IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 Crl.Rev.Pet.No. 745 of 2002 --------------------------------------------- CRA.479/1999 of ADDL. SESSIONS COURT (FAST TRACK-I), KOZHIKODE ST.596/1994 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: M.MUNEER, SON OF AHAMMED HAJI, MAKKIL HOUSE, PULLAVOOR POST, CHATHAMANGALA, KOZHIKODE. BY ADV. SRI.V.G.ARUN RESPONDENTS/RESPONDENTS-COMPLAINANT: 1. THE FOOD INSPECTOR, KOZHIKODE CIRCLE, KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.I.B.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.4366/2002 IN CRRP 745/2002 DISMISSED 21.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.745 of 2002 -------------------------- ORDER The vendor of gingelly oil, who is conducting a grocery shop in Chathamangalam in Shop No.3/317, is the revision petitioner. The Food Inspector of Kozhikode Circle went to the shop of the petitioner on 9.12.1993 at about 11 a.m. and disclosing his identity and intention to send the gingelly oil sold from the shop for analysis, purchased three bottles of gingelly oil, each containing 170 ml. from a stock of 15 bottles kept in the shop for sale, paying Rs.30/-, being the cost. As provided under the Rules, Exhibit P4 mahazar was prepared and got the signature of the petitioner in the mahazar and in the samples. One sample was sent to the Public Analyst and obtained Exhibit P13 report showing that the gingelly oil is adulterated. The remaining two samples were sent to the Local Health Authority. Finding that the gingelly oil bottles CRRP 745/02 2 contained a label, which shows that they are manufactured by National Oil Industries, Mavoor, after getting the details of the licensee, notice was sent to the second accused, on getting Exhibit P13 report. Second accused filed an application before the Magistrate availing the right to send it for analysis by Central Food Laboratory and obtained Exhibit P20 report, which also shows that the gingelly oil was adulterated. The food Inspector filed a complaint alleging that both the accused committed offences under Section 16(1)(a) (i) read with Section 2(ia) (a) and (m) and 7(1) of Prevention of food Adulteration Act and Rule 5 para A.17.11 of Appendix-B of Prevention of Food Adulteration Rules. 2. Both the accused pleaded not guilty of the offences. The Food Inspector was examined as PW1. the Executive Officers of the Panchayat were examined as PW4 and PW5. Exhibits P1 to P32 were marked. Petitioner was examined as DW1. CRRP 745/02 3 3. Learned Magistrate, on the evidence, found that second accused is not guilty of the offences and acquitted her. Petitioner was convicted and sentenced. Petitioner challenged the conviction and sentence before Sessions Court (Fast Track-I), Kozhikode in Crl.A.No.94/1996. As it was contended by the petitioner that in spite of the petition filed to examine the Director of Central Food Laboratory, it was not granted, learned Additional Sessions Judge set aside the conviction and remanded the case to the trial Magistrate with a direction to grant an opportunity to the petitioner to examine the Director of Central Food Laboratory or such other experts to prove the fact regarding increase in acid value, as it was contended that presence of acid, in excess of the prescribed limit, was not due to any adulteration, but natural. Petitioner, thereafter, examined DW2, the Public Analyst, instead of the Director of Central Food Laboratory. It was challenged before Sessions Court, Kozhikode in Crl.A.No.479/1999. Learned CRRP 745/02 4 Additional Sessions Judge, on re-appreciation of the evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 5. Argument of the learned counsel is that evidence of DW2, the Public Analyst, who is an expert, establishes that due to natural process, without adulteration, presence of acid in gingelly oil would increase by lapse of time and though the Food Inspector purchased the gingelly oil on 9.12.1993, at the Central Food Laboratory, it was examined only on 30.3.1994 and hence, presence of 15% of acid would be caused due to lapse of time, as proved by the evidence of DW2 and therefore, petitioner cannot be convicted on the ground that the gingelly oil is adulterated. Learned counsel would argue that in any case, the complaint, the mahazar and the evidence of PW1 establish that PW1 purchased three bottles of gingelly oil from a CRRP 745/02 5 stock of 15 bottles and all the bottles are identically labelled and sealed and the bottles show that the gingelly oil is manufactured by National Oil Industries, Mavoor and evidence of PW4, the Executive Officer of the Panchayat with Exhibits P18 and P19 and P28 application submitted by the second accused and Exhibit P27, relevant page of the Register for issuance of licence, establish that second accused is a duly licensed manufacturer and the fact that the Food Inspector himself had issued notice to the second accused, as the manufacturer, establishes that petitioner purchased the gingelly oil from a duly licensed manufacturer, the second accused and therefore, petitioner should have been granted the benefit under Section 19(2)(a)(i) of Prevention of Food Adulteration Act. It was argued that second