Citation Codes

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citation codes

Case Number

Crl. A. 352 of 1980

Attorney(S)

For the Appellant: V. Rama Shenoi R. Raya Shenoi T.M. Abdul Latheef

Judges

Sivaraman Nair, J.

Acts

Ss. 2(ia)(a) & (m) and 7(i) and (v) read with S. 16(1)(a)(i) and (ii) and Appendix B.A 20 of Rule 5 of the P.F.A Rules and Rule 50(i)(K) read with rule 10 of the Prevention of Food Adulteration Rules.
rule 22-A of the Prevention of Food Adulteration Rules,
PREVENTION OF FOOD ADULTERATION ACT
rule 22 of the Rules,

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal was filed by the Food Inspector, Karumallur Panchayat, against the acquittal of three accused (a service co‑operative bank, its Secretary, and the Salesman of the bank's Consumer Store) in S.T. No. 40 of 1979 by the Sub Divisional Judicial Magistrate, Alwaye. On 19 January 1979 at about 11:00 A.M. the Food Inspector purchased a sealed 750 ml bottle of coconut vinegar from the bank's consumer store. The bottle was divided into three equal parts as per the sampling rules; one part was sent to the Public Analyst whose report dated 20 February 1979 found the vinegar adulterated. The accused were charged under various provisions of the Prevention of Food Adulteration Act and Rules (as identified in the record). The trial Magistrate acquitted the accused, relying in part on an interpretation of rule 22A of the Prevention of Food Adulteration Rules and on other grounds. The State appealed under Section 378(4) of the Code of Criminal Procedure.

Legal Issues Presented

What is the correct interpretation and application of rule 22A of the Prevention of Food Adulteration Rules (i.e., how sealed containers should be treated for sampling purposes when each container contains less than the prescribed standard quantity)?
Whether the Secretary of the Bank (second accused) could be proceeded against individually or on behalf of the bank, in light of the bank's bye‑laws and an earlier judgment (Ext. D1) in C.C. No. 470 of 1976.
Whether failure to serve the accused with the notice mandated by Section 13(2) of the Prevention of Food Adulteration Act (enabling re‑examination at the Central Food Laboratory) on each accused warrants acquittal of those not served.
Whether the delay between sampling, analysis, service of the Section 13(2) notice and institution of prosecution prejudiced the accused so as to justify acquittal.
Whether prosecution for adulteration precludes separate prosecution for selling food articles without a licence (i.e., whether conviction for adulteration bars liability for the separate offence of non‑possession of a licence).

Arguments of the Parties

State / Appellant's Arguments

The trial Magistrate's interpretation of rule 22A of the Rules was incorrect; rule 22A should be read so that one or more sealed containers may be combined to satisfy the quantity prescribed in rule 22 for sampling, not necessarily that every sealed container is automatically a distinct representative sample.
The Secretary of the bank (second accused) could be proceeded against because, under the bank's bye‑laws (Ext. P16), the Secretary was custodian of stock and responsible for transactions — i.e., prosecution of the Secretary might be proper.
Operating in food articles without a licence is an independent offence which can be the subject of a separate charge and is not automatically extinguished by prosecution for adulteration.

Respondents / Defence (as presented through Mr. Shenoy)

Rule 22A should be read to permit treating each sealed container as part of the sample so that, where each sealed container contains less than the prescribed quantity for analysis, the inspector must purchase sufficient numbers of sealed containers so that three parts required for sampling can be constituted (example given: if rule 22 prescribes 200 ml but each container is 120 ml, the inspector must buy six containers to form three parts).
The second accused relied on the earlier judgment in C.C. No. 470 of 1976 (Ext. D1) and the bank's bye‑laws (Ext. P16) to assert that only the Salesman was amenable to prosecution for offences committed at the sales depot.
On delay: Mr. Shenoy argued (citing a scientific text) that vinegar containing volatile acids could be chemically transformed by delay between sampling and analysis, which would prejudice the accused; this was relied on to contend that the delay could justify acquittal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jyoti Swaroop v. State of U.P. (1978 Prevention of Food Adulteration Journal 342)	The trial Magistrate relied on a passage stating that "the sealed container bearing the same label should be treated as sample and the article be sent in the same condition to the public analyst," i.e., treating each sealed container as the sample.	The appellate court held that rule 22A does not support the broad proposition extracted from that decision. The court said the trial Magistrate erred in following that decision, but the court did not pronounce finally on the correct detailed interpretation of rule 22A in the present case and deferred detailed consideration to another occasion.

