The Food Inspector failed to establish the necessary jurisdictional facts for sampling, resulting in the acquittal of the accused due to reasonable doubt.

1Aggrieved by the verdit of guilty, conviction and sentence under S.16(1)(a)(i) and S.7 of the Prevention of Food Adulteration Act, the petitioners (accused 1 and 2) have preferred these revision petitions.

2The prosecution alleged that accused No.2 on behalf of accused No.1, licensee of Sona Restaurant at Paramount Tower, Calicut had sold 750 ml of milk to the Food Inspector, PW.3, which, on analysis was found not to comply with the standards prescribed for buffalo's milk under the relevant Rules. It was alleged that thereby the accused had committed the offence alleged against them.

3The accused denied the offence alleged against them. Thereupon the prosecution examined PWs.1 to 4 and proved Exts.P1 to 5. PW.3 is the Food Inspector and PW.4 his Peon. The accused No.1 took the stand that she had no connection with the establishment. Accused No.2, inter alia, contended that there was no proper sampling. The Food Inspector had no jurisdiction to draw the sample as the milk was not intended to be sold as such milk at the Restaurant. It was further contended that at any rate it must be held that there is no adulteration as the sample does conform to the standards prescribed for cow's milk and the standards applicable for buffalo's milk were wrongly applied to the sample. Another employee of the Restaurant was examined as DW.1. Ext.D1 menu card of the Restaurant was also produced and marked. A Court exhibit was marked as Ext.C1.

4The courts below concurrently came to the conclusion that the first accused is the licensee and the second accused an employee under her. The courts found that all the ingredients of the offences have been established satisfactorily. Accordingly, the Courts proceeded to pass the impugned judgments.

5Arguments have been advanced before me. Four contentions are raised by the learned counsel for the accused / revision petitioners. First of all it is contended that there is no evidence to show that the first accused is the licensee. The very suggestion is that the first accused is only the wife of the owner of the Restaurant. Connection between the Restaurant and the family of the accused is thus not disputed. The courts below took note of Ext. P14 application and Ext.C1 extract. I find absolutely no merit in the challenge raised against the concurrent finding that the accused No.1 is the licensee in respect of the premises from where the sample was drawn. The challenge on this ground fails.

6Secondly, placing reliance on the dictum laid in Mohammedkutty v. Food Inspector (1996 (2) KLT 569) it is contended that the sample has not been made homogenous either before or after the purchase. The Food Inspector has no obligation to make the sample homogenous before he purchases the same from the vendor. After purchase it is trite that in respect of certain articles whose nature and constitution is likely to be altered or interfered with, some procedure to make the sample purchased homogenous before it is divided into three parts must be followed by the Food Inspector. In the instant case we have the evidence of the Food Inspector that the vendor poured the milk into a vessel and that sample was divided into three equal parts by him in accordance with the Rules. I have gone through the cross examination in detail. There was no whisper of a contention that the sample was not made homogenous. When the Food Inspector asserted on oath that the sample purchased was divided into three equal parts and poured into three sample bottles in accordance with the Rules, it must be assumed that the necessary requirements of law have been satisfied by him. In the total absence of any specific challenge about the manner in which the sample was divided into three equal parts, I can find no merit in the challenge made at later stages of the trial on the ground that the samples taken in the three bottles were not homogenous. The challenge on this ground must also hence necessarily fail.

7Thirdly, it is contended that the proviso to S.10(2) o