Coriander power is not primary food provisions of the Act not attracted.

The accused in S.T. No. 146 of 1989 on the file of the Chief Judicial Magistrate, Ernakulam is the petitioner in this revision. The petitioner wascharged with the offences punishable under Secs. 2(1a)(m) , 7(1) and (v) and16(1)(a)(i) of the Prevention of Food Adulteration Act. After the trial, the learned Chief Judicial Magistrate found the petitioner guilty of the offences and convicted him. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000 in default to undergo simple imprisonment for three months. The petitioner challenged the conviction and sentence by filing Criminal Appeal No.230 of 1991 and the learned Second Additional Sessions Judge, Ernakulam by the impugned judgment confirmed the conviction and sentence. Hence this revision.

2. The prosecution version is as follows: On 23.5.1989, P.W. 1, the Food Inspector, Corporation of Kochi visited the provision shop by name ‘Samma Rava Centre’ belonging to the first accused. After revealing his identity and service of Form VI notice, P.W.1 purchased 600 gms. of corriander power from the petitioner (second accused) who was attending to sales in the shop. He divided the corriander powder into three equal samples. The sampling was done in accordance with the provisions of the Act and Rules. One sample was sent to the Public Analyst and the remaining two to the Local Health Authority. On analysis, the Public Analyst reported that the sample did not conform to the standards prescribed for coriander powder under the Prevention of Food Adulteration Act and Rules and therefore adulterated. Accordingly, the complaint was filed. Since, the first accused in the case was absconding, the case against him was split up. The petitioner, who is the second accused denied the charge.

3. In order to prove the guilt of the petitioner, the prosecution examined P.Ws. 1 to 4 and marked Exs.P-1 to P-12. The defence examined three witnesses as D.Ws. 1 to 3 and marked Exs.D-1 and D-2.

4. The learned counsel for the petitioner strongly contended that both the Courts below have seriously erred in finding that it was the petitioner who sold the coriander powder to the Food Inspector. According to the learned counsel, in view of the admission made by P.W. 4, the lower Court ought to have found that the petitioner was not the salesman of the shop at the relevant time. He further contended that the Courts below should have found that the petitioner is entitled to the benefit of the proviso to Sec.2(ia) (m) of the Act. On the other hand, the learned Public Prosecutor supported the order of conviction and sentence passed against the petitioner and urged that there is no ground for interference.

5. It is not disputed that P.W. 1 visited the shop on 23.5.1989 and purchased 600 gms of coriander powder. It is also not seriously disputed that the sample sent to the Public Analyst was found to be adulterated on analysis. The dispute is with regard to the person from whom P.W. 1 purchased the coriander powder. According to the prosecution, it was the petitioner who sold the coriander powder to P.W. 1 while according to the petitioner he was not the vendor of the article of food and it was P.W. 4 who sold the adulterated article to the Food Inspector. On a consideration of the evidence brought on record, both the lower Courts have found that petitioner was the vendor of the article of food to the Food Inspector. I see no reason to take a deferent view. The Food Inspector as P.W. 1 has asserted in his evidence that he purchased 600 gms. of corriander powder from the petitioner and paid the price. Ex.P-2 is the copy of Form No. VI notice issued to the petitioner and Ex.P-2(a) is the acknowledgment of receipt of notice. It is also deposed by P.W. 1 that it was the petitioner who issued Ex.P-3 bill after accepting the price. According to P.W.1 at the time when he visited the shop, the petitioners was in control of the shop and he did not see any other person attending to sales i