IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 Crl.Rev.Pet.No. 453 of 2002 -------------------------------------------- CRA.106/1994 of SESSIONS COURT, MANJERI CC.117/1990 of JFCM, TIRUR ........... REVN. PETITIONER/APPELLANT/2ND ACCUSED: THIYAKKANDI MEETHAL AYILANDI, LICENSEE, NON-VEGETARIAN TEA STALL, KUTTIPURAM RAILWAY STATION. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: 1. FOOD INSPECTOR & CHIEF HEALTH INSPECTOR, SOUTHERN RAILWAY, SHORNUR JUNCTION. 2. STATE OF KERALA, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.3030/2002 IN CRRP 453/2002 DISMISSED 28.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.453 of 2002 -------------------------- ORDER Petitioner, the licencee of the non-vegetarian Tea Stall situated at Kuttipuram Railway Station, was convicted and sentenced to rigorous imprisonment for six months and a fine of Rs.1,000/- and in default, simple imprisonment for two months for the offence under Sections 7(i) and (v) read with Section 2(ia) and (j) of Prevention of Food Adulteration Act and Rules 23 and 28 of Prevention of Food Adulteration Rules and Section 16(1A)(i) of Prevention of Food Adulteration Act by Judicial First Class Magistrate, Tirur in C.C.No. 117/1990. Petitioner challenged the conviction and sentence before Sessions Court, Manjeri in Crl.A. No.106/1994. Learned Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. CRRP 453/02 2 2. Prosecution case is that PW1, the Food Inspector-cum-Chief Health Inspector attached to Southern Railway, visited Kuttipuram Railway Station and after disclosing his identity and the intention to take sample of Halwa found displayed in that stall, paid Rs.15/- and purchased one kilogram of Halwa. In the presence of the vendor, the first accused, PW1 divided the Halwa into three equal parts and duly packed them in three separate polythene covers and sealed them in accordance with Rules and Exhibit P11 mahazar was prepared. One of the samples was sent to the Public Analyst for examination through special messenger and received by the Public Analyst under Exhibits P12. The remaining two samples were sent to the Local Health Authority, evidenced by Exhibit P13. Public Analyst sent Exhibit P14 report to the effect that the sample contained non permitted Coal Tar Dye Orange II and therefore, it is adulterated. After obtaining necessary sanction, complaint was filed before learned Magistrate and under Exhibit P17, CRRP 453/02 3 copy of Exhibit P14 was sent to the accused. They did not opt the remedy provided under Section 13(2) of Prevention of Food Adulteraiton Act and did not file an application to send the second sample to the Central Food Laboratory for examination. First accused absconded. Therefore, the case as against him was split up. 3. Petitioner was tried by the learned Magistrate and he pleaded not guilty. Prosecution examined PWs 1 and 2 and marked Exhibits P1 to P17. On the side of the petitioner, DW1, the Public Analyst, was examined and Exhibit D1 was marked. 4. Learned Magistrate accepted the evidence of PWs 1 and 2, corroborated by Exhibit P11 mahazar, and found that one kilogram of Halwa displayed in the stall for sale was purchased by PW1 disclosing his identity and thereafter the sample was divided into three equal parts and each part was separately packed and each packet was separately sealed and one sample was sent to the Public Analyst and the two remaining samples were sent to Local Health CRRP 453/02 4 Authority. Exhibit P14 report establishes that the Halwa sold to PW1 was adulterated as it contained non permitted Coal Tar Dye Orange II. Learned Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence. Revision is filed challenging the conviction and sentence. 5. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 6. Argument of the learned counsel is that courts below did not properly consider Exhibit D1 report submitted by DW1, which shows that the sample was received on 21.12.1989 and in the light of Exhibit D1, Exhibit P14 report should not have been accepted. It is contended that when the sample was received by the Public Analyst on 21.12.1989, it cannot be the article of food purchased from Kuttippuram Railway Station on 21.12.1989 and therefore, based on Exhibit P14 report, petitioner cannot be convicted. Learned counsel would also argue that apart from examination of PW2, no independent witness was examined and Exhibit P11 CRRP 453/02 5 mahazar shows that it was prepared not in the presence of any independent witness as mandated under Section 10(7) of Prevention of Food Adulteration Act and therefore, conviction is not sustainable. 7. Learned Public Prosecutor submitted that Exhibit P11 mahazar, with the evidence of PW1, establish that though PW1 requested the persons present therein to be witnesses to the sampling, but, none of them was prepared and hence, PW2 alone was the witness to the seizure and that is not fatal to the prosecution case. Learned Public Prosecutor also pointed out that Exhibits P9 and P13 establish that after preparation of the samples by PW1 at 8.20 a.m., one sample was sent to the Public Analyst in the evening through special messenger and Exhibit P12 shows that it was received at the Laboratory only on 22.12.1989 and evidence of DW1 establishes that the date of receipt of the sample shown as 21.12.1989 in Exhibit D1 is a mistake and as mistake had occurred CRRP 453/02 6 in Exhibit D1, Exhibit P14 report was prepared and sent and therefore, there is no reason to interfere with the conviction. 