IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 Crl.Rev.Pet.No. 843 of 2001() ----------------------------- CRA.51/1997 of ADDL.SESSIONS COURT, PARAVUR CC.1165/1993 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): ---------------------------------- P.A. ANIL, S/O. P.A. ABDUL MAJEED, PUTHENPEEDIKAYIL HOUSE, A.M. ROAD, PERUMBAVOOR. BY ADV. SRI.SANTHOSH SUBRAMANIAN SRI.SHEJI P.ABRAHAM RESPONDENT(S): ----------------------------- 1. FOOD INSPECTOR, MOBILE VIGILANCE SQUAD, KAKKANADU, ERNAKULAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P. RAVEENDRA BABU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/6/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.3892 OF 2001 IN CRL.R.P.NO.843 OF 2001: CLOSED 23/6/2009 SD/- R. BASANT, JUDGE. //TRUE COPY// R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 843 of 2001 ------------------------------------------------- Dated this the 23rd day of June, 2009 ORDER The verdict of guilty, conviction and sentence in a prosecution under Sec.16 of the Prevention of Food Adulteration Act, 1954 (for short `the Act') is assailed in this revision petition by the accused. 2. The crux of the allegations against the petitioner herein is that he had sold to the Food Inspector for analysis adulterated curd when the Food Inspector inspected the premises of a non-vegetarian tea shop in which the second accused - the mother of the petitioner, was the alleged licensee. The 2nd accused has been found not guilty and acquitted. 3. The prosecution examined P.Ws.1 and 2 and proved Crl.R.P. No.843 of 2001 -: 2 :- Exts.P1to P13. The accused did not adduce any defence evidence. 4. The courts below concurrently found that the prosecution has succeeded in establishing all the ingredients of the offence alleged against the petitioner. Accordingly, they proceeded to pass the impugned concurrent judgments. 5. The learned counsel for the petitioner and the learned Public Prosecutor have advanced their arguments. The learned counsel for the petitioner assails the impugned judgments on various grounds. 6. First of all it is contended that the premises from where the sample was drawn is a non-vegetarian tea shop and the sample of curd allegedly purchased from the premises was not kept or offered for sale as curd. I find no merit in this contention. On facts the conclusion appears to be inevitable that curd was offered for sale as curd. In different cups the curd were kept for sale. The Food Inspector found that the same was kept for sale as curd. The plea that it is improbable that curd would be served as such in a non-vegetarian restaurant is not reasonable at all. Even assuming that the sample was not kept for sale as curd the contention does not appear to be acceptable in law. Crl.R.P. No.843 of 2001 -: 3 :- 7. The relevant statutory stipulations appear in Sec.10(2) of the PFA Act while dealing with the powers of the Food Inspector to draw sample. I extract Sec.10(2) of the PFA Act below: “10. Powers of Food Inspectors.--- x x x x x x x (2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food adulterant for analysis. Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food.” The body of Sec.10(2) of the PFA Act permits the Food Inspector to draw samples of all articles of food even when they are not kept for sale as such and are kept there for the purpose of manufacture of food for subsequent sale. The law recognises only one exception. If such article is an article of primary food, Crl.R.P. No.843 of 2001 -: 4 :- the Food Inspector is proscribed from taking the sample of primary food unless the same is intended for sale as such food. In the instant case, the case of the prosecution is very clear. Curd was kept in the premises for sale as curd. Even assuming that the curd was not kept for sale as curd, the proviso to Sec.10 (2) has no application and the course adopted by the Food Inspector of drawing sample of curd must be held to be absolutely justified. 8. The learned counsel for the petitioner contends that it is not the case of the petitioner that what is taken as sample was curd. Though he did not specify what the article was, the learned counsel contends that what was taken as sample was an article which was kept there for the purpose of preparation of salad etc., and the Food Inspector erred grossly in reckoning the sample as a sample of curd prepared from cow's milk. 9. I find no merit in this contention. Form VI notice issued to the petitioner marked as Ext.P2 as also the voucher for the price of the article issued to the petitioner by the Food Inspector Ext.P3 do both clearly show that what was purchased was curd. In these circumstances, the laborious contention urged that what was sampled/purchased was not curd and the description of the article as curd by the Food Inspector is not justified must Crl.R.P. No.843 of 2001 -: 5 :- fall to the ground. 