Coromandal Distributors and Another vs Food Inspector and Others

D. Sreedevi, J.—Petitioners are accused Nos. 5 and 6 in S.T. No. 20 of 1992 of the Judicial First Class Magistrate Court, (Mobile), Alappuzha. The first Respondent is the Food Inspector attached to the Alappuzha Municipality. The second Respondent is the Proprietor of a Bakery at Alappuzha, from whom the first Respondent purchased 900 grams of curry powder on 31st March 1988. The curry powder was sent for analysis. The report of the public analyst goes to show that it does not conform to the standard prescribed for curry powder under the Prevention of Food Adulteration Act and Rules. Annexure-A is the report of the analyst. Respondents 3 to 5 were made co-accused in the case on the allegation that the second Respondent purchased the curry powder from them, as per bill dated 3rd December 1988 Annexure-B is the copy of complaint filed by the first Respondent-Food Inspector. The present Petitioners were impleaded as per order dated 22nd April 1991 on Annexure-C petition as they were alleged to be the manufacturers of the curry powder. In pursuance of the summons, the Petitioners appeared before the Court on 30th March 1992 and pleaded not guilty. They parted with the curry powder in December, 1988.

The Petitioners filed a petition to send the second sample for analysis to the Central Food Laboratory, Pune. Annexure-D is "the report, which goes to show that the sample is completely deteriorated in condition, having off colour and hence It is not fit for analysis. Therefore, the learned Magistrate suo motu sent die third sample to the Central Food Laboratory, Pune for analysis. That was tested. Annexure-E is the report. This goes to show that the moisture content is 25.5 per cent. According to the Director, the sample does not conform to the standards of curry powder as per P.F.A. Rules, 1955. The learned Counsel for the Petitioners submitted that the action of the learned Magistrate in proceeding with the case against them is not legal. The Director of Central Food Laboratory has certified that the sample sent to him was decomposed and unfit for examination. It is a known fact that the curry powder is subject to speedy decay and decomposition. Two parts of the sample have been sent to the court and out of this only one part was sent to the Director, Central Food Laboratory. Under Sub-section (2C) of Section 13 of the Act, the Court shall as soon as practicable return the remaining part to the Local (Health) Authority and that authority shall destroy that part after the certificate from the Director of Central Food Laboratory has been received by the Court. But the proviso to this section is to the following effect; that

Where the part of the Sample sent by the Court to the Director of Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof the Court shall proceed in the manner provided in Sub-section (2B).

In this case, the sample which was sent at the instance of the Petitioners as contemplated under Sub-section (2B) was found to be decomposed and unfit for analysis. The section only provides that the third sample can be sent to the Director of Central Food Laboratory, only if the second sample already sent is either lost or damaged.

The question is whether the sample decomposed can be said to be damaged or lost.

The Director of Central Food Laboratory has certified as follows:

the condition of seals on the container and the outer covering, on receipt was as follows: ''The seals were in tact properly fastened and tallied with the specimen impression of the seal received separately from the Hon''ble Court.

From this it is clear, that the sample is not lost or damaged, as it was received by the Central Food Laboratory. The contents of the bottle also cannot be laid to be damaged, as the bottle in which the sample was kept was quite intact and seals were also not tampered with. Therefore, it cannot be said that the sample already sent o the Laboratory is lost or damaged. Sub-section (2G) of Section 13 of the Act provides, that only when the 2nd sample is lost or damaged the court can order that the third sample be sent to the Central Food Laboratory. Sub-section (3) of Section 13 of the Act attaches finality to he certificate issued by the Director of Central Food laboratory. The Andhra Pradesh High Court in re Kada Sembamurty 1973 All FAC 178, held as follows:

When once the report is received, the proviso to Sub-section(5) if Section 13 makes the said report final and conclusive evidence of he facts stated herein. The remedy available u/s 13(2) if the Act is valuable right. Parliament in its wisdom attaches greater sanctity and accuracy to the report of the Director, Central food Laboratory u/s 13 of the Act. Although there is no specific prohibition for entertaining a second application for sending he third sample also to the Director for examination, the intention hat the second application is not permissible for sending the sample ''or a second time to the Director is clear from the proviso to Sub-Section (5) of Section 13 which makes the certificate signed by the Director of Central Food Laboratory final and conclusive. Therefore, 10 further evidence can be adduced to challenge the opinion of the director given u/s 13(2) of the Act.

At the time of purchase of the article, the first Respondent was aware that the manufacturer of the article was "Golden Dragon" of Coromandal Distributors. Therefore, the Food Inspector should have impleaded these Petitioners as accused in the complaint itself. That was lot done. The complaint was filed as S.T. No. 17 of 1989, which was subsequently renumbered as S.T. No. 20 of 992. But these Petitioners were summoned to appear by the court only on 30th March 1992, i.e., long aft� he complaint was filed. This curry powder contain salt. The moisture contents may increase due to nature by lapse of time. Even the Central Food Laboratory tested the sample only after three years an seven months. It is significant to note that Respondent 3 to 5 purchased the article on 28th November 1988 and the sampling in the case was done on 31st March 1988. The Petitioners were made accused after a long lapse time, after the sampling was made. The trial of this case against the Petitioners is an abuse of the process of this Court, as it will result in manifest injustice to the Petitioner. There are no valid ground to proceed against them.

In the result, the Crl. M.C. is allowed and all the proceedings under Annexure-B pending before the Judicial First Class Magistrate''s Court, Alappuzha, against the Petitioners, are quashed.