Decided on April 06,1967



- (1.) The petitioners are accused Nos. 1 and 2 respectively in C. C. No. 172 of 1965 on the file of the Sub Divisional Magistrate, Hosdrug. They were convicted by the learned Magistrate for the offence under S.16 (1) (a) read with S.7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and R.44-A of the Rules made thereunder; and each of them was sentenced to undergo Simple Imprisonment for six months and to pay a fine of Rs. 1,000/-. They filed an appeal in the Sessions Court of Tellicherry as Crl. Appeal No. 93 of 1965. Their conviction and sentence were confirmed by the learned Sessions Judge. The petitioners have therefore, come in revision before this Court.
(2.) Petitioner No. 1 is a dealer in provision articles within the Muliyar Panchayat. Second petitioner is a salesman in the provision shop. On 31-5-1965 at 10.45 A. M. pw. 1 the Food Inspector of the Panchayat inspected the provision shop of the first petitioner; and pw. 1 found lac dhal otherwise known as Kesari dhal exposed for sale in the said shop. The first petitioner was not then present in the shop; and the second petitioner was in charge of the same. pw. 1 purchased from the second petitioner 750 grams of the Kesari dhal out of the stock exposed for sale in the said shop for the purpose of the same being analysed by a public analyst. Ext. P1 dated 31 5 1965 is a notice given by pw. 1 to the second petitioner in the prescribed form stating that he had purchased the said Kesari dhal for the above purpose. pw. 1 paid the price of Rs. 0-90 for the said article; and Ext. P-2 of even date is the receipt passed by the second petitioner acknowledging payment of the price. pw. 1 took action as required by S.11 of the Act, and forwarded a part of the Kesari dhal for analysis to the Public Analyst at Trivandrum. Ext. P-3 dated 31 5 1965 is the office copy of a letter forwarding the sample for analysis. pw. 1 also prepared a mahazar regarding the purchase of the article from the second petitioner and the action taken by him at the spot. Ext. P-4 is the said mahazar. Ext. P-5 dated 22nd July 1965 is the report of the Public Analyist; and it states that as a result of the examination conducted by him he was of the opinion that the sample consisted of lac dhal otherwise known as Kesari dhal. On the basis of this report, pw. 1 filed a complaint against the petitioners charging them of the offences for which they have been convicted by the courts below.
(3.) The petitioners' learned counsel contended in the first instance that no reliance can be placed on the action taken by pw. 1, as the evidence in the case shows that he did not comply with the requirements of S.10 (7) of the Act, which is mandatory in character. The learned counsel submitted that the prosecution examined two witnesses, pw. 2 and pw. 3, as persons stated to have been present at the time pw. 1 purchased the sample from the second petitioner, and that their evidence shows that pw. 1 did not act in compliance with S.10 (7) of the Act. This is a contention which was advanced in both the courts below; but it was not accepted. pws. 2 and 3 are attesting witnesses to Exts. P1, P2 and P4; and they show that these witnesses were present at the shop of the petitioners at the time pw. 1 purchased the Kesari dhal from the second petitioner, and thereafter until pw. 1 completed the action requisite to be taken under S.10 of the Act. pw. 1 gives evidence to this effect. Under these circumstances, the courts below held that the sample was taken by pw. 1 in compliance with the requirements of the statute. The objection taken by the petitioners' learned counsel to this finding has therefore no merit.;

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