IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 793 of 2001() ----------------------------- CRA.55/1996 of ADDL.SESSIONS COURT, N.PARAVUR CC.1082/1993 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- K.K.THOMAS, POONELY HOUSE, PULLUVAZHY.P.O., PERUMBAVOOR BY ADV. SRI.SANTHOSH SUBRAMANIAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. FOOD INSPECTOR, ANGAMALY CIRCLE, ANGAMALY. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.793 OF 2001 --------------------------------------------- Dated 22nd June, 2010 O R D E R Petitioner was convicted and sentenced for the offence under Section 2 (ia)(a)(b)(c) and (m) and Section 7(1) read with Section 16(1)(a)(i) of P.F.A.Act and Section 7(iii) and (v) read with Section 16 (1)(a)(ii) of P.F.A.Act and Rule 50 of P.F.A Rules. Petitioner challenged the conviction and sentence before Additional Sessions court, North Paravur in Crl.A.55/1996. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Prosecution case is that PW3 Crrp 793/01 2 Food Inspector after disclosing his identity and intention to purchase coriander whole for analysis, paying the price of Rs.6.75/- purchased 450 gm of coriander powder from the shop of the petitioner. As provided under the Rules he prepared three samples and sealed them. One sample was sent to the public analyst and the remaining two samples were produced before the Local Health Authority. On analysis of the sample, Public analyst furnished Ext.P16 report. On filing the complaint copy of Ext.P16 report was served on the petitioner. He exercised the rights provided under Section 13(2) of P.F.A.Act and sent one of the remaining samples to the Central Food Laboratory and obtained Ext.P17 report. Prosecution was lodged based on Ext.P16 report, though it was subsequently superseded by Ext.P17 report. As the report Crrp 793/01 3 shows that sample of coriander whole examined at the laboratory is adulterated, as it contained inorganic extraneous matter above the prescribed limit as per the standard fixed in the Appendix. Petitioner pleaded not guilty. Prosecution examined four witnesses and marked Exts.P1 to P17. Public Analyst was also examined as a court witness overlooking the fact that his report was superseded. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found that as proved by Ext.P17 report of Central Food Laboratory, coriander whole purchased by PW3 from the shop of the petitioner was adulterated. He was therefore convicted for the offence under Section 16(1)(a)(i) read with Section 7(1) and 2(ia)(a)(b)(c) and (m) of P.F.A.Act. Finding that petitioner was not having any license under the P.F.A.Act to conduct sale of food Crrp 793/01 4 article, he was also convicted for the offence under Section 7(iii) and (v) read with Section 16(1)(a)(ii) of P.F.A.Act and Rule 50 of P.F.A.Rules. 3. Revision petitioner would contend that learned Magistrate and learned Sessions Judge did not properly consider the relevant facts and evidence. It was argued that evidence of PW3 does not establish that he had called neighbouring shop owners or any particular individual to be present at the time when the sample was taken and the only witness who attested Ext.P9 mahazar was PW4 the peon of PW3 and there is clear violation of Section 10(7) of P.F.A.Act and therefore, the conviction is bad. Learned counsel would argue that evidence of PW3 does not show that samples were taken in dry and clean bottles and when Ext.P16 report of public analyst shows that percentage of Crrp 793/01 5 inorganic extraneous matter was 4.7, in Ext.P17 it is only 2.75% and the difference could only be for the reason that no homogeneous representative sample was taken. Learned counsel would argue that when sample was taken there was no proper mixing and extraneous matter due to gravitational force remains at the bottom and consequent to the faulty sampling extraneous matters were present only in one of the samples and based on that, it cannot be said that coriander whole which was being sold in the shop is adulterated, as the percentage of inorganic extraneous matter would be within the permissible limit in the remaining samples. It is argued that on the failure of PW3 to establish that sufficient steps were taken to take a homogeneous representative sample and that too on the failure to prove that bottle in which samples Crrp 793/01 6 were taken were clean and dry, based on the excess percentage of 0.75% of inorganic extraneous matter, conviction is not sustainable. Learned counsel would argue that in any case, sentence awarded is excessive. It was submitted that the sentence awarded for failure to take license under the P.F.A Rules is illegal as the learned Magistrate has awarded sentence, in excess of the sentence provided and that was illegally confirmed by the learned Sessions Judge and therefore, the sentence also warrants modification, if at all conviction is to be sustained. 