The main legal point established is that the jurisdiction of a food inspector to take samples is not restricted to a specific local area, and the appeal presentation under S.378(4) of the Code of Criminal Procedure is permissible when special leave is granted.

1. "New Mahe" is the name of a Panchayat 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 Panchayats 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 Panchayat. 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 pw.1. Sample was divided into three parts as provided by law and Ext. P4 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 sweetener 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. P25 is the certificate of analysis issued by the Director of Central Food Laboratory. It shows that the sample contained artificial sweetener identified as saccharine.

3. Learned Sessions Judge accepted the contention that Pw.1 was incompetent to take sample from the cool bar of the accused situate in New Mani Panchayat 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 Panchayat.

4. 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 petition has been signed by the State Public Prosecutor on behalf of the food inspector. Learned counsel referred to the 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 vakalath 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 who signed the appeal memorandum and the special leave petition has filed a vakalath signed by the complainant/food inspector. But the contention is that if the appeal has not been filed by the complainant as envisaged in S.378 (4) of the Code of Criminal Procedure (for short 'the Code') the appeal is not maintainable under law.

5. 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