Court's Reasoning and Analysis

The court's analysis proceeded in several discrete steps and applied statutory and evidentiary considerations strictly on the basis of the record.

Interpretation of rule 22A: The court examined competing interpretations. The State urged that rule 22A allows combining one or more sealed containers to reach the prescribed sampling quantity under rule 22. The defence urged that each sealed container should be regarded as part of the sample and that the inspector would be obliged to purchase enough sealed containers to make up three parts for sampling. The trial Magistrate had followed the decision in Jyoti Swaroop, construing sealed containers to be representative samples. The appellate court concluded that the broad proposition adopted by the trial Magistrate was not supported by the wording of rule 22A, but the court declined to pronounce finally on the precise interpretation of rule 22A in this case because it was satisfied the acquittal could be sustained on other grounds; thus a detailed ruling on rule 22A was postponed.
Identification of three dispositive factual clusters: The court noted three relevant sets of facts (a) the Secretary (second accused) had previously been prosecuted and acquitted in C.C. No. 470/1976 (Ext. D1) on the basis of the bye‑laws (Ext. P16); (b) only the third accused (Salesman) was served with the Section 13(2) notice and not the first and second accused; and (c) there was a considerable unexplained delay between sampling, the Public Analyst's report, institution of prosecution and the sending of the Section 13(2) notice.
Effect of bye‑laws and prior judgment on the second accused: On examining Ext. P16, the court concluded that the bye‑laws suggest the Salesman is exclusively responsible for the sales depot, and thus Ext. D1 did not necessarily entitle the Secretary (second accused) to automatic acquittal. The court held that prosecution of the Secretary individually might be proper depending upon compliance with Sections 17(2) and (3), but the record contained no evidence of compliance with those provisions. Consequently the court could not sustain the acquittal of the second accused on the basis of Ext. D1 alone. The court further observed that even if the respondents' submission were accepted, the acquittal could only be in the Secretary's individual capacity and not necessarily on behalf of the bank.
Mandatory nature of Section 13(2) notice and effect of failing to serve it on each accused: The court emphasized that every person sought to be proceeded against under the Act is statutorily entitled to have the sample re‑examined by the Central Food Laboratory under Section 13(2). Where there are multiple accused (employer/employee, principal/agent), the prosecution should ensure that a copy of the Public Analyst's report is forwarded to each accused so that each has the statutory opportunity to apply for re‑examination. In the present case, only the third accused was served with the Section 13(2) notice; the first and second accused were not served and there was no evidence that they received the Public Analyst's report on their appearance in court. The court found that denial of the statutory opportunity to the first and second accused required upholding their acquittal.
Delay and prejudice as to the third accused: The court analyzed the sequence of delay: sampling on 19‑1‑1979, Public Analyst's report dated 20‑2‑1979, initiation of prosecution on 7‑8‑1979, and service of the Section 13(2) notice appearing to occur only in mid/late August 1979. The court said that while delay in forwarding the report "immediately" as required by the applicable rules needs plausible explanation, delay alone justifies acquittal only when prejudice to the accused is shown. The defence contended (by reference to a scientific text) that vinegar containing volatile acids may undergo chemical transformation on delay, causing prejudice. The court accepted that the contention had force but held that the accused must prove actual prejudice. The third accused, although served with the Section 13(2) notice, did not apply in time for re‑examination nor adduce evidence that the delay had prejudiced his defence. Given the absence of such proof, the court concluded the third accused could not successfully claim acquittal on the ground of delay. However, the court also observed that remitting the matter for reconsideration would serve no useful purpose and, for that reason and that reason alone, it was inclined not to interfere with the acquittal of the third accused.
Separate offence of non‑possession of a licence: The court rejected the trial Magistrate's broad proposition that a person prosecuted for an offence under the Prevention of Food Adulteration Act cannot be proceeded against separately for non‑possession of a licence. The appellate court found that proposition too wide and not acceptable: the fact of being proceeded against for adulteration does not automatically bar separate prosecution for licence‑related offences.

Holding and Implications

Final Holding: The appeal is DISMISSED and the acquittal of the three accused is confirmed.

Direct consequences:

The acquittal of the first and second accused (the bank and its Secretary) is upheld principally because they were not served with the Section 13(2) notice required by the Prevention of Food Adulteration Act and thus were denied a statutory opportunity to apply for re‑examination of the sample.
The third accused (the Salesman) had been served with the Section 13(2) notice but did not apply within time for re‑examination nor prove prejudice from the delay; nonetheless the appellate court chose not to disturb his acquittal, primarily because remand would serve no useful purpose in the circumstances.