4. Learned Public Prosecutor submitted that Ext.P9 mahazar, the contemporaneous record prepared at the time of preparing the samples establishes that Food Inspector had sought presence of independent witnesses and none of Crrp 793/01 7 them were prepared to furnish their names or attest the mahazar as witnesses to the mahazar and it was in such circumstances, the mahazar was attested only by the peon and there is no violation of the provisions of Section 10(7) of the Act. Learned Public Prosecutor also argued that sample was taken by PW3, in his capacity as Food Inspector and PW3 need not elaborately depose details of each step, taken by him for preparing the sample and when questioned fact that the bottles in which samples were taken were clean and dry was not challenged, especially when Ext.P9 mahazar shows that it is so and therefore, petitioner is not entitled to contend that no proper sample was taken. Learned Public Prosecutor also pointed out that evidence of PW3 shows that sample was taken after proper mixing and it is proved that homogeneous representative sample was taken. It Crrp 793/01 8 was argued that relying on Ext.P16 which was superseded by Ext.P17, petitioner is not entitled to contend that no homogeneous sample was taken. Learned Public Prosecutor then argued that in such circumstances, there is no illegality in the conviction. 5. Ext.P9 mahazar prepared by PW3 shows that PW3 had requested the witnesses who were present at the scene to furnish their names as well as their address and to sign in Ext.P9 mahazar. But none of them was prepared either to give their name, address or to attest Ext.P9. In such circumstances, it was got attested by the peon, who was examined as PW4. Learned counsel relying on the Division Bench decision of this court in City Corporation of Trivandrum v. V.P.N.Arunachalam Reddiar and another (1960 KLT 515) argued that when there is no evidence to prove that sample was taken Crrp 793/01 9 in the presence of independent witnesses and Ext.P9 shows that it was attested only by PW4 the Peon of PW3, there is clear violation of Section 10(7) of P.F.A.Act and therefore, it is fatal to the prosecution case. 6. Section 10(7) of P.F.A.Act provides that 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 their signatures. Division Bench of this court considered the effect of non compliance of the provisions of Section 10(7) as well as the necessity to have the presence of independent witness in Food Inspector v. Narayanan (2003 (2) KLT 1035). After analysing the earlier decisions of this court as well as Apex court, Division Bench has answered the question as Crrp 793/01 10 follows: “1) S.10(7) is enacted as a safeguard against any possible allegation of excesses, irregularity or unfairness on the part of the Food Inspector. This being the object, it is in the interest of the prosecuting authority to comply with provisions of S.10(7). Statute cast a duty on the Food Inspector to call witness. 2) The object of calling persons to witness action is to assure fairness in the action, the persons called must be independent and not suspectable to the influence of the Food Inspector. 3) The obligation which S.10(7) casts on the Food Inspector is only to “call” one or Crrp 793/01 11 more persons to be present when he takes action. In the case where the Food Inspector did call persons to witness the taking of sample and none was willing to co-operate, the prosecution is relieved of its obligation to cite independent witnesses. He has no means to enforce the presence of persons called to witness the action. 4) An employee of the shop from where sample is taken can be called as a witness under S.10(7) and it cannot be stated without any further evidence that he is influenced by the Food Inspector or he is not an independent witness as far as Food Inspector is concerned. There is no hard and fast rule as to what Crrp 793/01 12 classes of persons will be independent. It is at the same time too much to assume that because the Food Inspector can take action under the Act against persons dealing with articles of food all persons connected with the trade in articles of food or an employee of the shop would be dependent upon the Food Inspector. 5) S.10(7) of the Act is not mandatory in the sense that non-compliance of the same by itself will not vitiate the proceedings in all cases. If from the totality of the evidence regularity of the action in taking sample from a particular shop by the Food Inspector is proved, proceedings can be sustained even if S.10(7) is not complied with S.10(7) Crrp 793/01 13 is directory and it puts an obligation on the Food Inspector to comply with the directives in the Section. If it is not complied with, the burden will be very heavy on the prosecution to prove the regularity of the action of the Food Inspector in taking sample.” Apex court in Sri Ram Labhaya v. Municipal Corporation of Delhi and another (1974 (4) SCC 491) on Section 10(7) of the Act held: “We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the sub Section, the Food Inspector must call one or more independent persons to be present at the time Crrp 793/01 14 when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses.” In view of the Division Bench decision it can Crrp 793/01 15 only be held that the Food Inspector is obliged to call for independent witnesses at the time of sampling and if independent witnesses is not prepared to disclose their names and address and also not prepared to be witnessed to the mahazar, it cannot be said that there is violation of the Rules. 