The Public Prosecutor Vs. Kota Venkata Subramma and ors. - Court Judgment

Kondaiah, J.

1. This batch of Criminal Appeals by the State have been preferred against the orders of acquittal passed by the Courts below boding that the provisions of Section 10(7) of the Prevention of Food Adulteration Act have not been complied with and acquitting the accused.

2. Criminal Appeals 816/65 and 818/65 are against the orders of acquittal passed by the Addl. District Munsif-cum-First Class Magistrate, Guntur in C. C. Nos. 329/64 and 25/65 for the offence of selling adulterated milk by the accused on 26-6-64 and 22-9-64 respectively at Guntur. Criminal Appeals 844/65 and 845/65-are against the orders of acquittal passed by the Addl. District Munsif Magistrate, Eluru in C. C. Nos. 118/65 and 95/65 for selling adulterated milk on 24-4-65 and 27-4-65 respectively at Eluru. Criminal Appeal 22/66 is against the judgment of the Additional District Munsif Magistrate, Amalapuram in C. C. No. 101/65 acquitting the accused for the charge of being in possession of adulterated cow and buffalo milk for the purpose of sale at Amalapuram on 20-3-85.

3. In all the cases, one common ground, apart from other reasons, on which the Courts below have acquitted the accused is that the provisions of Section 10(7) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) have not been complied with Criminal Appeals 816/65 are governed by the unamended provisions of Section 10(7) of the Act, whereas the other three cases are governed by the amended provisions of Section 10(7) which came into effect from March 1, 1965.

4. It is necessary and relevant to consider the facts of Criminal Appeal No. 816/65. The case of the prosecution is that at about 7-15 A. M. on June 26, 1964 near Seshmahal in Arundelpet, Guntur, the 2nd accused, who is the daughter of the 1st accused, was found in possession of four seers of buffalo milk intended for sale, that the Food Inspector (P. W. 1) purchased half a seer of milk for 43 paise in the presence of P. Ws. 2 and 8 and obtained a receipt Ex. P.1 and recorded a statement Ex. P-8 from A. 2 attested by P. Ws. 2 and 3, that he divided the sample of milk into three parts and put the same into three dry and clean bottles and sealed them and sent one of the three bottles for examination to the Public Analyst at Hyderabad, who issued the certificate Ex. P-4 to the effect that the milk sample contained 32% of added water and hence the accused adulterated the milk, punishable as per the provisions of the Act.

5. The prosecution examined P. W. 1, the Food and Sanitary Inspector, who purchased the sample of milk from A.2 and sent the sample to the Public Analyst. P. W. 2, the peon under B. C. G. Health Inspector, Guntur, is an attestor to Ex. P-8. P. W. 3 is the sanitary maistry working under P. W. 1. The accused pleaded not guilty. A.2 spacifically stated that she is not doing any business in milk but she was getting the milk in a small brass vessel from her father A-l for personal consumption in her house and that she did not give any statement to P. W 1 nor received 48 paise as alleged by the prosecution. The Court below held that A 2 was in possession of about 4 seers of adulterated buffalo milk intended for human consumption at about 7.15 A. M. on June 26, 1964, that the prosecution failed to establish that A-2 was in possession of milk for sale as agent of A.1, that there was no mediator's report as such nor a memorandum written by P. W. 1 and that there were independent persons available as mediators but P. W. 1 did not make any attempts worth mentioning to secure the second mediator. Hence relying upon the decision of this Court in Public Prosecutor v. Thumugunta Seshaiah (1963) 1 Acdh W R 296 : AIR 1934 Andh Pra 25 the lower Court held that the provisions of Section 10(7) of the Act were not complied with and acquitted the accused; hence the appeal by the State.

6. The learned Public Prosecutor urged as follows: --

(1) that the Court below erred in holding that the provisions of Section 10(7) of the Act have not been complied with and the provisions of Section 10(7) are only discretionary but not mandatory and the decision of the single Judge relied on by the Court below is not correct; and

(2) that the facts of the case do not warrant an acquittal as the offence has been proved by the prosecution beyond reasonable doubt.

The learned Counsel for the respondents contended contra. In any event, it is contended that there are no valid or justifiable grounds for the interference of this Court in an appeal against acquittal.

