Rameshwar Vs. State of Raj. Through Municipal Council - Court Judgment

Excerpt:
prevention of food adulteration act, 1954 - sections 11(3) and 13(2) and prevention of food adulteration rules, 1955--rule 17--delay in examining sample by public analyst--no time limit fixed--held, breach of expectation does not vitiate trial and (ii) report of public analyst got superseded by certificate of director under section 13(2).;public analyst had not exhibited that promptness in examining the sample of the food stuff which was expected of him in view of the nature of offence involved.;the mere breach of an expectation from or of even a statutory duty by the public analyst would not vitiate the trial of an accused unless such breach is shown to have caused prejudice to him. in the instant case i find that the report of the public analyst got superseded under section 13(3) by the.....orderm.a.a. khan, j.1. in this case petitioner was alleged to have sold 1500 gms. 'jalebi' to p.w. 1, sushil kumar. food inspector, on 14-10-1983 at his shop as village seemalya. distt. kota. the 'jalebis' were represented to have been prepared in 'vanaspati'. on the analysis of one of the three parts of the sample jalebi, the public analyst reported the same to be adulterated under section 2(i-a) (j) and misbranded under section 2(ix) (c) of the prevention of food adulteration act, 1954 (the act). on a complaint having been filed by the food inspector before him the learned addl. chief judicial magistrate, no. 2 kota found the petitioner guilty of the offence under section 7/16 of the act convicted him as such and sentenced him to six months r.i. and rs. 1,000/- as fine. in appeal the.....

Judgment:
ORDER

M.A.A. Khan, J.

1. In this case petitioner was alleged to have sold 1500 gms. 'Jalebi' to P.W. 1, Sushil Kumar. Food Inspector, on 14-10-1983 at his shop as village Seemalya. Distt. Kota. The 'Jalebis' were represented to have been prepared in 'vanaspati'. On the analysis of one of the three parts of the sample Jalebi, the Public Analyst reported the same to be adulterated under Section 2(i-a) (j) and misbranded under Section 2(ix) (c) of the Prevention of Food Adulteration Act, 1954 (the Act). On a complaint having been filed by the Food Inspector before him the learned Addl. Chief Judicial Magistrate, No. 2 Kota found the petitioner guilty of the offence under Section 7/16 of the Act convicted him as such and sentenced him to six months R.I. and Rs. 1,000/- as fine. In appeal the learned Sessions Judge confirmed the conviction and sentence of the petitioner. Hence this petition under Section 397, Cr.P.C.

2. Mr. Sunil Tyagi, the learned counsel for the petitioner urged that the delayed examination of the. sample by the Public Analyst and delayed filing of the complaint in Court by the Food Inspector vitiated the trial and therefore, the petitioner should be acquitted. I find no force in this argument.

3. The sample was taken on 14-10-1983 and was received by the Public analyst on 17-10-1983. The Public Analyst, prepared the report on 28-11-1983 and despatched the same to the Local (Health) Authority on the same day. The Local (Health) Authority accorded his written consent on 21-2-1984 to the Food Inspector to initiate prosecution of the petitioner and the complaint was filed on 22-2-1984.

4. The facts mentioned above though speak that the Public Analyst had not exhibited that promptness in examining the sample of the food stuff which was expected of him in view of the nature of offence involved. Yet for that reason the entire case of the prosecution could not have been thrown away. Sub-section (3) of Section 11 read with Rule 17 of the Prevention of Food Adulteration Rules 1955 (the Rules) no doubt casts a duty upon the Food Inspector to send one part of the samples, in sealed packet, to the Public Analyst to analyse the sample. The reason behind not fixing any time limit for examination of the sample by the Public Analyst may be that the Public Analyst, being a scientific expert and visualising the value and importance of his opinion in the matter, would act promptly and analyse the sample as early as possible Law has reposed a confidence in him to assist the Court in the mater of bringing the offenders of the socio-economic evil of food adulteration to book with his scientific knowledge of the subject. Such a reposition of the trust being there in him the Public Analyst is expected to examine the samples as early as possible. But the mere breach of an expectation from or of even a statutory duty by the Public Analyst would not vitiate the trial of an accused unless such breach is shown to have caused prejudice to him. In the instant case I find that the report of the Public Analyst got superseded under Section 13(3) by the certificate of the Director Central Food Laboratory, Ghaziabad which was obtained as a result of exercise of his right under Section 13(2) by the petitioner. This part of Mr. Tyagi's arguments thus carries no weight and is dismissed.

5. In view of the provisions of Section 20 of the Act the Food Inspector could not have filed the complaint without the written consent of the specified authority. Such written consent, as stated earlier was accorded on 21-2-1984 and the complaint was filed on 22-2-1984. There was thus no delay in filing the complaint. This argument too is rejected.