7. Learned counsel argued that in Ext.P9 details of the persons to whom PW3 made the request is not disclosed and in cross examination though PW3 deposed that the persons were aged between 10 and 30, specific details were not mentioned and therefore, evidence of PW3 cannot be believed. Ext.P9 shows that witness present were not prepared to disclose their names or address. If that be so, failure of PW3 to give the names is not a ground to disbelieve his version that persons present there did not disclose their names and were not Crrp 793/01 16 prepared to be the witnesses. In such circumstances, I cannot agree with the submission of the learned counsel that for violation of Section 10(7), conviction is bad. 8. Learned counsel would then argue that there is violation of rule 14 as PW3 did not depose that the sample was taken in clean and dry bottles. True, PW3 did not specifically depose that bottles in which samples were taken were clean and dry. But in Ext.P9 mahazar, which is the contemporaneous record, it has been specifically stated that sample was taken in clean and dry bottle. Question is whether failure of PW3 to specifically depose this fact is a ground to hold that there is violation of Rule 14 or to hold that sample was not properly taken. Learned counsel relied on the decision of the Apex court in Haripada Das v. State of W.B and Anr. (1999 FAJ 29) and that Crrp 793/01 17 of a learned Single Judge of this court in Koyakutty v. Food Inspector (2000 (2) KLJ 428). Facts of Haripada Das's case (supra) shows that trial court entered a factual finding that the samples were not drawn in a clean container. It was based on the contradictions of the depositions of four witnesses examined by the prosecution. High Court on re-appreciation of the evidence confirmed that finding but held that the accused being the seller should have protested if the container in which the samples were drawn were not clean and ignored the contradictions in the depositions about the nature of bottles in which samples were drawn. Their Lordships of the Supreme Court held that if there are contradictions in the depositions of the witnesses for which there was a reason for the trial court to entertain doubt about proper drawing of the samples and such view Crrp 793/01 18 cannot be held to be perverse or inconsistent with the depositions, benefit of doubt should go to the accused and there was no good reason for the High Court to interfere with the order of acquittal by ignoring the contradictions in the depositions and proceeding on the footing that the accused being the seller was expected to protest against the irregularities in drawing the samples. Consequently, conviction was set aside. Facts would indicate that there were contradictory depositions of prosecution witnesses which persuaded the trial court to enter a finding that sample was not taken in a clean container. High Court did not reverse the finding that the container in which sample was taken was not clean. Instead the conclusion of the trial court was reversed for the reason that it is for the seller to Crrp 793/01 19 protest and he did not protest. Facts are entirely different in this case. 9. This court in Koyakutty's case (supra) found that Food Inspector used an intermediary vessel for the purpose of purchasing sample of coconut oil and there is no evidence to show that the intermediary vessel was made clean and dry as required under Rule 14 and therefore, held that there is violation of Rule 14. A Division Bench of this court in Food Inspector v. Karingarappully Co-Op.M.S.Society Ltd. (1986 KLT 174) had occasion to consider the failure of the Food Inspector to depose the details of compliance of the rules as in this case in the light of the earlier decisions. As in this case there was no oral evidence that all necessary steps have been taken by the Food Inspector. The case was that Food Inspector did not depose the Crrp 793/01 20 steps he had taken in the processing of sampling. The following observations of the learned Single Judge in Food Inspector v. The Pirayiri Co-op. Mills Society Ltd. (1983 KLJ 579) was quoted: “Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. But where he gives evidence only in a general way indicating the steps taken by him, but without specifically referring to the details, that cannot straight away lead to acquittal of the accused. His evidence may be corroborated by the mahazar and the other evidence and supported by the contents of the report of the Public Analyst unless the Crrp 793/01 21 same is challenged in cross examination or in some other way known to law. Where the accused refrains from cross examining the Food Inspector in regard to these details and fails to suggest either non- compliance with any particular detail of a rule or prejudice having been suffered by the accused, he certainly runs a risk. In the absence of any inhibiting factor it is open to the court to presume that the official act has been regularly performed where it is shown that the official act has been regularly performed.” These observations which were followed in Food Inspector v. Hameed (1983 KLT 901), Food Inspector v. Abdulla Haji (1985 KLT 781), Food Inspector v. Usman (1985 KLT 1038 and Food Inspector v. Sathish Kumar (1985 KLT 1093) were Crrp 793/01 22 approved by the Division Bench and it was held that act of sampling is an official act and when it is proved that the act has been performed, the court is entitled to presume that it has been performed regularly by virtue of Section 114 of Evidence Act and illustration (e) thereto, in the absence of any evidence or circumstances casting any doubt about the regularity of the act. As declared by the Apex court in State of U.P. v.Haniff (1992 Crl.L.J 1429), PW3 inspected the shop and purchased coriander whole and prepared the sample in his capacity as the Food Inspector. He was only discharging his official duty. Considering this aspect, the Honourable Supreme Court in Hanif's case (supra) held: “He discharges the public function in purchasing an article of Crrp 793/01 23 food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public