7. For a proper appreciation of the points that arise for determination in his case, it is necessary to consider the scope and relevant provisions of the Act. On account of the over population and the prevalent scarcity of the essential commodities, in particular the food articles, the tendency for the unsocial and interested elements in the country to adulterate the essential commodities and the food articles in particular, has been on increase. The Parliament, in the circumstances, has stepped in and passed the Prevention of Food Adulteration Act (Act 37 of 1954) having its operation to the whole of India except the State of Jammu and Kashmir and made the sale, storage, agreement to sell or manufacture for sale of any adulterated article of food in. tended for human consumption, a cognisable offence punishable with imprisonment or with fine or both.

8. Section 2(i) defines the expression 'adulterated' as under:--

2 (i) 'adulterated'--an article of food shall be deemed to be adulterated:

(a) 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:

(b) if the article contains any other substance which affects or if the article is so processed as to affect, injuriously the nature, substance or quality thereof:

(c) if any inferior or cheaper substance has been substituted wholly or in part for the article go as to affect injuriously the nature, substance or quality thereof:

* * *(1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability:

* * *Section 2(v) defines 'food' as 'any article used as food or drink for human consumption other than drugs and water and includes -

(a) any article which ordinarily enters into, or is used in the composition or preparation of human food; and

(b) any favouring matter or condiments.' Section 2(xiii) defines 'sals' as under: --'Sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by whole sale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article and includes also an attempt to cell any such article;

Section 3 enables the Central Government to constitute the Central Committee for Food Standards to advise it and the State Governments on matters arising out of the administration of this Act and to carry out the other functions assigned to it. Section 4 provides for the establishment of a Central Food Laboratory and defines the functions thereof. Section 5 prohibits the import into India of any adulterated or migbranded food. Section 7 prohibits the manufacture for sale or storage, sale or distribution of any adulterated or misbranded food. By Sections 8 and 9, the Central Government or the State Governments are authorised to appoint the public analyst and the food inspectors respectively for such local areas as may be assigned to them. Section 10(1) empowers: food inspector to take samples of any article of food from any person selling or in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee, or from a consignee after delivery, and send such sample for analysis to the public analyst with the previous approval of the local Health Officer or the Food Authority to prohibit the sale of any such article of food in the interests of public health. Section 10(2) authorises the food inspector to enter and inspect any place where an article of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis. The food inspector has to pay the cost price of the article taken or seized by him under Clause (a) to Sub-section (1) or Sub-section (2) of Section 10. The food inspector is empowered to seize and carry away or keep in safe custody of the vendor if any article intended for human consumption as food appears to have been adultered or misbranded. Sub-section (7) to Section 10 prior to 1-8-1965 reads thus: --

Where the Food Inspector takes any action under Clause (a) of Sub-section (2), Sub-section (4), or subs. (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures.

The aforesaid provision has been amended by Section 6(3) of Act No. 49 of 1964 with effect from 1-3-1965 which reads thus: --

Where the food inspector takes any action under Clause (a) of sub.s. (1), Sub-section (2), Sub-section (4) or sub.s. (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures.

9. The question for determination in Criminal Appeal Nos. 816/65 and 818/65 depends upon the interpretation of the provisions of this section prior to its amendment, whereas the other three appeals depend upon the construction of the section subsequent to its amendment.

10. The usage of words 'as far as possible', in Sub-section (7) to Section 10 of the Act prior to its amendment on 1st March 1965 postulates that the provisions are neither mandatory nor discretionary but directory. The Legislature intended the food inspectors to follow the procedure laid down under Section 10(7) in calling not less than two persons to be present at the time when the sample or seizure of food article was taken or made and obtaining their signatures. The Legislature intended the food inspector to follow the procedure prescribed therein wherever possible to get such witnesses for the seizure or taking of samples of food articles. In cases where it was not possible to obtain the mediators for witnessing the taking of or seizure of simples of food articles, the food inspector's failure or omission to comply with the provisions of Section 10(7) in spite of his efforts would not vitiate the entire sale or seizure of the food articles. In such cases, the evidence let in by the prosecution relating to the sale or seizure of food articles should be viewed with caution and the same should be proved beyond reasonable doubt. There may be cases, where the sale or seizure of the food article was admitted or not even denied by the accused and in such cases it cannot be said that merely because the food inspector has not followed the procedure laid down under Section 10(7) and failed to call two or more witnesses to be present at the time of the seizure or sale the entire proceedings are vitiated, entitling the accused to an acquittal. The proceedings would be vitiated only when mandatory piovisions of a statute are violated resulting in prejudice to the accused thereby.

