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1970 Supreme(Ker) 144
Judges : P.T.RAMAN NAYAR,K.K.MATHEW
FOOD INSPECTOR, COCHIN CORPORATION - Appellant
Versus
K.M.ALIKUNJU - Respondent
Case No : Crl. A. No. 192 of 1970 from C. C. No. 279 of 1968 of Addl. First Class Magistrate s Court, Ernakulam
Decided On : 10/05/1970
Advocates Appeared :
V. Parameswara Menon; For Appellant V. K. Hamza; N. N. Narayana Pillai; K. Sikhivahanan; For Respondents State Prosecutor; For State
The absence of a preservative in a food sample is not necessarily fatal to the prosecution, and the accused can be convicted for breaching rules related to the addition of artificial sweeteners to food.
Headnote:
Acquittal - Food Adulteration - Prevention of Food Adulteration Act - S.417, S.10, S.11, S.342, S.13, S.2(i)(a), R.19, R.47, R.44(g), S.16(1)(a)(ii) - The court discussed the provisions of the Prevention of Food Adulteration Act, particularly focusing on the requirements for taking and analyzing food samples, the addition of preservatives, and the conditions for adding artificial sweeteners to food. The court disagreed with the previous ruling that the failure to add a preservative was fatal to the prosecution and held the accused guilty of breaching the rules related to the addition of artificial sweeteners to prepared tea. The court also convicted the accused under S.16(1)(a)(ii) of the Act.
Fact of the Case:
The complainant, a Food Inspector, obtained tea samples from the accused for analysis. The analysis revealed the presence of an artificial sweetener. The accused did not challenge the evidence or exercise his right to have the sample analyzed independently. The lower court acquitted the accused based on the absence of a preservative in the sample.
Finding of the Court:
The court disagreed with the lower court's ruling and convicted the accused under S.16(1)(a)(ii) of the Prevention of Food Adulteration Act for breaching the rules related to the addition of artificial sweeteners to prepared tea.
Issues: The issues revolved around the admissibility of the analysis results, the requirement for adding preservatives to food samples, and the breach of rules related to the addition of artificial sweeteners.
Ratio Decidendi: The court held that the absence of a preservative in the sample was not fatal to the prosecution, and the accused was guilty of breaching the rules related to the addition of artificial sweeteners to prepared tea.
Final Decision: The court allowed the appeal and convicted the accused under S.16(1)(a)(ii) of the Prevention of Food Adulteration Act. The accused was released on probation of good conduct.
1. This appeal against acquittal, brought under subsection (3) of S.417 of the Criminal Procedure Code, has been referred to a division bench by the learned judge who heard it in the first instance - he thought that the single judge ruling in Food Inspector, Tellicherry v. Chandu 1969 KLT 709 on which the acquittal was based required reconsideration.
2. On 8-7-1968 pw.1, the complainant, a Food Inspector of the Cochin Corporation, went to the tea-shop of the accused and obtained twelve glasses of tea for analysis duly complying with the provisions of S.10 and 11 of the Prevention of Food Adulteration Act. Analysis disclosed that the tea contained 50 parts per million of an artificial sweetener, saccharin Ext. P5 is the report of the Public Analyst. (The certificate is dated the 23rd September 1968, but does not disclose, what would be far more useful in such cases, namely, the date the analysis was made). When questioned under S.342 of the Code, the accused was content with the statement that he had not added any saccharin or other artificial sweetener to the tea. He did not deny the taking of the sample by pw.1 or controvert the evidence of pw.1 which showed that the sample was taken in full compliance with the requirements of S.10 and 11 of the Act. Had be chosen to do so, it might have been a matter for consideration whether pw.1's testimony was worthy of acceptance in view of his statement therein that he asked the accused to give him twelve glasses of tea prepared in boiling water with sugar, milk and tea-powder. This extremely factitious statement as if anybody ordering tea would give these specifications, and as if the accused who must have known that pw.1 was a Food Inspector, would have made him tea with saccharin! was obviously with an eye to the definition of, "adulterated" in S.2 (i) (a) of the Act.
"If the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser, and, is to his prejudice xxx"
and we cannot too strongly deprecate such misconceived attempts by the prosecution to "plug in loopholes" as it is commonly described. However, since the accused neither challenged the evidence of pw.1 either in the cross-examination of the witness or in his own statement, nor made any attempt to exercise his right under sub-section (2) of S.13 of the Act to have the part of the sample left with him or the part retained under S.11 (1) (c) (i) and (iii) of the Act sent for analysis, we must take it that the accused "sold" tea which on analysis was found to contain saccharin.
3. In acquitting the accused, the learned magistrate held, following the decision in Food Inspector, Tellicherry v. Chandu,1969 KLT. 709 that no reliance could be placed on the result of the analysis since admittedly pw.1 had added no preservative to the tea before sending it for analysis. That was also a case of an artificial sweetener in tea, and the learned magistrate relied on the following passage in the judgment:
"It has come out in evidence that the sample taken by the Food Inspector was not treated with a preservative before it was sent to the Public Analyst for analysis. It is obvious that prepared, tea, if not treated with a preservative, cannot retain its characteristics for a long time. The certificate of the Public Analyst is dated 17th October 1967, whereas the sample was taken from the respondent on 28th August 1967. Obviously, no reliance can be placed on the evidence furnished by the report of the Analyst."
Now, it seems to us clear that saccharin is a substance entirely foreign to the ingredients, milk, water, sugar and tea out of which tea is prepared and that, having regard to the chemical composition of these various substances, saccharin cannot be produced by any process of decomposition which, what has been called prepared tea might suffer, howsoever long it is kept. The purpose of adding a preservative is to ensure that the sample of food taken does not, by any decomposition suffered before
