Ramachandra Marthandan vs State by Inspector of Police, Civil Supplies C.I.D., Madras South Unit

H. Ramamurthi, J.—The appellant has preferred an appeal aggrieved against the conviction and sentence imposed by the learned Special Judge, Special Court (E.C. Act), Madras, in S.T.C. No. 21/91 dated 8.9.92, wherein he was found guilty under S. 3 of Tamil Nadu Scheduled Articles (Prescription of Standard) Order, 1977 read with 7(1)(a)(ii) of E.C. Act 1955, convicting and sentencing him to imprisonment till rising of Court and to pay a fine of Rs. 2000/-, in default to undergo rigorous imprisonment for six months.

The case of the prosecution in brief is as follows:-

The Inspector of Police, Civil Supplies, C.I.D., Madras South unit, lodged a complaint against the appellant under clause 3 of Tamilnadu Scheduled Articles (Prescription of Standard) Order 1977 read with 7(1)(a)(ii) of E.C. Act, 1955, alleging that P.W. 3 Sub Inspector of Police of Civil Supplies, C.I.D. Madras South Union, on 30.11.90 inspected ''Anandhi Oil Mills'' situated at No. 31, Pillayar Koil Street, Pallavaram, Madras-43. The appellant is the proprietor of the said shop. P.W. 3 purchased 525 ml. of gingelly oil for Rs. 16.80 in the presence of P.W. 1 and another after serving the notice under Ex. P.2. The Oil was filled in three bottles and P.W. 3 observed all the formalities. Ex. P1 is the mahazar for the said purchase. Ex. P3 is the bill. The samples were duly packed and sealed and one of the samples was sent to the Public Analyst, King Institute, Guindy, Madras for chemical analysis. P.W. 2 was examined to prove about the analysis and the report Ex. P4 was received to the effect that the sample is adulterated. Ex. P5 is the seal. P.W. 3 registered a case in Crime No. 334/90 and Ex. P6 is the first information report. M.Os. 1 and 2 are the other two sample bottles.

On behalf of the complainant, P.W. 1 to 3 were examined, Exs.P1 to P6 were marked and M.Os. 1 and 2 were produced. The Court below found the appellant guilty, convicted and sentenced him as aforesaid and aggrieved against this, the appellant has come forward with the present appeal.

The Learned Counsel for the appellant contended that the court below was not justified in convicting the appellant. The learned Sessions Judge failed to appreciate the fact that notice under S. 11(1) of the Prevention of Food Adulteration Act and Rule 12 was served on the appellant before taking sample. But there was no mention of the purpose for which the sample was taken. P.W. 3 has not followed the mandatory procedure prescribed under S. 13(2)(A), 13(2)(E) of Prevention of Food Adulteration Act. The appellant was denied the opportunity to get the sample re-analysed by the Central Food Laboratory and establish his licence, P.W. 3 is not a trained person for taking sample as per rule 8 of Prevention of Food Adulteration Rules. There is no proof that the sample sent by P.W. 3 was the same as that was analysed. Form 3 was not used by the Analyst.

On the other hand, the Learned Counsel representing for the respondent contended that the evidence of P.W. 3 clearly established that the appellant was selling gingelly Oil and it was purchased on payment of price with a specific direction that it was intended for the purpose of analysis. P.W. 1 is an independent witness and in his presence only, the mahazar was prepared. The samples were taken in accordance with law and they were duly packed and sealed and one of the samples was sent to the analyst for analysis and P.W. 2 categorically stated that the sample was adulterated. The prosecution has positively established the offence committed by the appellant. There is nothing in the Tamil Nadu Scheduled Articles (prescription of Standard) Order that the provisions of Prevention of Food Adulteration Act has to be scrupulously followed.

There is no dispute that P.W. 3 sub-Inspector of Police, Civil supplies, C.I.D. went to the shop of the appellant bearing door No. 31 Pillayar Koil Street, Pallavaram, Madras 43 on 30.11.90 for the purpose of taking sample in gingelly Oil on information that he was selling adulterated Oil. P.W. 3 purchased 525 ml. of gingelly Oil for Rs. 16.80 in the presence of P.W. 1 and another. But, however, P.W. 1 turned hostile. P.W. 3 stated that all the formalities were complied with in accordance with law and one of the samples alone was sent to the Public Analyst Guindy, for analysis and the report under Ex. P.4 was received to the effect that the sample was adulterated and thereafter the complaint was laid.

Learned Counsel for the appellant contended that P.W. 3 is not a competent person well versed in taking sample as provided under the Rules in Prevention of Food Adulteration Act. He further stated that the mandatory provisions under S. 11 and 13(2) of Prevention of Food Adulteration Act were also not duly complied with. Admittedly, immediately after receipt of the analyst report, the copy of the same was not given to the appellant so as to enable him to move the court for sending one of the samples for re-analysis by the Central Food Laboratory. In fact, P.W. 3 also admitted that the purpose for which the Oil was purchased was not intimated to the appellant. The procedure followed by P.W. 3 has also not been spoken to by him in the course of evidence. There is no evidence to show that P.W. 3 is a qualified person and there is no material to show that he was experienced in taking samples for the purpose of sending it to the Analyst.

Learned Counsel for the appellant relied on S. Arunachalam & others v. State rep. by the Inspector of Police, Tirunelveli (1993 L.W. Crl.211) , a decision of this Court, wherein it is stated as follows:

If the accused have a right under the provisions of the P.F.A. Act to forward a second sample to the Central Food Laboratory for analysis, that right cannot be negatived, when certain portions of the Act have been sought to be incorporated in the Order. The observations of the Supreme Court will rightly come into operation, for, there is no contrary mandate in the Order that the accused have no right to forward a second sample to the Central Food Laboratory, and if that be so, liberal construction to uphold the right of the accused will have to be adopted. Even otherwise, as stated earlier, the very introduction of Ss. 10, 11, 13(2-A) and 13(2-E) of the Prevention of Food Adulteration Act in the Order, automatically take in their fold the other parts of S. 13 of the Act, without which the very purpose of the Order, will stand thwarted. If the prosecution alleges that the food article sample was adulterated, the accused must be afforded an opportunity to show that the article was not adulterated by adopting a scientific interlude, which is guaranteed to him under S.13 of the Act.

The appellant also relied on a decision of this Court in R. Rathinaswmy and another v. The Inspector of Police C.S.C.I.D. Kancheepuram (1995 2 L.W.(CrL) 637) , wherein it is observed that it is fairly clear that beneficial provisions mandated in the Prevention of Food Adulteration Act will naturally apply to prosecutions under the order, since incorporation of certain sections of the Act, have been referred to in the Order. These sections cannot be considered in isolation, for then the logic behind the mentioning of those sections, gets lost, for, there is a connection between the sub sections mentioned in S. 11 of the Act and S. 13 of the Act.

Admittedly, in the present case, the mandatory provisions under Ss. 11 and 13(2) of the Prevention of Food Adulteration Act have not been followed. As adverted to, a copy of the analysis it report was not supplied to the accused. The aforesaid two decisions are clearly applicable to the facts on hand. Since the beneficial provisions mandated in the Prevention of Food Adulteration Act have not been duly complied with, I am of the view that it goes to the root of the matter and the principles of natural justice have been violated. The Court below has not appreciated these points and under the circumstances, me appellant cannot be found guilty of the offences charged against him.

In the result, the appeal is allowed and the conviction and sentence imposed on the appellant are set aside and he is found not guilty to the charge framed against him and he is acquitted. The fine amount if any paid by him shall be refunded to him.