11. The Legislature, by removing the words ''as far as possible' and insisting ''not less than one person to be present at the time of the sale or seizure' contemplates the amended provisions of the Act to be mandatory and the non-compliance of such provisions would certainly vitiate the entire proceedings. We shall now consider the case law on the subject.

12. In The Public Prosecutor, Andhra Pradesh v. Jampana Narasimharaju 1958 Andh L T 760, Basi Reddy J. observed that in every case where there is a non-compliance with the provisions of sub.s. (7) of Section 10 of the Prevention of Food Adulteration Act, 1954, the conviction would not be invalid and the defect was a curable irregularity.

13. In Public Prosecutor, Andhra Pradesh v. Viswanatham Chetty : AIR1960AP96 , Sanjesva Row Nayudu J. held that the provisions of Section 10(7) of the Act are mandatory but mere violation or failure to comply with the same would not, by itself, affect the legality or the validity of the act of the Food Inspector as the non-compliance with those provisions would be a curable irregularity and the trial would not be vitiated.

14. In The Public Prosecutor Andhra Pradesh v. Chitrala Yenkataswamy (1961) 2 Andh W R 90 : (1962) 1 Cri LJ 641, Basi Beddy J. held that the provisions of sub.s. (7) of Section 10 of the Act are only directory but not mandatory and their contravention would not have the effect of rendering the seizure illegal and the subsequent prosecution invalid and that the Food Inspector has no power to compel the witnesses to be present at the time of the seizure.

15. In : AIR1964AP25 , Munikanniah J. held that the employment of the word 'shall' in Section 10(7) of the Act makes it appear that the direction to call not less than two persons to be present was mandatory and where it is possible that witnesses could be secured, it is obligatory on the part of the Food Inspector to make them present. It is further observed that exceptional circumstances must be proved to the hilt for bringing a particular case within the proviso creating an exception by use of the words 'as far as possible'.

16. In an unreported decision in Criminal Appeal No. 37 of 1965, D/- 8.2-1965 (A.P.), Venkatesam J. observed that the statement of the Sanitary Inspector that he could not secure the services of mediators in spite of his attempt was given a lie by the evidence of the sanitary coolie to the effect that two customers came to the shop who were not requested by the Sanitary Inspector to act as mediators and in those circumstances, the evidence of the Food Inspector cannot be accepted by the Court and the order of acquittal passed by the Magistrate was correct.

17. In the Public Prosecutor v. Pasala Jogi : AIR1966AP96 Anantanarayana Ayyar J. held that the act of the Food Inspector in getting only one mediator instead of two as contemplated by the provisions of Section 10(7) of the Act does not mean that the sale and seizure cannot be acted upon for the purpose of finding the accused guilty. In that case, the fact that the accused, was in possession of the milk and that he sold it was admitted by him. The failure or omission to comply with the provisions of Section 10(7) was found to be an illegality or irregularity which would not result in vitiating the entire proceedings or trial against the accused except that the Court, in such circumstances, will have to examine the evidence regarding seizure carefully and no further consequence ensues.

18. In re Raju Konar : AIR1959Mad118 , Somasundaram, J. observed that the provisions of Section 10(7) of the Act are mandatory and should be complied with and when there were two or more persons available to be called as mediators in any given case and if the Food Inspector failed to comply with the provisions of Section 10(7) the provisions of Section 10(7) would be a dead letter on the statute book and non-compliance of the same will result in the acquittal of the offenders.

19. In Kapoor Chand v. City of Jabalpur Corporation : AIR1960MP179 , T. P. Naik, J. observed that Section 10(7) of the Act given a discretion to the Food Inspector to call at least two witnesses and it is only directory and not mandatory and the irregularity in not complying with it, would not vitiate the whole trial.

20. In State of Mysore v. Udipi Co. operative Milk Society Ltd. AIR 1960 MYS 80, a Division Beach of the Mysore High Court held that it was unnecessary for the prosecution to prove that the officers of the Milk Society knew that the milk offered for sale was adulterated, that the witnessess, who were called to witnees the sale or saizure of the milk, need not necessarily be examined at the trial and it is for the prosecution to choose to examine one or more of the those witnesses and the non-examination of the attestors may assume importance only, if the Court was unable to rely upon the evidence of the Food Inspector and that the contravention of the provisions of Section 10(7) of the Act, however trifling will not per se vitiate the prosecution, unless any prejudice to the accused has been caused thereby.

