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1967 Supreme(Ker) 132
Judges : K.K.MATHEW,K.SADASIVAN
FOOD INSPECTOR, CALICUT CORPORATION - Appellant
Versus
PADMANABHAN NAIR - Respondent
Case No : Crl. Apl. No. 370 of 1966
Decided On : 07/05/1967
Advocates Appeared :
K. P. G. Menon; For Appellant K. Ramakumar; For Respondents State Prosecutor; For State
The absence of independent witnesses during the Food Inspectress's action does not necessarily invalidate the proceedings, and evidence of managing partnership should be properly considered.
Headnote:
Food Adulteration - Food Inspectress - Prevention of Food Adulteration Act, S.16(1)(a)(i) - S.10(7)
Fact of the Case:
The Food Inspectress purchased ice cream from a hotel and found it to be adulterated. The accused were acquitted by the Magistrate due to procedural irregularities and lack of evidence of managing partnership.
Finding of the Court:
The court found that the absence of independent witnesses during the Food Inspectress's action did not necessarily invalidate the proceedings. The court also noted that the evidence of managing partnership was not properly considered.
Issues: The main issues were the validity of the Food Inspectress's proceedings and the evidence of managing partnership.
Ratio Decidendi: The court held that the absence of independent witnesses did not automatically invalidate the proceedings, and the evidence of managing partnership needed further consideration.
Final Decision: The court set aside the acquittal and directed a re-trial of the case.
1. This is an appeal with leave by the Food Inspectress, Calicut Corporation, the complainant in C. C. No. 242 of 1965 on the file of the District Magistrate, against an order acquitting the accused of an offence punishable under S.16 (1) (a) (i) of the Prevention of Food Adulteration Act, hereinafter referred to as the Act.
2. The case of the complainant may be briefly stated. On 22 41965 the Food Inspectress visited the Santha Bhavan hotel situated within the limits of the Calicut Corporation and purchased from the 1st accused who was in charge of the hotel 10 cups of ice cream from a stock of about 40 cups of ice cream manufactured and kept for sale in the ice cream plant in the hotel. The Food Inspectress paid Rs. 4/- to the 1st accused as the price of the ice cream purchased. The 1st accused gave Ext. P-1 receipt for it. Thereafter, she duly sampled the ice cream in three bottles after adding the required quantity of preservative formalin in the presence of the 1st accused. Of the purchase and sampling she prepared Ext. P-2 mahazar. The 1st accused and three witnesses signed in it. The sale of the ice cream by the 1st accused and the sampling of the same were acknowledged in writing by the 1st accused (Ext. P-2a). The report of the Public Analyst to whom the sample was sent for analysis stated that the ice cream was sub-standard and therefore was adulterated. Ext. P-3 is the report. On the basis of the report the complaint was filed against the 1st accused, and accused 2 and 3 as managing partners of the United Hoteliers.
3. The learned Magistrate acquitted the accused.
4. Two main reasons are given by the learned Magistrate for acquitting the accused: (1) that the Food Inspectress has not observed the provisions of S.10 (7) of the Act in that no independent person was called to be present at the time of her action, and therefore, the proceedings of the Food Inspectress relating to the purchase of and sampling of the ice cream are invalid, and no prosecution can be based on such invalid proceedings; and (2) that there is no evidence to show that accused 2 and 3 are the managing partners of the United Hoteliers, and therefore, they cannot be saddled with any liability. He also held that even if they are proved to have been the managing partners there is no evidence to show that they were in charge of the hotel at the material time.
5. Therefore, the two main questions for consideration in this appeal are whether the proceedings of the Food Inspectress in respect of the purchase and sampling of the ice cream are invalid for the reason that she has not called an independent person to be present at the time of her action, and whether accused 2 and 3 were the managing partners of the United Hoteliers. S.10 (7) of the Act reads as follows:
"Where the Food Inspector takes any action under clause (a) of sub-section (1), subsection (2), sub-section (4), or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures."
The object of calling persons to be present at the time when action is taken by Food Inspector is to ensure the regularity and to secure evidence of the action of the Food Inspector. The Legislature must have thought that the presence of a person at the time would secure the regularity of the action by Food Inspector. It is, therefore, only proper to infer an intention on the part of the Legislature that the persons witnessing the action must not be under the influence of the Food Inspector, as otherwise the object of calling them to be present at the time of the action would be defeated. The learned Magistrate has relied on the ruling of a learned Single Judge of this Court in Subramonian Chettiar v. Food Inspector 1966 KLT. 788 and said that the persons called by the Food Inspectress to be present at the time of her action are not independent, and therefore, the proceedings by her relating to the purchase and sampling were bad, and can