Broader implications and precedent:

The court declined to lay down a final, authoritative interpretation of rule 22A in this judgment and therefore no new binding precedent on that rule was established here. The court explicitly said a detailed consideration of rule 22A's nature and effect can wait for another occasion.
The opinion emphasizes the statutory entitlement under Section 13(2) to have the sample examined by the Central Food Laboratory and underscores the prosecution's obligation to serve that notice on every accused so entitled; failure to do so may vitiate proceedings as to those not served.
The court also clarified (rejecting the trial Magistrate's view) that prosecution for adulteration does not automatically immunize one from separate prosecution for non‑possession of licence; that is an independent question to be determined on the facts and law of a particular case.
No new general rule about sampling sealed containers under rule 22A was authoritatively laid down in this opinion.

Disposition: Appeal dismissed.

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Food Inspector v. Kodungallur S.S Bank Ltd.

1. This appeal has been filed by the Food Inspector, Karumallur Panchayat, against the judgment of acquittal of the three accused in S.T No. 40 of 1979 on the file of the Sub Divisional Judicial Magistrate, Alwaye, of offences punishable under Ss. 2(ia)(a) & (m) and 7(i) and (v) read with S. 16(1)(a)(i) and (ii) and Appendix B.A 20 of Rule 5 of the P.F.A Rules and Rule 50(i)(K) read with rule 10 of the Prevention of Food Adulteration Rules. The first respondent is a service Co-operative bank, represented by its Secretary; the second respondent is the secretary of the bank and the third respondent is the Salesman of the Consumer Store, run by the bank near U.C College, Alwaye. It has been urged that the Food Inspector, the petitioner herein, visited the consumer store of the first respondent-bank, at which the third respondent was the salesman, at about 11.00 A.M on 19-1-1979. He purchased from the third respondent a sealed bottle containing 750 ml. of coconut vinegar, which was exhibited for sale. It is further alleged that the vinegar was divided into three equal parts and sampled as per the Rules, and one part of the sample was forwarded to the Public Analyst for analysis and it was found to be adulterated. It was further alleged that the accused had not taken out a P.F.A Licence for selling food articles from the Panchayat for the relevant period. The prosecution was based on these allegations.

2. On receipt of the report dated 28-2-79 of the Public Analyst the complainant launched the prosecution on 7-8-79 and the Local (Health) Authority viz., the District Food Inspector, Ernakulam, forwarded a copy of the report of the Public Analyst to the 3rd accused, as required under S. 13(2) of the Act. This communication, Ext. P15 is dated 17-8-1979 and is seen served on 21-8-79.

3. The accused pleaded not guilty of the charges. The prosecution examined the complainant as prosecution witness and marked Exts. P1 to P16. The trial Magistrate found that there was non-compliance with rule 22-A of the Prevention of Food Adulteration Rules, that on the basis of Ext. D1 the second respondent was not liable to be proceeded against and that in any case a person convicted for selling adulterated food article cannot be further convicted and sentenced for sale of the food article without a licence. In the result, he acquitted the accused.’

4. The State has come up in appeal under S. 378(4) of the Code of Criminal Procedure. It was urged on behalf of the State that the interpretation of Rule 22A of the Rules is not correct, that the Secretary of the Rank could be proceeded against since he is the custodian of all stock under Ext. P16 bye-laws of the Society and is responsible for all transactions in the Society and that conducting business in food articles without a licence from the appropriate authority was an independent offence which can be subject matter of a separate charge. In the nature of the contentions, the documents which are material are Ext. P5 mahazar. Ext. P10 copy of memorandum in Form No. VTI, Ext. P11 report of the Public Analyst, Ext. P15 letter of the District Food Inspector to the 3rd accused and Ext. P16 Bye-laws of the Bank. On the side of defence Ext. D1, which is a certified copy of judgment in C.C No. 470 of 1976 on the files of the same court was marked.