21. In City Corporation of Trivandrum v. P.N. Arunachalam Reddiar : AIR1960Ker356 , a Division Bench of the Kerala High Court has observed that non.compliance of the provisions of Section 10(7) of the Act is serious irregularity causing prejudice to the accused. In that case the mabazar prepared by the Food Inspector was attested by his peon and another witness who stated at the trial that he signed the mazahar without knowledge of its contents and it was found that the place of the seizure was a very busy locality and it was easy to get two independent witnesses to witness the purchase of oil by the Food Inspector and to attest in the mahazar. In those circumstances, the Kerala High Court, held that the accused was prejudiced by the conduct of the Officer and that they were entitled for an acquittal.

22. From the aforesaid discussion, the following principles emerge --

1. The use of words 'as far as possible' in Sub-section (7) to Section 10 of the Prevention of Food Adulteration Act 1954, applicable to cases prior to 1-3-65, would show that the procedure laid down in Section 10(7) of the Act is only directory but not mandatory.

2. The Food Inspectors should follow the procedure laid down under Section 10(7) of the Act as far as possible and in particular, when the witnesses to witness the sale of seizure and attest the panchanama are available.

3. The Food Inspectors have a statutory duty and obligation to call two independent witnesses and make a genuine effort for following the prescribed procedure. If, in spite of the genuine attempt on the (act of the Food Inspector, as disclosed from evidence, to follow the prescribed procedure, he failed to secure two witnesses either on account of the non-availability of any witnesses at that time and place of the sale or seizure or due to some other acceptable reasons, the evidence of the Food Inspector and the other material on record will have to be considered as sufficient proof of the seizure or sale of the food articles.

4. The failure or omission to comply with the provisions of Section 10(7) of the Act would not ipso facto vitiate the entire trial entitling the accused for an acquittal on that sole ground. The effect of the non-compliance of the provisions of Section 10(7) of the Act in cases where the accused either admits or does not deny the sale or seizure of the food article, would amount to nothing as the evidence of the Food Inspector, if acceptable otherwise, in such circumstances, would be sufficient proof of the sale or seizure.

5. In cases where the accused specifically denies the sale or seizure of the food article and pleads that his signature was taken by force or threat or coercion to the panchnama, the evidence of the Food Inspector and the other material on record would have to be scanned and carefully considered as in such circumstances, the Court would certainly require better proof of the facts of sale or seizure and the mere ipse dixit word of the Food Inspector that he was unable to secure the witnesses cannot be accepted.

6. The person or persons required to be called by the Food Inspector as per the provisions of Section 10(7) of the Act must be independent and disinterested mediators but not the food mistries, peons working under the Food Inspector or any subordinate of the department at whose instance the prosecution was launched, as the intention and object of the Legislature to call two or one, as the case may be, such persons to witness the sale or seizure and attest the panchnama was to remove any suspicion or foul play with a view to ensure that no prejudice or injustice would be caused by any overjealous officers against the accused.

7. It is incumbent on the part of the Food Inspectors to call only mediators who are independent and disinterested with a view to induce confidence in the fair trial as well as the method or manner in which the procedure has been adopted, and the practice or attempt by the Food Inspectors to call their mistries or peons or departmental subordinates should be deprecated though not as a rule of law but as a rule of prudence.

8. The provisions of Section 10(7) of the Act have been amended with effect from 1-3-1965, by Section 6 (3) of the Act 49 of 1964 by removing the words 'as far as possible' and substituting ''one or more persons' instead of 'not less than two persons' and there, by all controversy with regard to the character or the nature of the provisions, whether mandatory, directory or discretionary has been put an end to.

9. The effect of the amendments made in Section 10(7) of the Act would clearly disclose the intention of the Parliament to make it obligatory on the part of the Food Inspectors to call one or more independent mediators to be present at the time when action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4) or Sub-section (6) was taken and to take his or their signatures to the panchnama.

10. The amended provisions of Sub-section (7) to Section 10 of the Act subsequent to 1-3-1965, are mandatory but not discretionary and any omission or failure on the part of the Food Inspectors to strictly adhere to or comply with the procedure contemplated therein should be inferred to be prejudicial to the interests of the accused and thereby vitiate the entire trial entitling him to an acquittal of the offence for which he was charged except when the sale or action is not denied.

After considering the facts of each case the Judgment proceeded.

28. In the result, on a consideration of the facts of each, all the appeals preferred by the State are dismissed.