HIGH COURT OF KERALA
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(1.) Both these appeals have been preferred by the State against the acquittal of the accused in C.C. Nos. 1297 and 1298 of 1953 on the file of the II Class Magistrates Court at Mukundapuram. These prosecutions were launched at the instance of the Sanitary Inspector at Chalakudy. Both the accused are traders having their business at Chalakudy, and the charge against them was that the tea that was being sold from their shops was adulterated tea and that therefore they were guilty of having committed the offence under S.4(1)(d) of the Cochin Prevention of Food Adulteration Act (Act XIV of 1109) read with Rules 22(a) and 28 of the rules framed under S. 19 of the Act. The accused in C.C. 1297/1953 was dealing in Kannan Devan tea sold in quarter pound packets, while the accused in C.C. 1298/1953 was dealing in Brooke Bond tea dust sold in quarter-pound packets. The Sanitary Inspector who has been examined as the first witness for the prosecution in each of these cases, purchased one packet of Kannan Devan tea from the accused in C.C. 1297 on 12.8.1953 and another packet of Brook Bond tea dust from the accused in C.C. 1298 on the same day and got the samples of tea taken from each of these packets examined by the Public Analyst at Ernakulam who has been examined as prosecution 2nd witness. The certificate issued by this witness is to the effect that the samples of tea were not genuine tea for the reason that the sample of tea purchased from the accused in C.C. 1297 contained about 4 to 6 per cent of added powdered tea stalk, while the sample of tea purchased from the accused in C.C. 1298 contained 2 to 4 per cent of added powdered tea stalk. The prosecutions were started on the strength of the certificates thus issued by the Public Analyst and it was produced and proved as Ext. C at the trial of each case. After a due consideration of the evidence adduced by the prosecutions the learned Magistrate came to the conclusion that the tea that was sold by each of the accused was not proved to be adulterated tea and that therefore the offence alleged against them was not brought home to them. According they were acquitted. The correctness of the order of acquittal is challenged by the State in these two appeals.
(2.) Since the question for decision in both the appeals is the same, they can be disposed of by a common judgment. The question is whether the evidence of the Public Analyst Pw. 2 is sufficient to make out the offence charged against the accused in these two cases. As already stated, the main charge is under S.4(1)(d) of the Cochin Prevention of Food Adulteration Act. Cl. (d) of sub-s. (1) runs as follows:-
Every person who, directly or indirectly, himself or by any other person on his behalf:
Manufacturers or stores for sale or offers or exposes for sale or hawks about or sells milk, cream, butter, curds, butter-milk, ghee, tea or coffee or any other food which is not up to the standard of purity if any, prescribed by the Government or any article similar to any article, in respect of which a standard of purity has been so prescribed, under a name which in any way resembles the name of such article shall be punished for the first offence with fine which may extend to one hundred rupees and for every subsequent offence with fine which may extend to five hundred rupees:
Provided that in the following cases no offence under this section shall be deemed to have been committed:
(i) Where any innocuous material has been used or admixed in the composition or preparation of the food to render the same fit for carriage or consumption and not fraudulently to increase the bulk, weight or measure of the food or to conceal or debase the quality thereof; or
(ii) Where in the process of production, collection, preparation or conveyance of the food some extraneous material has unavoidably been admixed therewith; or
(iii) Where any innocuous material has been added or admixed or the article of food sold is not up to the standard of purity prescribed by the Government and before the sale the vendor has clearly brought the fact to the notice of the purchaser either by means of label on or with the food or in such other manner as the Government may, by rule framed under S. 19 of this Act, prescribe; or
(iv) Where the food is the subject of a patent in force and is supplied in the State required by the specification thereof:
R. 22 of the rules framed under S. 19 of the Act has prescribed the standard of purity to be satisfied in respect of tea sold for public consumption. According to the prosecution the tea that was being sold by the accused in each of these cases was impure tea when tested by the standard indicated by R. 22 Cl. (a) which runs as follows:-
Tea shall be derived exclusively from the leaves and buds of plants of the Camellia genus and Thea species.
R. 28 prescribes the punishment for breach of the rules framed under S. 19 of the Act.
(3.) The prosecution relies on the evidence of Pw. 2 to substantiate the charge that the tea purchased by Pw. 1 from each of the accused was not up to the standard of purity prescribed by R. 22 Cl. (a) and that such tea was impure and adulterated tea. After examining the sample of the tea which Pw. 1 had purchased from the accused in C.C. 1297, the opinion formed by Pw. 2 has been recorded by him in Ext. C in the following terms:
I am of opinion that the said sample is not genuine tea. It is not genuine for the reason that it is not derived exclusively from the leaves and buds of plants of the Camellia genus, and Thea species (R. 22(a), Cochin Prevention of Food Adulteration Rules, 1114). It contains about 4-6 per cent of added powdered tea stalks.
The certificate issued in the other case is in the same terms with the only difference that the percentage of added powdered tea stalks in the sample examined in that case was only 2 to 4. From this certificate and the evidence given by Pw. 2 it is clear that the sample of tea did not contain any foreign matter, i.e., any matter which is foreign to the tea plant. What is stated is that the tea sold by the accused contained 4-6 per cent of added powdered tea stalk. The question is whether the presence of such a percentage of powdered tea stalk in the tea would make the tea impure or adulterated. In the cross examination of Pw. 2 he has clearly admitted that manufactured tea will contain inevitably a certain percentage of stalk and that the properties of natural and added stalk are mostly the same. When he was further confronted with the question as to how he could distinguish between natural and added stalk, the answer given by him was that he could distinguish between the two by mere appearance and sometimes by taste. He admits that the latter method was not tried in respect of the samples examined in the two cases. He tried to maintain that he could distinguish natural stalk present in manufactured tea from added stalk by means of the difference in colour. At the same time he had to admit that he does not know the colour of powdered natural stalk. Without knowing its colour it is obvious that he could not distinguish between natural stalk and added stalk by their mere appearance. Thus no weight can be attached to his assertion that the 4-6 per cent of powdered tea stalk found in the sample examined by him was added powdered stalk. The witness has stated that the presence of tea stalks that will inevitably get mixed up with manufactured tea varies from 20-25 per cent. He has further admitted that he did not estimate the percentage of the natural stalk present in the sample of tea examined by him. He admits that he has no idea of the per- centage of waste products that may be found in manufactured tea. In the face of these admissions it is difficult to understand how this witness came to the conclusion that 4-6 per cent of powdered tea stalk found in the sample was really an addition made subsequent to the manufacture of the tea.;
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