10. Thirdly, a contention is raised that the petitioner was not present in the hotel when the sample was drawn. According to him, late on that evening the petitioner was asked to go over to the office of P.W.1 – the Food Inspector, and there the signatures of the petitioner were obtained in the relevant documents. On the fact of this, the contention is uninspiring as there is no semblance of even a suggestion as to why the Food Inspector should make such totally false allegations against the petitioner herein. It is significant to note that during cross- examination of the Food Inspector, no suggestion has even made against him as to why he should resort to such tactics of falsely implicating the petitioner herein. 11. It is contended fourthly that there has been infraction of the stipulations of Sec.10(7) of the PFA Act. A witness was admittedly called by the Food Inspector as a witness and Ext.P4 mahazar prepared by the Food Inspector bears the signature of that person. It is the case of the petitioner that such person is an employee of the shop. So much is admitted by the petitioner. According to the Food Inspector, he was present in the shop. It is hence not a case where Sec.10(7) of the PFA Act has not been complied with. I extract below Sec.10(7) of the PFA Act: Crl.R.P. No.843 of 2001 -: 6 :- “10. Powers of Food Inspectors.--- x x x x x x x (7) Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub- section (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.” 12. The obligation is only to call one or more persons to be present at the time when the action is taken by the Food Inspector and take his signature. In the instant case, a person who is claimed to be an employee of the very shop has been called as a witness and he has attested the mahazar as a witness. It is the case of the petitioner that he is the employee of the shop. There is no scintilla of material to show that the said witness one Gopalakrishnan Nair also has any animus against the petitioner or there is any collusion between the said Gopalakrishnan Nair and the Food Inspector/P.W.1. 13. The learned counsel contends that even if there be no infraction of the provisions of Sec.10(7) of the PFA Act, it may be noted that the said Gopalakrishnan Nair has not been cited as a witness even in the complaint. This, counsel contends, is Crl.R.P. No.843 of 2001 -: 7 :- suspicious. According to the petitioner, the petitioner was not present at the scene when the sample was drawn. Such sample was drawn when Gopalakrishnan Nair was available in the counter of the shop, he being an employee. Here again, it is crucial to note that there is no semblance of a suggestion that P.W.1 has succumbed to the influence of the said Goapalrishnan Nair and has falsely implicated the petitioner for any reason. The convenient version advanced that the petitioner was obliged to subscribe his signatures to all the documents long later in the evening when he was called to the office of the Food Inspector. to say the least, has no legs to stand on. 14. The learned counsel contends that under the relevant Rules the Food Inspector is bound to forward the articles to the Local (Health) Authority immediately. But in the instant case, though the sampling commenced at about 11.30 a.m. only, the samples have been handed over to the Local (Health) Authority only on the next day. The learned counsel contends that this must also arouse suspicion in the mind of the court against the version of P.W.1 in the absence of any evidence to corroborate such version. 15. I must say that there is not an iota of reasonable doubt aroused in my mind against the acceptability of the oral evidence Crl.R.P. No.843 of 2001 -: 8 :- of P.W.1 which is eminently supported by all the contemporaneous documents that have been prepared at the time of the seizure. The mere fact that the Food Inspector could not on the same day hand over the article to the Local (Health) Authority and despatched the same to the Public Analyst is, according to me, too insufficient an indication to doubt the version and veracity of the evidence of P.W.1. It is conceded that there is literal compliance with the rule which mandates that the sample must be forwarded to the LHA/PA expeditiously – not later than the next day. 16. The learned counsel for the petitioner fifthly contends that the Food Inspector must have made enquiries before he drew sample of the article in question. According to the learned counsel, it must have been enquired whether that sample was offered for sale as such or whether it was kept there for preparation of any other article of food. I have already adverted to this while considering the plea raised on the basis of Sec. 10(2) of the PFA Act. Whether the article was intended for sale as such food or not, the sample of a non-primary food can be drawn by the Food Inspector under Sec.10(2). In these circumstances, the contention that the Food Inspector must have embarked on a detailed enquiry as to whether the article (curd) Crl.R.P. No.843 of 2001 -: 9 :- was intended for sale as curd or was kept only for preparation of article of food for sale subsequently is of no relevance at all. In fact the evidence of P.W.1 and the contemporaneous documents prepared by him show that he was satisfied that the sample of curd taken was offered for sale as curd in different cups to be served to the customers. 