Food Inspector, Bhimavaram Municipality Vs. Kopouravari Venkateswarulu - Court Judgment

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criminal - adulteration - sections 2, 7 and 16 of prevention of food adulteration act and rules 14, 15, 16, 17 and 23 of prevention of food adulteration rules - appeal by state assailing acquittal of accused - rule 14 required food inspector to collect samples only in suitable bottles or jars - samples were collected in polythene bags - any container which is otherwise suitable as container and which can be closed sufficiently tight and sealed, would fall under rule 14 - rule 14 does not preclude plastic container to be considered as suitable container - colouring material used by accused not permitted to be used under rules - prosecution established guilt of accused - held, accused guilty of offences and convicted under section 16. - - in some cases like sham lal v. none of those decisions, therefore, could be an authority for holding that if the container in which samples were sent, was a suitable container as was required by rule 14 of the rules and all other requirements of rules 15 to 17 were duly complied with, the prosecution should fail for the only reason that the material was not sent in a bottle or a jar. if the prosecution should fail in all cases where there is a distant possibility of tampering with the container, it may not be possible to sustain any proceeding under the prevention of food adulteration act.v. sivaraman nair, j.1. this appeal is filed by the state assailing the acquittal of the respondent-accused in c.c. no. 214 of 1991 by the ii addl. judl. first class magistrate, bhimavaram. 2. the matter comes before us on a reference by our learned brother justice g. radhakrishna rao. the reference was provoked by two decisions of justice y. bhaskara rao in k. kameswara rao v. state of a.p., 1990 aplj (crl) 189 and food inspector, karimnagar v. kothakonda shankar, 1991 aplj (crl) 116. 3. our learned brother justice y. bhaskara rao in the above two decisions held that if the samples of food articles, which were purchased by the food inspector, are sent for analysis in polythene bags, there will be violation of rule 14 of the prevention of food adulteration rules (hereinafter referred to as 'the rules'). in the former case, the learned judge set aside the conviction by the trial court and acquitted the accused. in the latter case, he dismissed the appeal filed by the food inspector, upholding the acquittal of the accused. in both these decisions, it was assumed that the only compliance with rule 14 of the rules shall be if the samples are collected and sent to the analyst in bottles or jars. in the latter decision, it was made clearer that rule 14 of the rules requires the food inspector to collect the samples only in suitable bottles. since the samples in that case were collected in polythene bags, the learned judge found that rule 14 of the rules was violated. in coming to the above conclusion, the learned judge, in the former decision, stated that this court had followed the judgment of the punjab and haryana high court regarding the said proposition. 4. rule 14 of the rules, which was said to have been violated, requires to be extracted. it reads : '14. manner of sending samples for analysis :- samples of food for the purpose of analysis shall be taken in clean drybottles or jars or in other suitable containers, which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.' 5. packing of the samples is required to be in dry bottles or dry jars or in any other clean and dry suitable container. it is elementary that a 'container' means that which contains, and ordinarily cannot exclude a container made of polythene. the requirements of rule 14 are that it shall be clean and dry : it shall further be suitable as a container. further requirements are that it shall be closed sufficiently tight to prevent leakage or evaporation. there is yet another requirement in case of dry substance that it shall also be closed sufficiently tight to prevent entrance of moisture. the last requirement is that the container shall be carefully sealed. we do not find that any one of these requirements militates against any suitable container, which satisfies all other requirements of rule 14, to be a 'suitable container' contemplated by the rule. 6. it is also necessary to refer to rule 15, which provides that provides that bottles and containers to be labelled and addressed; rule 16 which provides for 'manner of packing and sealing the samples', and rule 17, which provides for 'manner of despatching containers of samples'. there was no case before the trial court nor has counsel for the accused contended before us that the requirements of rules 15, 16 or 17 of the rules were not complied with. we have, therefore, to proceed on the basis that all the statutory requirements of sampling were complied with, and the only dispute relates to - whether a polythene container is a 'suitable container' as provided under rule 14 of the rules. 7. mr. b. nalin kumar, counsel appearing for the respondent, has invited our attention to a number of decisions of the punjab and haryana high court and one decision of the bombay high court in support of his submissions. the decisions of the punjab and haryana high court are those to which reference has been made by justice y. bhaskara rao in k. kameswara rao v. state of u.p. (supra). 8. in view of the importance of the point raised, we have gone through all the decisions to which counsel for the respondent has made a reference. the first of them is sham lal v. state of punjab, 1986 (2) fac 245. paragraph 3 of the above judgment states that the ground on which the complaint and the consequent proceedings were sought to be quashed was that the sample of chilly powder was not properly taken. though it was required to be sealed in dry bottles, the food inspector forwarded the same to the public analyst in packets. dealing with that fact situation, a learned single judge of the punjab and haryana high court held that the packets of chilly powder were sent for analysis in the original packing, whereas the consistent view of that court was that taking of a sample in a paper packing was in violation of the prevention of food adulteration rules and the same was fatal to the prosecution. 9. the next decision is sardari lal v. state of punjab, 1986 (1) fac 87. here again the samples were taken and sent in paper packets and that was found to be in violation of the provisions of rule 14 of the rules. in nasib chand v. the state of punjab, 1986 (1) fac 310, again the factual allegations were that the sample was divided into three parts and were packed in paper packets. the court reiterated its earlier decision referred to above. in pritam singh v. union territory, chandigarh, 1986 (1) fac 313, the samples haldi were sent in paper packets and not in sealed containers. that was held to be violative of rule 14 of the rules. in chand ram v. the state of punjab, 1986 (2) fac 1, the court intervened on the ground that the incriminating article was taken and sent by the food inspector for analysis in paper packets, which was not permissible under the law. in shiv dutt raj v. the state of punjab, 1986 (3) fac 13, also the samples were sent to the public analyst in paper packets instead of a container, which was held to be violative of rule 14 of the rules. 