duty. His evidence is to be tested on its own merits and if found acceptable the court would be entitled to accept and rely on to prove prosecution case.” When PW3 had purchased coriander whole and prepared the sample in his capacity as Food Inspector and he was discharging his duty as the Food Inspector, presumption is necessarily to be drawn that he has drawn the samples in accordance with law, unless there are material to show otherwise. Though Learned counsel argued that evidence does not establish that Crrp 793/01 24 bottles were clean and dry, when Ext.P9 the contemporaneous record establish that bottles in which sample was taken were clean and dry, I cannot agree with the submission, for the failure of PW3 to specifically depose that the bottles were clean and dry or that he is prepared the sample in accordance with the rules. 11. Learned counsel would argue that in any case if homogeneous sample was taken, there would not have been vast difference in the percentage of inorganic extraneous matter as, we see in Exts.P16 and P17 reports. Argument is that when Ext.P16 shows percentage of inorganic extraneous matter as 4.7, Ext.P17 shows that it is only 2.75 and this much difference could only be for the reason that no homogeneous representative sample was prepared. The argument is that being Crrp 793/01 25 coriander whole, due to gravitational force inorganic extraneous matter would always be found at the bottom and when the sample was taken, the first two sample may not contain inorganic extraneous matter and as the report of Central Food Laboratory shows percentage of inorganic extraneous matter was only 0.75% in excess of the permissible limit and therefore, coriander whole was not adulterated. Evidence of PW3 shows that after purchasing 450 gms of coriander whole, he had mixed them properly and prepared three equal samples. According to PW3 he divided the coriander whole so mixed into three parts and taken each part in one of the bottles. Argument of the learned counsel could have been accepted, if evidence of PW3 is that he mixed the coriander whole purchased and thereafter filled the first bottle and prepared that sample and thereafter filled the Crrp 793/01 26 second bottle and prepared the second sample and the balance was filled in the third bottle. In that case due to gravitational force, presence of the inorganic extraneous matter would be more in the third sample. But evidence of PW3 does not show that sample was prepared in that way. In cross examination also it was not suggested to PW3 that he prepared the samples one by one and as a result third sample contained more percentage of inorganic extraneous matter. Therefore, I cannot agree with the submission of the learned counsel that samples were not homogeneous representative of the coriander whole purchased by PW3. Learned counsel would argue that otherwise there would not have been such a vast difference in the percentage of inorganic extraneous matter. As provided under Sub Section 3 of Section 13, the certificate issued Crrp 793/01 27 by the Director of Central Food Laboratory shall supersede the report given by the Public Analyst. The word supersede means “to take the place of by reason of superior right, to make useless by superior power, to replace, to set aside etc. Hence when Ext.P16 is replaced or substituted by Ext.P17, Ext.P16 cannot be used in evidence and if so court cannot look into Ext.P16 as held by this court in Food Inspector v. Hameed (1983 KLT 901). If so Ext.P16 cannot be used as an evidence to controvert the evidence of PW3. Therefore, based on Ext.P16, learned counsel cannot argue that sample examined at the Central Food Laboratory is not a homogeneous representative sample of the coriander whole purchased by PW3. Standard for coriander whole is provided under Appendix B as A.05.08. Under the appendix as then stood, the standard fixed for coriander whole is a Crrp 793/01 28 follows: Coriander whole means the dried mature fruits (seeds) of Coriandrum sativum. The proportion of extraneous matter including dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits other than coriander and insect damaged seeds shall not exceed 8.0 per cent by weight. The amount of insect damaged matter shall not exceed 5 per cent by weight. It shall be free from added colouring matter. Note inserted by GSR 205 of 1974, which came into force on 23/5/1974 reads: “Extraneous matter wherever prescribed under this item shall be classified as follows: a) Organic extraneous matter, such as chaff, stems and straw. b) Inorganic extraneous matter such as dust, dirt, stones, lumps of earth. Of the permitted extraneous Crrp 793/01 29 matter in item A.05.01, A.05.03, A.05.04, A.05.05, A.05.07, A.05.08, A.05.09, A.05.10, A.05.11, A.05.12, A.05.14, A.05.15, A.05.16, A.05.17 and A.05.18 the inorganic extraneous matter shall not exceed 2 per cent, by weight.” Therefore, mixed inorganic extraneous matter which could be found in coriander whole is 2 per cent. Ext.P17 establishes that coriander whole purchased by PW3 contained inorganic extraneous matter exceeding 2 percentage. Argument of the learned counsel is that as excess percentage is only 0.75, it is trifle and due to the vast difference in Exts.P16 and P17 reports, it may not be taken that sample is adulterated. Learned counsel relied on the decision of the Apex court in Nortan Mal v. State of Rajasthan (1995 SCC Crrp 793/01 30 (Cri) 780) and argued that error of judgment in analysis may be due to low weight and in such circumstances,