5. There has been considerable controversy on the purport of rule 22A of the Rules. It was contended on behalf of the State that what the rule enables is that in cases where a food article is sold in sealed containers containing less than the standard quantity of food as prescribed for purposes of sampling under rule 22 of the Rules, the Food Inspector can treat one or more containers to constitute the sample. The learned Magistrate proceeded on the basis that what rule 22A requires is to treat each of the containers as a representative sample, in all cases of food articles being sold in sealed containers. What Mr. Shenoi, who appeared for the respondents, urges is that each of the sealed containers of articles may be treated as part of the sample, making it obligatory that in cases where the sealed container contains only less than the standard quantity prescribed under rule 22, each one of the three parts of the sample can be made up only with as many number of containers as is necessary to approximate the prescribed quantity fixed under rule 22. In other words, in a case where;the prescribed standard under rule 22 for purposes of analysis is 200 ml. and each of the sealed container contains only 120 ml., it is Mr. Shenoy's contention that the two unopened containers will form a part of the sample. To constitute the sample, there must be three parts. Therefore, the Food Inspector is obliged to purchase six containers to comply with the requirements of S. 11 and the relevant rules relating to sampling. What has appealed to the trial Magistrate is a view that what rule 22A provides is that in cases where the food is sold or offered for sale in sealed containers each such container shall be a sample, irrespective of the quantity each sealed container contains. Sustenance for this proposition was drawn from the decision reported in Jyoti Swaroop v. State of U.P (1978 Prevention of Food Adulteration Journal 342). It was stated in a passage from that judgment extracted by the trial Magistrate, that “the sealed container bearing the same label should be treated as sample and the article be sent in the same condition to the public analyst.” I do not think that on the terminology of the rule, this broad proposition is correct. What rule -22A provides is—

“Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in rule 22 shall be treated to be a part of the sample.”

6. This rule does not in any way support the decision reported in 1978 Prevention of Food Adulteration Journal 342. According to me, the trial Magistrate went wrong in following the above decision and acquitting the accused. It is not necessary for me to pronounce finally on the interpretation of rule 22A canvassed by the State on the one hand and Mr. Shenoy on the other in this particular case, since I am satisfied that the acquittal of the accused is liable to be sustained on other grounds. A detailed consideration of the nature and the effect of rule 22A can therefore, wait for another occasion.

7. Three important sets of facts which are evident from the records in this case, are the following: (1) The Secretary of the Bank, the second accused, was prosecuted on a previous occasion for a similar offence under the Prevention of Food Adulteration Act, and he was acquitted by Ext. D1 judgment, for the reason that, according to the bye-laws of the Bank, copy of which has been produced as Ext. P16 in this case, only the Salesman of the concerned sales depot can be proceeded against; (2) notice under S. 13(2) of the Act was served only on the third accused, the salesman, and not on the other accused, and (3) there was considerable delay between the sampling, institution of the prosecution and the service of notice under S. 13(2).

8. As far as the first set of facts is concerned, it is evident from a perusal of the bye-laws of the Bank, Ext. P16, that the acquittal of the 2nd accused cannot be sustained, even on the basis of Ext. D1. The person Who is exclusively responsible for the conduct of the sales depot, according to Ext. P16 bye-laws, appears to be the Salesman, the third accused. If that be the position, the prosecution of the second accused in his individual capacity maybe proper or justified, and therefore, the second accused may not be entitled to acquittal. But this plea can be successfully urged only if the provisions of S. 17(2) and (3) have been duly complied with. There is no evidence on this point at all. I am therefore not in a position to sustain the acquittal of the second accused for this reason. Even accepting the respondent's submission, the second accused can be acquitted only in his individual capacity and not as representing the first accused bank.

9. Coming to the second set of facts, it is evident that a copy of the notice under S. 13(2) was served only on the third accused. Any person who is sought to be proceeded against for violation of the provisions of Prevention of Food Adulteration Act is entitled to have the sample of the offending food article examined again by the Central Food Laboratory. It has therefore to be held that any person who is arrayed as an accused in a prosecution under, the Prevention of Food Adulteration Act should be enabled to make use of this opportunity statutorily given to him under S. 13(2) of the Act to file an application for such examination by the Central Food Laboratory within the time prescribed. Refusal of such an opportunity, on the assumption that if the other accused who is an employee was given the opportunity, the opportunity so given to that accused should do duty for the employer accused as well, does not seem to me to be legally tenable. In a case of loss of the cordial relations between the employer and the employee, both of whom are arrayed an accused, and the employee accused, who alone is served with the notice under S. 13(2) it may so chance that the latter does not take necessary steps either by design or by default to have the sample examined by the Central Food Laboratory. It is hard to visit the employer, to whom such an opportunity was not given, with the consequences of the default of the recalcitrant employee for the only reason that at the time of the commission of the offence that person was an employee of the other accused. According to me, in all cases where there is multiplicity of accused, the employer and employee or principal and agent etc., the prosecution should see that notice under S. 13(2) of the Act is served on each of them so that there may not be any complaint of denial of the statutory opportunity by any of them. In the present case, admittedly notice under S. 13(2) of the Act had not been given to the first and second accused; nor is there any evidence that on their appearance in Court, they were served with copies of the report of the Public Analyst. In this state of the facts, I cannot but uphold the acquittal of the first and second accused by the trial Magistrate.

