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1986 Supreme(Ker) 12
Judges : SREEDHARAN
FOOD INSPECTOR - Appellant
Versus
VARGHESE - Respondent
Case No : Crl.A. No. 295 of 1982
Decided On : 01/07/1986
Advocates Appeared :
M.B. Kurup; For Appellant M.N. Sukumaran Nair; B. Raman Pillai; For Respondents
Non-compliance with the provisions of S.13(2) of the Act or R.9A of the Rules will be fatal to the prosecution only if the said delay has caused prejudice to the accused. The delay by itself, if it has not resulted in any prejudice to the accused, will not lead to acquittal.
Headnote:
Food Adulteration - Buffalo Milk - Prevention of Food Adulteration Act, S.13(2), R.9A - The court found the milk to be adulterated as it does not conform to the standard prescribed for buffalo milk and that the sample contained not less than 11 per cent of added water. The accused was acquitted by the learned Magistrate solely on the ground of the violation of provisions contained in S.13(2) of the Act and R.9A of the Rules. The delay in sending the intimation under S.13(2) of the Act or R.9A of the Rules was found not to have caused any prejudice to the accused. The court held that the delay by itself, if it has not resulted in any prejudice to the accused, will not lead to acquittal. The accused was found guilty of the offence punishable under S.16(1)(a) (i) read with S.7(1) of the Act and was convicted.
Fact of the Case:
The Food Inspector purchased 675 ml of buffalo milk from the second accused, which was found to be adulterated. The accused was acquitted by the learned Magistrate solely on the ground of the violation of provisions contained in S.13(2) of the Act and R.9A of the Rules.
Finding of the Court:
The court found the milk to be adulterated and held that the delay in sending the intimation under S.13(2) of the Act or R.9A of the Rules was not prejudicial to the accused. The accused was found guilty of the offence punishable under S.16(1)(a) (i) read with S.7(1) of the Act and was convicted.
Issues: The main issue was whether the delay in sending the intimation under S.13(2) of the Act or R.9A of the Rules was fatal to the prosecution and entitled the accused to an acquittal.
Ratio Decidendi: The delay in sending the intimation under S.13(2) of the Act or R.9A of the Rules was found not to have caused any prejudice to the accused, and therefore, the accused was not entitled to an acquittal solely on the ground of the violation of these provisions.
Final Decision: The acquittal of the accused was set aside, and the appeal was allowed. The second accused was found guilty of the offence punishable under S.16(1)(a) (i) read with S.7(1) of the Act and was convicted.
1. The Complainant, Food Inspector, Trichur Municipality in ST. 53/80 on the file of the Chief Judicial Magistrate, Trichur is the appellant in this appeal. He purchased 675 ml. of buffalo milk from the second accused who brought it for sale to the Casino Cafe at Trichur, after revealing his identity and making known of his intention to have it analysed by the public analyst. After due sampling and preparation of the mahazar etc. one sample was sent to the public analyst for analysis. The public analyst as per his report found the milk to be adulterated as it does not conform to the standard prescribed for buffalo milk and that the sample contained not less than 11 per cent of added water. The accused was also thereupon duly informed to the report of the public analyst as provided by S.13(2) of the Prevention of Food Adulteration Act after filing the complaint before court. The accused got the second sample analysed by the Director of Central Food Laboratory. The report of the Director of Central Food Laboratory also go to prove that the sample was an adulterated one. In support of the prosecution pws.1 and 2 were examined and exhibits P1 to P11 were marked After considering the above evidence the learned Magistrate came to the conclusion that the second accused sold 675 millilitres of buffalo milk to pw.1, that the prosecution has not established the first accused's connection with the second accused, that the milk sold by the second accused was adulterated that there was no violation of the provisions contained in S.10 (7) of the Prevention of Food Adulteration Act and that the provisions contained in S.13(2) and R.9A of the Rules have been violated. In view of the finding that there was violation of the provisions contained in S.13(2) of the Act and R.9A of the Rules the learned Magistrate acquitted the accused. Hence this appeal.
2. Pw.l, the Food Inspector purchased 675 milli litres of buffalo milk after complying with the requirements laid down by the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules). Ext. P1 is the notification of the State Government authorising pw.1 to discharge all the functions of the Food Inspector under the Act. Ext. P2 is the copy of Form VI notice issued to the second respondent for the purchase of 675 milli litres of buffalo milk. Ext. P3 is the voucher given by the second accused on receipt of Rs. 2/-being the price of the quantity of milk purchased by pw.1. Ext. P4 is the copy of the mahazar prepared by pw. I when he purchased the milk and sampled the same, Ext. P5 is the copy of Form VII Memorandum prepared by the Food Inspector. Ext. P6 is the intimation sent to the Local Health Authority and Ext. P7 is the notification constituting the Local Health Authority. Ext. P8 is the report of the public analyst. It states that buffalo milk had a specific gravity of 1.024 at 30 decree C. The result of the analyst is Milk fat 5.6 per cent (as against 5 per cent fixed the Rules) and milk solids-not-fat 8.0 per cent (as against 9 per cent fixed under the Rules). The report further goes to show that the sample did not conform to the standard prescribed for the buffalo milk under the Rules and is therefore adulterated. The Public Analyst went on to state that the sample contains not less than 11 per cent of added water as calculated from the milk solids-not-fat content. Ext. P9 is the intimation sent by the Local Health Authority, to pw.1. After the complaint was filed the Local Health Authority sent an intimation under S.13(2) of the Act to the accused. Ext. PIO is the copy of that intimation. The accused got a sample sent to the Central Food Laboratory from court. The certificate issued by the Central Food Laboratory is Ext. P11. It states that the milk fat was 5.2 per cent and milk solids not fat is 7.9 per cent. That certificate further states that the sample was in a fit condition f