6. In the same continuation Mr. Tyagi further urged that the prescribed authority did not apply his mind to the facts of the case before giving 'sanction' to the prosecution of the petitioner. I find no reasonable grounds to accept this contention. There is no material on record to show that the Authority giving his written consent in this case had not applied his mind. The requisite evidence, circumstance or material to rebut the presumption that official acts may be presumed to have been done according to rules in missing in this case. This part of Mr. Tyagi's argument is rejected.

7. Apart from the above 20 of the Act speaks of the persons who can file a complaint for the offences under the Act and a person who is conferred upon such an authority may also file such a complaint. Since the conferment of the authority may be made either by general or special order even before the commission of the offence in a case no question of application of mind to the facts of the case would arise. (See Dhian Singh v. Municipal Board, Saharanpur, 1973 FAC 404 : (1970 Cri LJ 492) (SC). Viewed from that angle also the prosecution of the petitioner was maintainable.

8. It was next urged by Mr. Tyagi that since neither the Act nor the Rules made thereunder prescribe any standard for the purity of 'Jalebi', the petitioner could not have been punished under Section 16(1). The argument is totally misconceived.

9. It was not disputed before me that 'Jalebi' is an article of food within the meaning of the term defined in Section 2(v). If an article of food sold by a vendor is not of the nature, substance or quality which is demanded by the customer or of which it purports to be or is represented, it shall be deemed 'adulterated' within the meaning of the term defined in Section 2(1-a). The 'Jalebia' sold by the petitioner to the Food Inspector were represented to have been prepared in 'vanaspati' but they were found by the Director, Central Food Laboratory not to have been prepared in 'vanaspati'. The representation made by the petitioner and as is mentioned in the relevant memos was false. It means that the 'Jalebis' were not of that nature, substance or quality which they were purported and represented to be. It was adulteration within the meaning of the terms in Section 2(1-a). Again, the Director had reported that the sample showed presence of two non-permitted coal tar colourmetanil yellow and orange-II in addition to the permitted one. This position of the 'Jalebi' attracted the definition of 'adulterated' given in Section 2(1-g) of the Act. Thus in any case the, 'Jalebis' sold by the petitioner were adulterated and his act was punishable under Section 16 of the Act.

10. Mr. Tyagi next urged that the trial stood vitiated for not putting the certificate of the Director, Central Food Laboratory to the petitioner in his examination recorded under Section 313, Cr.P.C.

11. it is true that the certificate of the Director as such was not put to the petitioner in the course of his examination under Section 313, Cr.P.C. but that fact itself does not vitiate the trial. No doubt, every circumstance which is to be read in evidence against an accused is required to be put to him in his examination under Section 313, Cr. P.C. in order to give him an opportunity to explain the same. But if the accused is well aware of that circumstance the mere act of not putting that circumstance to him in 'his examination under Section 313, Cr.P.C. would amount to an irregularity and if such irregularity has occasioned in no failure of justice the trial would not get vitiated. Prejudice caused to the accused must be shown in order to accept the contention against the validity of the trial held. In the instant case the certificate of the Director was called on petitioner's own request under Section 13(2). The certificate was received-and examined on 14-6-1984 and on that day the learned Magistrate thought it fit to call further opinion of the expert on the point of 'Misbranding' and adulteration's effects on health. The Director reported that the adulteration due to the presence of non permitted colour made the food stuff injurious to health. This fact was disclosed to the petitioner and his counsel on 30-7-1984 and procedure of warrant case was ordered to be followed in the trial of the petitioner. It is thus clear that the petitioner was well aware of the expert evidence, contained in Director's certificate, at the very beginning of his trial and therefore, no prejudice in his defence was caused to him by not specifically putting the certificate of the Director to him under Section 313, Cr.P.C. The objection is overruled.

12. In the end Mr. Tyagi prayed for release of the petitioner either on probation or after making some increase in the amount of fine imposed upon him. In my opinion the mandatory provisions of Section 16(1) clearly say that the seller of an adulterated food article injurious to human health should, in no case, get sentence less than six months Imprisonment and Rs. 1,000/ - fine, which has rightly been imposed by the Courts below in this case. When the statute specifically provides for imposition of minimum sentence for an offence, the Courts must impose the minimum sentence for that offence (see State of Andhra Pradesh v. Rangadamappa, AIR 1982 SC 1492 : (1982 Cri LJ 2364). The gravity of the offence committed by the petitioner against the consumers of 'Jalebi' cannot be overlooked. The petitioner has been given his due and he should accept it.

13. In the result 1 find no force in this petition and dismiss it as such.