8. Exhibit P11 mahazar, a contemporaneous record prepared at the time of sampling, establishes that PW1 had requested the persons present therein to be witnesses to the sampling as well as to the seizure and none of them was prepared to be the witnesses and therefore, PW1 was compelled to accept PW2, who was accompanying PW1, to be the sole witness. Evidence of PW1 that he requested the persons present therein to be witnesses and they refused, was not challenged in cross-examination. In such circumstances, the fact that sampling was done, not in the presence of independent witnesses, is not fatal. As declared by the Apex Court in Shri Ram Labhaya v. Municipal Corporation of Delhi ((1974) 4 SCC 491), the obligation which Section 10(7) of Prevention of Food Adulteration Act casts on the Food Inspector is to “call” one or more persons to be present when CRRP 453/02 7 he takes action and as the Food Inspector cannot compel their presence and the evidence shows that he had requested the persons present therein to be witnesses, but they refused, the failure to prepare the sampling in the presence of independent witnesses, as provided under Section 10(7) of Prevention of Food Adulteration Act, is not fatal. As stated earlier, Exhibit P11 mahazar with the evidence of PW1 establish that PW1 had made every effort to get presence of an independent witness, but, as none was prepared, it was done in the presence of PW2. Therefore, on that ground, no interference is warranted on the conviction. 9. As rightly found by the courts below, evidence of PWs 1 and 2 and Exhibit P11 mahazar establish that PW1, after disclosing his identity and the intention, purchased one kilogram of Halwa, which was displayed for sale at the non-vegetarian stall of Kuttippuram Railway Station and prepared three samples and one sample was sent to the Public Analyst and Exhibit P14 report of the Public CRRP 453/02 8 Analyst shows that the sample is adulterated as non permitted Coal Tar Dye Orange II was used. 10. Argument of the learned counsel is that in the light of Exhibit D1 report of the Public Analyst, it is to be found that Exhibit P14 is not the report obtained on examination of the sample collected by PW1. Exhibit D1 is identical to Exhibit P14 report, except the fact that Exhibit D1 shows that the sample was received on 21.12.1989, while Exhibit P14 shows that the sample was received only on 22.12.1989. Argument of the learned counsel is that as the evidence of PW1 shows that the Code number will be the same for the seized article on a particular day, based on the code number alone, it cannot be said that Exhibit D1 and Exhibit P14 are not in respect of the same sample. Though the argument may appear attractive at the first blush, evidence of DW1 establishes that in Exhibit D1, the date of receipt of the sample was mistakenly shown as 21.12.1989, instead of 22.12.1989. CRRP 453/02 9 11. Exhibit P11 mahazar establishes that it was prepared on 21.12.1989. Exhibit P10 is the specimen impression seal used to seal the samples by PW1. It is also seen dated 21.12.1989. Evidence of PW1 establishes that after completing the preparation of samples, he sent one such sample to the Public Analyst through special messenger. Under Exhibit P12, acknowledgment was received from the Public Analyst. Exhibit P12 shows that the Public Analyst had acknowledged receipt of one sealed packet and one sealed cover on 22.12.1989. Exhibit P12 conclusively establishes that the sample forwarded to the Public Analyst reached the Public Analyst only on 22.12.1989. It also shows that the remaining two samples prepared by PW1 were received at the Local Health Laboratory only on 22.12.1989, as Exhibit P13 contains acknowledgment of receipt of the two samples at the Local Health Laboratory on 22.12.1989. In the light of Exhibit P12, it is conclusively proved that the sample which was examined at the Laboratory was received by the CRRP 453/02 10 Public Analyst, as seen in Exhibit P14 report, only on 22.12.1989. If that be so, as deposed by DW1, receipt of the sample mentioned in Exhibit D1 as 21.12.1989 is only a clerical mistake. Learned counsel argued that if, due to the error committed in noting the date of the sample received by the Public Analyst Exhibit D1 was cancelled and Exhibit P14 was issued, it should be reflected in Exhibit P14 and in the absence of any such indication in Exhibit P14 that it was issued after cancelling Exhibit D1, the said case cannot be accepted. Public Analyst was examined by the petitioner himself as DW1. In chief examination, DW1 deposed that date of receipt of the sample in Exhibit D1 was mistakenly mentioned as 21.12.1989 and finding the mistake, it was cancelled and Exhibit P14 was issued. That version of DW1 was not challenged. No suggestion was put to DW1 that there was no mistake in Exhibit D1 with regard to the date of receipt of the sample or that it was cancelled. When the witness examined by the petitioner himself deposed CRRP 453/02 11 the fact, which was not challenged, petitioner is not entitled to contend that the sample was not received on 22.12.1989, as stated in Exhibit P14, but was received on 21.12.1989, as stated in Exhibit D1. 12. Learned counsel then argued that Exhibit P11 mahazar contains several corrections and even the name of the licencee was originally shown as T.M.Gopalan and not T.M.Eyilandi and therefore, Exhibit P11 was not prepared at that time, PW1 was not cross-examined with regard to the corrections. While preparing Exhibit P11 if mistake was committed, PW1 is entitled to correct the mistakes then and there. When the corrections made in Exhibit P11 are seen authenticated by PW1 himself and there is no case that those corrections were made subsequently, petitioner is not entitled to argue in the vacuum that Exhibit P11 was not prepared at the time of seizure and therefore, Exhibit P11 is not genuine. Evidence conclusively establish that the Halwa purchased by PW1 from a CRRP 453/02 12 Non-vegetarian Tea Stall of Kuttipuram Railway Station was adulterated is proved by Exhibit P14 report. Conviction of the petitioner, in such circumstances, is perfectly legal. As the fact that petitioner was the licencee at that time is not disputed and is proved by Exhibit P4, learned Magistrate has awarded only the minimum sentence for the offence provided under Prevention of Food Adulteration Act. Hence, no interference is warranted in the sentence also. Revision fails and it is dismissed. Petitioner is directed to appear before Judicial First Class Magistrate, Tirur on 29.07.2010. The Magistrate is directed to execute the sentence. 28th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 453/02 13 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.453 of 2002 -------------------------- ORDER 28th June, 2010