accused is proved to be a duly licensed manufacturer and even in the absence of a warranty in the prescribed form, petitioner is entitled to get the benefit under Section 19(2)(a)(i), provided, it is proved CRRP 745/02 6 that petitioner purchased the food article from a duly licensed manufacturer and sold it in the same state as he purchased it. Evidence of DW1 establishes that he purchased the gingelly oil from a duly licensed manufacturer and sold it in the same state as he purchased it and therefore, petitioner is entitled to get the benefit under Section 19(2)(a)(i) of Prevention of Food Adulteration Act. 6. Learned Public Prosecutor submitted that there is no evidence to prove that petitioner purchased the adulterated food article from a duly licensed manufacturer and not even a receipt or a written warranty was produced. 7. Though Exhibit P20 report of Central Food Laboratory was obtained at the instance of the second accused, as mandated under sub-section (3) of Section 13, Exhibit P20 report, issued by the Director of Central Food Laboratory under sub- section (2-B), superseded Exhibit P13 report given by the Public Analysit under sub-section (1) of CRRP 745/02 7 Section 13 of Prevention of Food Adulteration Act. It cannot be said that Exhibit P13 report would stand superseded as against the second accused but, not as against the first accused. In view of sub- section (3) of Section 13, one of the remaining samples kept at the Local Health Authority was sent to the Central Food Laboratory at the instance of one of the accused and a report was furnished by the Director of Central Food Laboratory. That report superseded the earlier report submitted by the Public Analyst. Therefore, petitioner is not entitled to contend that because of the failure to comply with the procedural formalities prescribed for sending the first sample to the Public analyst, Exhibit P13 report cannot be accepted. 8. Exhibit P20 shows that as against the prescribed limit of 6% acid, the gingelly oil examined at the Central Food Laboratory contained 15% acid. Though it was argued by the learned counsel that in the light of the evidence of DW2, the Public Analyst, presence of excess percentage CRRP 745/02 8 of acid could be due to natural causes and not due to any adulteration, I cannot agree with the submission. Even though petitioner sought permission from the appellate court to examine the Director of Central Food Laboratory, he did not examine the Director and instead, examined only the Public Analyst, whose report was superseded, in view of the report submitted by the Director of Central Food Laboratory. If it is taken that DW2 was examined as an expert, his evidence does not show what will be the percentage of acid that could be naturally formed by lapse of three months. Exhibit P13 report is dated 6.1.1994 and Exhibit P20 is dated 30.3.1994. Therefore, unless the petitioner could establish that excess percentage of acid to the extent of 9% found at the Central Food Laboratory was caused naturally by lapse of time, argument of the learned counsel that the food article is not adulterated cannot be accepted. Evidence of DW2 is insufficient to prove that excess percentage of acid to the extent of 9% was CRRP 745/02 9 caused because of lapse of time. Therefore, the findings of the courts below that the gingelly oil purchased from the shop of the petitioner is adulterated is perfectly legal and correct. 9. But the crucial question is whether petitioner is entitled to the benefit under Section 19(2)(a)(i) of Prevention of Food Adulteration Act. Under sub-section (2) of Section 19, a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article of food in a case, where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributer or dealer or from any other manufacturer, distributor or dealer with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. Therefore, to avail the benefit under clause (a) of sub-section (2) of Section 19, a vendor should purchase the CRRP 745/02 10 article of food either from a duly licensed manufacturer, distributor or dealer where a licence is prescribed for the sale thereof or in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form. Therefore, a written warranty in the prescribed form is mandated only in the case of purchase of an article of food from the manufacturer, distributor or dealer, where a licence is not prescribed for the sale thereof. In the latter case, the vendor should have obtained a written warranty in the prescribed form. Section 19(2) of Prevention of Food Adulteration Act reads: “19(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves - (a) that he purchased the article of food (i) in a case where a license is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer, CRRP 745/02 11 (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.” 