State vs Santhanamariappan

Bellie, J.—This is an appeal by the State against an order of acquittal. The accused stood charged before the Sub Divisional Judicial Magistrate, Tuticorin under Ss. 7(1) 16(1)(a)(i) read with S. 2(ia)(a) and (m) of the Prevention of Food Adulteration Act, 1954.

According to the prosecution on 29.6.1985 at 4:00 P.M. the Food Inspector (P.W.1) from the shop of the accused purchased 540 grams of groundnut oil for sending it for analysis. He, as per the procedure laid down in law, divided it into the three equal parts in three bottles, scaled them and took the signature of the accused in the sample to be sent for analysis. Then on 1.7.1985 he packed the sample in the manner prescribed in the rules and sent it to the Public Analyst. The Analysis Report received was to the effect that the oil was adulterated. On the basis of it the Food Inspector filed a complaint before the Magistrate.

During the pendency of the proceedings the accused wanted the sample that was given to him to be sent to the Central Food Laboratory.

Accordingly it was sent by the Court and the certificate of the Director of Central Food Laboratory was received. It was found that there are some variations between the report of the Public Analyst and the certificate of the Director of the Central Food Laboratory. But like the Report of the Public Analyst according to the certificate of the Central Food Laboratory also the oil was adulterated.

The learned Magistrate acquitted the accused on two grounds. One is that since there are variations between the report of the Public Analyst and the certificate of the Director of Central Food Laboratory, and since the Certificate of the Central Food Laboratory supersedes the Public Analyst's report the prosecution could not continue the case and the accused can be prosecuted only on a fresh complaint based on the certificate of the Central Food Laboratory. Second is that the Food Inspector has to follow the procedure prescribed under Rule 16(d) and this he has followed on 1.7.1985 and not on the same day of taking the sample and this would vitiate the trial.

Now in the appeal it is contended that both the grounds stated by the learned Magistrate for acquitting the accused is not sustainable in law. It is contended that there is no law which says that when there are variations in the Report of the Public Analyst and the Certificate of the Central Food Laboratory, even though according to both the reports the oil is adulterated, only a fresh complaint can be filed on the basis of the Certificate of the Central Food Laboratory and therefore the prosecution now launched on the basis of the report of the public analyst cannot be maintained. I find much force in this argument.

As per S. 13(2-D) until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution. From this it would appear that a proceeding can continue only after receipt of the Certificate from the Director of the Central Food Laboratory. Now, as per S. 13(3) the Certificate issued by the Director of the Central Food Laboratory under Sub-Section (2-B) shall supersede the report given by the Public analyst under Sub-Section (1). From this it is apparent that after the receipt of the Certificate from the Director of the Central Food Laboratory the case must be proceeded with and decided on the basis of that Certificate. Therefore the argument that after the receipt of the Certificate from the Director of the Central Food Laboratory since there are variations between that Certificate and the Report of the Public Analyst, a fresh complaint shall be filed cannot be countenanced.

As regards the second point on the basis of which the Magistrate has acquitted the accused, in S. 11 of the Act the procedure to be followed by the Food Inspector has been prescribed. S. 11 (3) states that when a sample of any article of food or adulterant is taken under sub-section (1) or sub-Section (2) of S. 10, the Food Inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the case may be, in accordance with the rules prescribed for sampling, to the public analyst for the local area concerned. From this it is clear that by the immediately succeeding working day the sample shall be sent by the Food Inspector to the Public Analyst and it must be so sent in accordance with the rules prescribed.

Rule 16 deals with the manner of packing and sealing the samples and Rule 17 states about the manner of despatching containers of samples. The Food Inspector has stated in his evidence to the effect that the next day i.e. 30.6.1985 being a holiday he sent the sample to the Public analyst on 1.7.1985, and before sending it he followed the prescriptions under S.16(d). I think that there is nothing to say that the prescriptions under R.16(d) must be done on the very date of taking of sample. Thus I find both the grounds on which the learned Magistrate has acquitted the accused are not sustainable in taw.

Now, for the respondent - accused it is also argued that no consent or sanction in this case was obtained as required under S.20 . In this connection the learned Government Advocate appearing for the State brings to my notice G.O. Ms. No. 1861 (Health) dated 6.6.1956 and published in Part "A" page 350 of the Fort St. George Gazette dated 20.6.1956 under which a general sanction or consent has been given to all the Food Inspectors to institute proceedings. Therefore there is no merit in this submission also.

I find no other ground on which the accused is entitled for acquittal. In this view of the matter the appeal is allowed an the order of acquittal passed by the learned Magistrate is set aside and the accused is convicted of the charge.

As regards sentence, it is seen that the order of acquittal has been passed on 17.8.1987 and now six years has passed. Considering this special circumstances I think that the minimum sentence of six months and minimum fine of Rs. 500/- can be imposed. Accordingly the accused is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- in default to undergo R.I. for two months. In view of G.O. Ms. No. 296 dated 20.2.1993 the accused will be entitled to remission of sentence of six months. Therefore the accused need not surrender to custody. Time for payment of fine is two months from the date of receipt of the order by the trial Court.