17. The learned counsel for the petitioner sixthly contends that Rules 14, 17 and 18 of the Prevention of Food Adulteration Rules, 1955 have been violated. 18. I shall first deal with the alleged violation of Rule 14. The samples are to be taken in clear and dry bottles or jars or other suitable containers. It is by now trite that this obligation to take samples in clean and dry bottles will include the obligation to use clean and dry containers and spoons before the sample is transferred to the sample bottles. We have the evidence of the Food Inspector who asserted that the sample was initially taken in a clean and dry vessel before it was mixed up and transferred to the three sample bottles. The learned counsel argues that a Peon who had so made the vessel clean and dry has not been examined. The Food Inspector/P.W.1 has stated clearly that the container was not made clean and dry at the scene and it was brought in a clean and dry condition by him. In these Crl.R.P. No.843 of 2001 -: 10 :- circumstances, the plea of alleged infraction of Rule 14 of the PFA Rules does not at all carry conviction. The challenge on that ground must fail. 19. The learned counsel contends that Rules 17 and 18 have been violated. What is the alleged violation? The Food Inspector had stated that the sample bottles were forwarded along with the copies of Form VII memorandum. He further stated that the specimen impression were forwarded separately. The Food Inspector’s specific evidence on this aspect – he proved a copy of Form VII memorandum also, in his oral evidence remains virtually unchallenged. Both the Public Analyst and the Director of the Central Food Laboratory in Exts.P11 and P12 admitted the receipt of the sample as also the receipt of the specimen impression of the seal separately. The contention of the learned counsel is that the report of the Public Analyst and the Director of the Central Food Laboratory do not show that the samples were received along with the requisition in Form VII memorandum. Inasmuch as the Food Inspector had tendered specific unchallenged evidence that the samples were sent along with Form VII memorandum to the Public Analyst, I find no merit in this contention built on the premise that Exts.P11 and P12 do not show that the requisition was received in Form VII Crl.R.P. No.843 of 2001 -: 11 :- memorandum. That contention must also hence fail. 20. The learned counsel seventhly contends that the certificates – Exts.P11 and P12 do not show adequate data. To be specific, the contention is that the nature of the tests conducted have not been specified in such certificates/reports. The method of analysis resorted to to ascertain the data furnished is not given in Exts.P11 and P12. This, he contends, is grievous in the light of the subsequent amendment to Secs.4 and 23(1-A)(hh). I find no merit in this contention at all. The law is trite that the certificates/reports of the Public Analyst and the Director of the Central Food Laboratory must give the relevant data and not merely their conclusion. In the instant case, all relevant parameters are furnished, though the scientific tests/analysis employing which the data was ascertained are not furnished in Exts.P11 and P12. This, according to me, cannot in any way affect the validity and acceptability of such scientific report. It is crucial to note that the Public Analyst/the Director of the Central Food Laboratory were not called to the witness stand invoking the option available to the petitioner under Sec.13 of the PFA Act. No other contentions are raised. I am, in these circumstances, satisfied that the verdict of guilty and conviction do not warrant any interference. Crl.R.P. No.843 of 2001 -: 12 :- 21. The sentence imposed is the minimum permissible under law and the same does not also warrant any interference. 22. In the result: (a) This revision petition is dismissed. (b) The petitioner shall have time till 31/7/09 to appear before the learned Magistrate to undergo the impugned sentence. He shall appear and his sureties shall produce him before court on that date. Till then, the impugned sentence shall not be executed. (R. BASANT, JUDGE) Nan/ Crl.R.P. No.843 of 2001 -: 13 :- Crl.R.P. No.843 of 2001 -: 14 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 843 of 2001 ------------------------------------------------- Dated this the 23rd day of June, 2009 ORDER