10. The case of the petitioner is that he purchased the gingelly oil, which is proved to be adulterated, from the second accused. Even the Food Inspector has no case that the gingelly oil, purchased from PW1, under Exhibit P3 cash receipt, was not manufactured by National Oil Industries, Mavoor. Evidence of PW1 proves that all the 15 bottles were identically labelled and sealed and each label shows that it was manufactured by National Oil Industries, Mavoor, aided and approved by K and V.I. Board. Therefore, evidence of PW4 and the application filed by the second accused for renewal of the licence establish that second accused is a duly licensed manufacturer. There is no case that a licence is not prescribed for the CRRP 745/02 12 manufacture of gingelly oil. In such circumstances, if there is evidence to prove that petitioner purchased the gingelly oil from the second accused and he sold it in the same state as he purchased it, he is entitled to get the benefit under Section 19(2) of Prevention of Food Adulteration Act. The second accused was proved to be a duly licensed manufacturer. There is no case for the Food Inspector or the second accused, at the time when petitioner was cross-examined as PW1, that the gingelly oil was not kept or sold in the same state as petitioner purchased it. The only question, therefore, is whether petitioner had purchased the gingelly oil from the second accused. 11. True, petitioner did not produce any cash receipt or bill to show that he purchased the gingelly oil from the second accused. It is also true that even in Exhibit P4 mahazar, prepared by PW1, it is recorded that petitioner disclosed to the Food Inspector that he purchased the gingelly oil from the manufacturer and obtained a receipt. CRRP 745/02 13 It is also true that in spite of the promise to make available the receipt before the Food Inspector, he did not produce the same. Receipt was not produced before the court also. Receipt is not a mandatory requirement, without which, the benefit under Section 19(2)(a)(i) of Prevention of Food Adulteration Act cannot be granted. Section 19(2) (a)(i) of Prevention of Food Adulteration Act does not mandate that petitioner shall produce a receipt or bill to claim the benefit, if he is otherwise entitled to. What is provided under Section 19(2) (a)(i) is that a vendor has to prove that “he purchased the article of food in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer”. Therefore, what is to be proved is that he purchased the article of food from a duly licensed manufacturer. In the ordinary course, it has to be proved by production of a receipt or bill, evidencing the purchase. But, if there is evidence to prove that a vendor had purchased the food CRRP 745/02 14 article from a duly licensed manufacturer, but, before the article was purchased by the Food Inspector for the purpose of analysis, the receipt or the bill was lost and therefore, it could not be produced, it cannot be said that in all such cases, the vendor cannot be granted the benefit available under Section 19(2)(a)(i) of Prevention of Food Adulteration Act for non production of the receipt or the bill. If the available evidence establish that petitioner purchased the gingelly oil manufactured by a duly licensed manufacturer, distributor or dealer and he sold it in the same state as he purchased it, he is to be granted the benefit. The question is whether there is acceptable legal evidence to prove that he purchased the gingelly oil either from a duly licensed manufacturer, distributor or dealer. 12. As stated earlier, evidence establishes that second accused, who is the manufacturer of gingelly oil, is duly licensed. Evidence of DW1 establishes that the gingelly oil used to be CRRP 745/02 15 supplied by the second accused directly or through the salesman coming in a van. Though second accused cross-examined DW1 and suggested that he did not purchase it from the second accused, evidence of DW1 that the gingelly oil, used to be supplied by the manufacturer through the salesman coming in a van, was not challenged in cross-examination. Evidence of DW1 establishes that he purchased it from the second accused, when the salesman came in a van. I find no reason to disbelieve that evidence, when PW1 could find 15 identically labelled bottles of gingelly oil, with the label, manufactured by the second accused, in the shop. In such circumstances, even though petitioner did not produce a cash receipt or a bill to prove that it was purchased from the second accused, evidence of DW1 establishes that he purchased the gingelly oil from the second accused. When the evidence of DW1 establishes that he sold it in the same state as he purchased it, he is definitely entitled to the benefit under Section 19(2)(a)(i) of Prevention of CRRP 745/02 16 Food Adulteration Act. Hence, conviction of the petitioner for the offence is not sustainable. Revision is allowed. Conviction and sentence of the petitioner by Judicial First Class Magistrate, Kunnamangalam in S.T.No.596/1994, confirmed by the learned Additional Sessions Judge in Crl.A.No. 479/1999 is set aside. Petitioner is found not guilty of the offence granting the benefit under Section 19(2)(a)(i) of Prevention of Food Adulteration Act. Petitioner is acquitted. Bail bond executed by the petitioner stands cancelled. 21st May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 745/02 17 M.Saidharan Nambiar, J. -------------------------- Crl.R.P.No.745 of 2002 -------------------------- ORDER 21st May, 2010