10. it is clear from the above decisions that the judgments were rested on a finding of fact to the effect that the requirements of rule 14 of the rules that the samples should be taken in clean dry bottles or jars or any other suitable container, which shall be closed sufficiently tight and carefully sealed, had not been complied with. in some cases like sham lal v. the state of punjab, (supra) the incriminating articles were sent in their original packing. in other cases, they were sent in paper packets. it was not found that the articles were sent in containers which were sufficiently tight or they were carefully sealed. we are, therefore, of the opinion that none of the decisions of the punjab and haryana high court, referred to above, dealt with the situation where a suitable container which was clean and dry and which was closed sufficiently tight to prevent leakage, evaporation or entrance of moisture and which were carefully sealed. none of those decisions, therefore, could be an authority for holding that if the container in which samples were sent, was a suitable container as was required by rule 14 of the rules and all other requirements of rules 15 to 17 were duly complied with, the prosecution should fail for the only reason that the material was not sent in a bottle or a jar. 11. in state of maharashtra v. prabhudas atalma baktani, 1986 (3) fac 221, patel, j. of the nagpur bench of bombay high court, dealt with a case of samples having been taken in plastic paper and not in any container which was closed sufficiently tight or carefully sealed. the learned judge held that the rule required that the sample should be sent to public analyst in dry and clean container and it was not contemplated that the sample should be sent in a plastic bag which could easily be tampered with. 12. counsel for the respondent urged before us that the 'suitable container' mentioned in rule 14 shall be of the same type and category as a bottle or a jar. he submitted that in other words, it shall be a container made of hard substance, which will be difficult to tamper with. we are not inclined to agree. if that is the intention, the words 'any other suitable container' would not have been used in the rule. the only requirement, according to us, is that it shall be a container capable of being closed sufficiently tight and sealed. it shall also be suitable as a container of food articles. it must be capable of being closed so as to prevent leakage or evaporation in the case of non-dry substances and of entrance of moisture in the case of dry substances. any container which is otherwise suitable as a container and which can be closed sufficiently tight and sealed, will fall within the requirements of rule 14 of the rules. 13. counsel submitted that it is easy to tamper with a polythene bag. this may perhaps be true. but, it shall rather be part of the defence of the accused during the course of trial of plead that either the container was not suitable, or that it was not closed sufficiently tight, or it had not been carefully sealed so as to prevent tampering with the sample. we have carefully perused the judgment. we have also examined the evidence which was led before the trial court. no such defence was raised during the course of trial. the mere possibility of tampering with containers is not confined only to plastic containers. it may equally apply to bottles and jars. if the prosecution should fail in all cases where there is a distant possibility of tampering with the container, it may not be possible to sustain any proceeding under the prevention of food adulteration act. we are, therefore, not persuaded to accede to this submission urged by the respondent. 14. the trial magistrate found the respondent - accused to have committed the offences with which he was charged, but acquitted him only on the basis of the alleged violation of rule 14 of the rules relying on the two decisions of sri justice y. bhaskara rao in k. kameswara rao v. state of a.p. (supra) and food inspector, karimnagar v. kothakonda shankar (supra) which we have referred to earlier. 15. we hold that the above two decisions do not reflect the correct position of law and they were rendered due to an obvious mistake as to the contents and comprehension of rule 14 of the rules. the only requirement of that rule is that the sample shall be sent in clean dry bottles or clean dry jars or other suitable clean dry container. apart from bottles and jars, other suitable containers are also within the comprehension of rule 14. we do not find anything in the rule which precludes a plastic container to be considered as a suitable container. we, therefore, overrule the decisions in k. kameswara rao v. state of a.p. (supra) and food inspector, karimnagar v. kothakonda shankar (supra). 16. we have adverted to the fact that the learned magistrate gave a positive finding that all the procedural requirements of the rules have been duly complied with. he also found that the evidence let in by the prosecution made out the offence with which the respondent-accused was charged. 17. section 2(ia)(a) of the prevention of food adulteration act defines 'adulterated' an article of food, if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. section 7(v) of the act prohibits manufacture, sale, etc., of certain articles of food and provides that no person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute any article of food in contravention of any other provision of this act or of any rule made thereunder. rule 23 of the rules provides that unauthorised addition of colouring matter to any article of food except as specifically permitted by the rules is prohibited. 18. the colouring matter, red tartrazine, which was used in the present case was undeniably one which was not specifically permitted by the rules. rule 28 of the rules deals with permitted colouring materials of coal tar base. red tartrazine is not a permitted colour. it is obvious, therefore, that the prosecution had wholly established the guilt of the accused. 19. once we find that the respondent - accused is guilty of the above offences, the only course open for us is to convict him under section 16 of the act and impose the punishment as provided thereunder. the minimum sentence is imprisonment, for a period of six months and a fine which shall not be less than rs. 1,000/-. counsel for the respondent pleaded that the offence was committed way back in 1990 and therefore, there is no need to convict the accused at this distance of time. since a statutory minimum punishment is prescribed, we have no course open except to impose that minimum punishment. 20. we, therefore, allow this appeal, convict the respondent-accused of offences under sections 2(ia)(a), 7(v) and 16(1)(a) of the prevention of food adulteration act and sentence him to undergo simple imprisonment for a period of six months as also to pay a fine of rs. 1,000/- in default he shall undergo imprisonment for a further period of two months. 21. appeal allowed.