10. As far as the third accused is concerned, admittedly he was served with a notice under S. 13(2) but no application was made within time requesting the court to send the sample for further analysis and examination by the Central Food Laboratory. The 3rd accused cannot therefore claim the benefit of this defence.

11. The third ground urged by Mr. Shenoy requires examination in detail on the facts involved, and they are the following: The sampling was on 19-1-1979 and the report of the public analyst Ext. P11 was on 20-2-4979. The prosecution was initiated only about six months thereafter on 7-8-1979. Ext. P15 letter by the Local (Health) Authority to the third accused was dated 17-8-1979; it appears to have been sent only on 18-8-1979 and received by the 3rd accused on 21-8-1979 as is evident from Ext. P14 postal acknowledgment. No attempt has been made to explain why there was considerable delay between the date of offence, the date of institution of the proceedings and the date of forwarding a copy of Ext. P11 report to the third accused under S. 13(2) of the Act. On a perusal of the evidence, it appears that even though the report Ext. P11 was dated 20-2-1979, Ext. P12 memo of the Local (Health) Authority to the complainant was dated 12-5-1979. This may probably explain part of the delay in instituting the prosecution. But it is not discernible why even after the receipt of Ext. P12, Pw I took about three more months to institute the complaint on 7-8-1979. Thereafter, there is a delay of ten days upto 17-8-1979 for the Local (Health) Authority to be alerted to its duty under S. 13(2) of the Act read with rule 9A of the Rules to forward “immediately” a copy of the report of the Public Analyst to the accused. In the context of this statutory provision, that a copy of the report shall be sent “immediately” to the accused, there should be a plausible explanation as to why the Local (Health) Authority delayed the communication of a copy of the report to the accused. No such explanation has been offered in this case. The Local (Health) Authority, the District Health Inspector, has not been examined. No documentary materials are forthcoming to explain the delay. But this delay can justify the acquittal of the accused only if it is shown that such delay has prejudiced the accused. Mr. Shenoy referred me to “Chemical Analysis of Foods and Food Products” (3rd Edn.) by Jacobs (page 615) to support his submission that vinegar which contains volatile acids is likely to undergo serious chemical transformation due to delay and such transformation would be to the prejudice of the accused. I see the force of this submission. But I am unable to agree that it is impossible for the accused to have this characteristic demonstrated and made use of in his defence, only due to delay. I am of the view that in all cases of such delay, it is open for the accused to prove that such delay has prejudiced him, and only on proof of such prejudice can the accused be entitled to acquittal. In the present base, the 3rd accused had not availed of that opportunity and cannot therefore?claim acquittal on the ground that prejudice was likely to him on the ground of delay. This is a matter requiring evidence even irrespective of the report of the Public Analyst or the Central Food Laboratory and none had been adduced. No useful purpose will now be served by remitting the matter for reconsideration; and for that reason and that reason alone, lam inclined not to interfere with the acquittal of the third accused.

12. I should also advert to the other ground stated by the trial Magistrate in support of the acquittal, and that ground is, that a person who has been proceeded against for violation of the provisions of the Prevention of Food Adulteration Act is not liable to be proceeded against for non-possession of a licence to vend the food articles at all. This seems to be far too wide a proposition to merit acceptance. A person who vends adulterated food articles can also be a person who does so without the licence and in other food articles as well. The only fact that he has been proceeded against for adulteration does not automatically mean that he is not liable to be proceeded against for non-possession of a licence. The result therefore is that the acquittal of the accused is confirmed, though for reasons different from those found by the trial Magistrate. The appeal is accordingly dismissed.

13. Dismissed.

Food Inspector v. Kodungallur S.S Bank Ltd.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

State / Appellant's Arguments

Respondents / Defence (as presented through Mr. Shenoy)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Food Inspector v. Kodungallur S.S Bank Ltd.

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