The admissibility of evidence of a deceased witness and compliance with notice requirements under Section 13(2) of the Prevention of Food Adulteration Act.

The complainant-Food Inspector has preferred this appeal challenging the judgment of the Chief Judicial Magistrate, Thodupuzha dated 28-2-1994 in C.C. No. 57/1989 acquitting the accused.

2. Two accused persons, father and son were prosecuted for the offences punishable under Sections 2(ia)(a), (f), (m) and 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and Rule 5 appendix B, A. 18.06 of the Prevention of Food Adulteration Rules alleging that at 10.40 a.m. on 13-2-1987 they being the licensee and salesman of the shop conducted in door No. 17/3 of Kumaramangalam Panchayath exhibited for sale insect infested peas dhal unfit for human consumption and as such they committed the offences alleged against them.

3. That complaint preferred by the Food Inspector, Thodupuzha Circle, Idukki district was taken on file by the Court as C.C. 57/89 and proceeded with the trial of the case as in a warrant case instituted otherwise than on a police report and after examining some of the witnesses framed charge against the accused who are the respondents herein. Admittedly the respondents are father and son and while the father was the licensee of the shop the son was salesman. The lower Court after trial found that the prosecution has not succeeded in establishing that the respondents have committed the offences alleged against them and therefore they were acquitted and set at liberty by the impugned judgment.

4. Even though the then Food Inspector who purchased peas dhal from the respondents for the purpose of sampling, sent the sample for analysis and filed the above complaint after receipt of the analysis report to the effect that the sample was insect infested and unfit for human consumption, was examined as PW 1 before the lower Court prior to the framing of the charge against the respondents, he was not cross-examined at that stage and his cross-examination was deferred by the counsel for the respondents. But after the framing of charge PW 1 expired and the respondents had no opportunity to cross-examine him. Though the prosecution contended that even though PW 1 was not cross-examined, his evidence has to be considered by the trial Court along with the other evidence adduced by the prosecution to establish the guilt of the respondents, the lower Court held that since PW 1 was not available for cross-examination by the accused in this case, his evidence cannot be relied upon. After eschewing the evidence of PW 1 the lower Court found that the other evidence on record is insufficient to prove that the respondents have committed the offences alleged against them.

5. The case of the prosecution is that on 13-2-1987 at about 10.40 a.m. PW 1 along with PW 2, the Peon in his office after informing his identity purchased 750 gms. of peas dhal exhibited for sale from the shop of the respondents for the purpose of analysis by paying the price and sampled the same in accordance with law and sent for chemical analysis and after analysis PW 5 the Public Analyst sent his report Ext. P9 to the effect that the sample did not conform to the standard prescribed for peas dhal under the provisions of the Prevention of Food Adulteration Act and it was insect infested and unfit for human consumption.

6. As already noted PW 1 the Food Inspector died after examination-in-chief and there was no opportunity to cross-examine him. PW 2 who is the Peon in the office of PW 1 has narrated in detail with regard to the purchase of peas dhal from the shop of the respondents for analysis, sampling etc. by PW 1. PW 3, the owner of the shop room in which the respondents were conducting the trade has also deposed about the purchase of the article for analysis, sampling etc. by PW 1. PW 4 the successor-in-office of PW 1 has deposed in conformity with the evidence of PWs. 1 and 2 and the various documents produced in this case from his office are proved and marked through him. PW 5 is the Public Analyst and PW 6 is the District Food In