ordor of acquittal, the complainant may present such an appeal to the High Court”

5. Sub-section (2) deals with appeal aga?nst order of acquittal passed in cases falling under Delhi Special Police Establishment Act etc. Sub-section (3) says that no appeal shall be entertained except with leave of the High Court. Sub-section (1) has nothing to do with Sub-section (4) The former is not in any manner controlled or restricted by what is provided in Sub-section (4). This means that an appeal can be filed by the Public Prosecutor against an order of acquittal in any case, provided leave has been granted by the High Court. For the application of Sub-section (I), it is immaterial that the order of acquittal was passed in a case instituted on complaint. Sub-section (4) provides a remedy of appeal for the complainant. If a complainant does not file an application for special leave against an order of acquittal, the State Government does not become helpless if they feel that an order of acquittal should be challenged. State Government can, in all cases of acquittals, whether instituted upon complaint or otherwise, direct the Public Prosecutor to present the appeal after obtaining special leave of the High Court. The provision under Sub-section (4) is thus only supplemental to the provision contained in sub-section (1) and not in derogation thereto. So when the accused in a case instituted on complaint is acquitted, the order of acquittal can be challenged in appeal either at the instance of the Public Prosecutor (on being directed by the State Government or at the instance of the complainant.) Here, the appeal having been presented by the food inspector on obtaining special leave is not bad in law even though the petition has been signed by the State Public Prosecutor who was authorised by the complainant through a vakalath. Hence the preliminary objection is overruled.

6. There is no dispute that Pw. 1 Food Inspector has taken sample of ice candy from the cool bar owned by the accused. Ext. P.25 certificate issued by the Director of Central Food Laboratory is evidence to prove that the sample was adulterated. The only point urged in this appeal is regarding the jurisdiction of the Food Inspector to take sample from New Mahe panchayat area. Ext. P.1 is a copy of the notification appointing Pw. 1 as food inspector on 22-6-1978 for the local area designated as “Tellicherry Circle”. The local area comprises some panchayats including Chokli and Kodiyeri panchayats. There is no dispute that the cool bar of the accused is situate within the local area defined in Ext. Pl notification. The only contention is that when New Mahe Panchayat was formed, the areas falling within its limits would automatically have go fie out of the territorial limits of the local area and since Pw. 1 was not appointed as food inspector for New Mahe Panchayat, he ceased to have jurisdiction over that area from the date of the formation of New Mahe panchayat. This contention has found favour with the learned Sessions Judge. Counsel cited the decision in Abdulla Haji v. Food Inspector (1967 KLT. 577) to support the contention. Facts in that case show that Muliyar pan-. chayat came into existence in 1964 whereas the food inspector instituted a complaint on the strength of a notification issued in 1959 authorising “the food inspector appointed under the said Act” to institute prosecutions for offences under the Act. The argument advanced in that case was (hat the said notification cannot apply to the food inspector of the panchayat which did not then exist. Learned single Judge held: “in my view the not if cation is very clear and it has exercised the power only in favour of food inspectors appointed under the said Act and not also in favour of food inspectors appointed in the future under the Act”. The position here is different inasmuch as no food inspector has been appointed afresh for the areas constituting New Mahe panchayat. The question is whether Pw. 1 ceased to have jurisdiction over the areas comprised in New Mahe panchayat from the date of constitution of that panchayat.

7. S. 9 of the Act empowers the Government to appoint such persons as it thinks fit to be food inspectors, for such “local areas” as may be assigned to tbem. S. 2(VII) defines “local area” as “any area whether urban or rural declared by the Central Government or the State Government by notification in the official gazette to be a local area for the purposes of this Act”. For declaring a local area, Government may adopt convenient expressions either by fixing the outer limits by measurements or by including named localities within that area. What is usually done, and what would be expedient either is to include places with reference to their names. If the name of a particular locality is changed for any reason whatsoever, it is no reason to conclude that the local area declared under S. 9 of the Act would become short of that locality. In 1973, Government declared a particular area consisting of some named panchayats to be the local area and called it “Tellicherry Circle”. Those panchayats were then known by the respective names indicated in the notification. The local area thus declared is local area for the purpose of the Prevention of Food Adulteration Act. The local area so declared would continue to remain as such until the area is altered by the Government through another notification issued under S. 9 of the Act, even if some of the localities may attain different names in the mean-while. A panchayat area is-forteed as per the provisions of the Kerala Panchayats Act for the purposes of that Act. If boundaries of an existing panchayat are altered or if any new panchayat is formed by carving out areas from existing panchayats, that cannot automatically affect or impaire the local area declared by the State Government under S. 9 of the Act. Of course, it is open to the Government to exclude the newly formed panchayats from the local area defined in the notification issued under the said Section. If it is not so excluded, the local area will continue to embrace the geographical territories included in the newly formed panchavat or municipality.

8. The question can be approached from another angle also. What is the consequence even if New Mahe panchayat would have been excluded from the local area of Tellicherry Circle before Pw. 1 visited the cool bar of the accused? There is no contention that Pw. 1 is not a food inspector at all., Let me assume that Pw. 1 may not be a food inspector for New Mahe panchayat. Even then, he would continue to be a Food Inspector albeit for a different area. Can he take a sample from the shop in the New Mahe area? S. 10 of the Act deals with the powers of the Pood Inspectors. Subsection (1) empower, “a Food Inspector to take sample of “any” article of food from “any” person selling such article or “any” person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser, Sub-section (2) empowers “any” Food Inspector to enter and inspect “any” place where any article of food is manufactured or stored for sale. Sub-section (4) empowers “any” food inspector to seize such articles as would appear to him to be adulterated. Sub-section (5) says that the powers conferred by this section includes power to break open “any” package or to break open the door of “any” premises where any article of food is stored for sale. The lavish employment of the word “any” in Sub-section 10 would indicate that the food inspector appointed for one local area may also take samples from persons or places outside the limits of his local area. Perhaps, a food inspector may not take the trouble to go out of him limits to take samples. But, there is no statutory inhibition and on the other band, the scheme of S. 10 otherwise indicates. This view is strengthened when a reference is made to S. 12 of the Act which says that “anything contained in this Act shall be held to prevent a purchaser of any article of food other than a food inspector from having such article analysed by the public analyst………”. If any such food article is found to be adulterated on analysis, the sellor thereof is liable to be prosecuted in the same way as other person who sells it to a food inspector. In this view of the legal position, Pw. 1's action cannot be held to be opposed to law, even if New Mahe panchayat is to be treated as outside the local area assigned to P.W 1.

9. The reasoning adopted by the learned Sessions Judge cannot be supported in law and the order of acquittal was thus based on an erroneous view that Pw. 1 acted without authority. I, therefore, allow this appeal and set aside the order of acquittal. The conviction and sentence passed by the trial Magistrate are restored. The trial Magistrate is directed to adopt steps to take the accused into custody for enabling him to undergo the term of imprisonment.

10. Allowed.