FOOD INSPECTOR , SHERTALAI MUNICIPALITY Vs. J. ARUMUGHOM CHETTIAR
LAWS(KER)-1967-1-37
HIGH COURT OF KERALA
Decided on January 23,1967

Food Inspector , Shertalai Municipality Appellant
VERSUS
J. Arumughom Chettiar Respondents

JUDGEMENT

- (1.) This revision petition has been filed by the Food Inspector, Shertalai Municipal Council for enhancement of the sentence awarded to the respondent by the Additional First Class Magistrate, Shertallay in C.C. 193/65. The petitioner who has been examined as pw. 1 in the case filed a complaint against the respondent as accused No. 2 and another person who is said to be his servant as accused No. 1 charging both of them with an offence under S.7(i) of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the Act) read with S.16(1)(a)(i) of the Act. The first accused could not be apprehended; and, therefore, the trial was made against the second accused, namely the respondent. The learned magistrate found the respondent guilty of the offence charged against him, and sentenced him to pay a fine of Rs. 1,000/- and in default to undergo Simple Imprisonment for three months.
(2.) The respondent was, at the relevant time, the Contractor for supply of milk to the Government Hospital at Shertallay. On 16-3-1965 pursuant to this contract, he sent a copper pot of milk to the hospital out of which a sample was purchased by pw. 1 for analysis under the Act. Action was taken by him as required by the Act; and one part of the sample was sent for examination to the Public Analyst. Ex. P-5 is the report of the Analyst, which shows that the sample sent for him for examination contained not less than 30 per cent of added water, and it was deficient in fat by 96 per cent. The learned Magistrate held on the evidence before her that the respondent was the person who sent the milk through the first accused, from which stock pw. 1 purchased the sample for analysis. The learned Magistrate also stated that the offence was of a very serious nature; and it amounted even to a great sin committed against humanity. After stating these reasons, she awarded the sentence as already mentioned.
(3.) The learned counsel for the petitioner drew my attention to S.16(1) of the Act which reads as follows: "16. Penalties (1) If any person (a) Whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interests of public health; (ii) other than an article of food referred to in sub clause (1) in contravention of any of the provisions of this Act or of any rule made thereunder; or (b) Prevents a food inspector from taking a sample as authorised by this Act; or (c) prevents a food inspector from exercising any other power conferred on him by or under this Act; or (d) being a manufacturer of an article of food, has in his possession or in any of the premises occupied by him, any material which may be employed for the purpose of adulteration; or (e) uses any report or certificate of a test or analysis made by the Director of the Centra] Food Laboratory or by a Public Analyst or any extract thereof for the purpose of advertising any article of food; or (f) whether by himself or by any other person on his behalf gives to the vendor a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of S.6 be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with a fine which shall not be less than one thousand rupees; Provided that (i) If the offence is under sub-section (1) of clause (a) and is with respect to article of food which is adulterated under sub clause (1) of clause (i) of S.2 or misbranded under sub clause (k) of clause (ix) of that section; or (ii) If the offence is under sub clause (ii) of clause (a), the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees." He submitted that this is a case which falls under S.16(1)(a)(i); and it does not fall within clauses (i) or (ii) of the proviso to S.16(1), and, that, therefore, the court was bound to award a punishment of imprisonment for a term which shall not be less than six months but which may extend to six years and a fine which shall not be less than Rs. 1000/-. He also submitted that the proviso to S.16(1) has no application to the case; because the second part of the proviso obviously does not apply, and as regards the first part of the proviso, even though it is not disputed that the article of food sold in this case will be adulterated under sub clause (1) of clause (1) of S.2 of the Act, it is also adulterated within the meaning of clauses (a), (b) and (d) of S.2 (1) of the Act. The petitioner's learned counsel contended that, when once the article of food concerned falls in any of the clauses to S.2(i) other than clause (1) thereof, the application of the proviso to S.16(1) is ruled out. In other words, he wants me to construe clause (1) of S.2(i) as a residuary clause. It is difficult for me to uphold this contention, because Clause.2(i)(1) does not, on the language employed in it, purport to be a residuary clause. Therefore, there is difficulty to hold that clause (1) will apply only, if the case does not fall in any of the preceding clauses.However, it is not necessary for 1112 to decide this question, particularly so it is a matter of first impression, and I can dispose of this case without pronouncing any definite opinion on the same.;


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