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1978 Supreme(Ker) 108
Judges : S.K.KADER
FOOD INSPECTOR - Appellant
Versus
GOVINDAN - Respondent
Case No : Crl.A. No. 399 of 1977
Decided On : 06/20/1978
Advocates Appeared :
State Prosecutor; For Appellant P. V. Madhavan Nambiyar; N. Balaraman Pillai; For Respondent
Substantial compliance with procedural rules, admissibility of the Public Analyst's report, and interpretation of rules to promote the aim of the legislation without giving undue advantage to the guilty.
Headnote:
Prevention of Food Adulteration Act - Acquittal - S.16(1)(a)(i), S.7(1) - R.18 - S.11, R.14-22 - The court discussed the provisions of the Prevention of Food Adulteration Act, particularly S.16(1)(a)(i) and S.7(1), and the rules R.18, R.14-22. The court emphasized the importance of proper identification and prevention of tampering with the sample, and the admissibility of the Public Analyst's report. It held that substantial compliance with R.18 is required and that the report of the Public Analyst is admissible in evidence without formal proof, with a rebuttable presumption. The court also highlighted the need to interpret the rules to promote the aim of the legislation without giving undue advantage to the guilty.
Fact of the Case:
The respondent was acquitted of selling adulterated milk due to non-compliance with R.18 of the Prevention of Food Adulteration Act. The trial court found the respondent guilty based on reliable evidence, but the appellate court acquitted him solely on the ground of non-compliance with R.18.
Finding of the Court:
The court found that there was strict compliance with R.18 and no prejudice to the accused. It set aside the acquittal and directed the appellate court to consider the appeal on its merits.
Issues: The issues involved non-compliance with R.18, admissibility of the Public Analyst's report, and the appellate court's failure to consider the appeal on its merits.
Ratio Decidendi: The court emphasized the need for substantial compliance with R.18, the admissibility of the Public Analyst's report without formal proof, and the interpretation of rules to promote the aim of the legislation without giving undue advantage to the guilty.
Final Decision: The order of acquittal was set aside, and the appellate court was directed to restore the appeal to file and dispose of the same afresh on merits in accordance with law and the judgment.
1. This appeal filed by the State challenges an order of acquittal of the respondent, the first accused, in a case under the Prevention of Food Adulteration Act, hereinafter called 'the Act', passed by the Additional Sessions Judge, Tellicherry, in Crl. Appeal No. 94 of 1977.
2. The case against the respondent was that at 9.15 a.m. on April 4,1975, Pw. I, the Food Inspector, purchased 660 ml. buffalo Milk from the respondent out of a can containing 15 litres of buffalo milk, which he had brought for sale in the tea-shop run by one Kunhandan Nambiar, after complying with the due formalities under the Act and that the sample purchased was, on analysis, found to be adulterated. It was after serving Form VI notice on the respondent that Pw.l effected the purchase. Ex. P2 is the cash voucher issued by the respondent acknowledging the receipt of the price and Ext. P3 is the mahazar prepared on the spot attested by witnesses. As per Ex. P5, the report of the Public Analyst, the sample did not conform to the standard prescribed for buffalo milk and in addition it contained 35% of added water.
3. In support of the prosecution case, Pw. 1, the Food Inspector, Pw. 2, his peon and Pw. 3, the Executive Officer of the Panchayat, were examined and certain documents including Exts. P2, P3 and P5 were marked.
4. The plea of the respondent was one of bare denial. He had no witness to be examined on his side.
5. The trial court on a due consideration of the evidence adduced by the prosecution found it reliable, accepted the same and held the first accused guilty of the offence punishable under S.16 (1)(a)(i) read with S.7 (1) of the Act, and convicted and sentenced him thereunder to suffer simple imprisonment for six months and to pay a fine of Rs. 1000/-or in default to suffer simple imprisonment for four months. The second accused who was said to be the owner of the milk was acquitted.
6. On appeal filed by the respondent, the learned Additional Sessions Judge acquitted him on the only ground that the Food Inspector had not complied with R.18 of the Rules framed under the Act and therefore "it cannot be held that there was sale of adulterated milk".
7. The procedure to be followed in taking samples of an article of food and sending them to the Public Analyst is laid down in S.11 of the Act and R.14 to 22 of the Prevention of Food Adulteration Rules. R.18 reads:
"Memorandum and impression of seal to be sent separately A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him".
The object of R.18 is mainly to secure a proper identification of the sample and also to prevent tampering with the sample by ensuring accuracy of the seal or the sample sent to the Public Analyst by comparison with the impression of the seal sent by the Food Inspector. The use of the word "shall" in R.18 does not make it necessarily mandatory, although it may indicate on its face that an imperative duty is cast on the Food Inspector. While considering whether this rule is mandatory or directory, the whole purpose and context of this provision has to be borne in mind. The very object of the relevant provisions in the Act is to ascertain by a correct and proper analysis as to whether an article of food sent for analysis was adulterated or not and to secure the conviction of an accused person dealing in adulterated articles of food. It may not be proper to discard the report of a Public Analyst merely on the ground that this rule has not been strictly complied with. ,
8. By virtue of S.13 (5) of the Act, the report of the Public Analyst is per se evidence. R.7 and 18 have to be read together. R.7 speaks of the duties of the Public Analyst. Under R.7, the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression of the seal sent to him separately by the Food Inspector and he has t
