Decided on March 03,2003

M.K.BABU Appellant


KOSHY, J. - (1.) This Criminal Revision petition is referred to the Division Bench by learned single Judge of this Court (Mr. M. R. Hariharan Nair, J.) with the following observations : "It is evident therefore that there is conflict of views on the aspect whether want of definite evidence to the effect that the intermediary vessel used by the Food Inspector was dry and clean, by itself, would entitle the accused to get acquittal irrespective of the nature of the substance and the vessel used. I am of the view that this matter requires examination by a Bench." The petitioner in this case was convicted for the offences under Sections 2 (1a)(m) and 7(i) read with Section 16(i)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to "The Act"). In the decision reported in Food Inspector v. Harikumar, (1990) 1 Ker LT 36 : (1991 Cri LJ 641), a learned single Judge of this Court held that Food Inspector is taking sample as part of the official Act and therefore presumption can be drawn that the sample of food article was taken by the Food Inspector in a dry and clean vessel. Counsel for the petitioner brought before us a large number of decisions including the decision in Koyakutty v. Food Inspector, (2000) 3 Ker LT 693. According to the above decision, it is mandatory on the part of the prosecution to prove that intermediary vessel used also is dry and clean. It is the duty of the prosecution to adduce positive evidence to that aspect. In that case Food Inspector purchased 900 ml. of curd prepared from cow's milk from hotel where the accused was the Manager. The curd purchased was taken in a steel vessel. It was mixed and stirred with a spoon and thereafter it was poured in bottles and sampling was done in accordance with rules. One such sample was sent to the Public Analyst, who reported that the sample was adulterated. At the request of the accused second sample was also taken and sent to the Central Food Laboratory and that sample also did not conform to the prescribed standard. Milk fat was only 3.3.% instead of 3.5% and milk solids not fat was 5.5% instead of 8.5% as per Ext. P9. The contention raised by the accused/petitioner was that it was not proved by the Food Inspector by adducing positive evidence that intermediary vessel as well as the spoon used for mixing was dry and clean.
(2.) Facts found by the Court below concurrently based on evidence need no interference in a revision petition and we are only considering the legal points. According to the learned counsel for the petitioner/accused Rule 14 is mandatory. Rule 14 of the Prevention of Food Audulteration Rules (in short "Rules") reads as follows : "14. Manner of Sending sample for analysis - Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed." A reading of the rule will show that it is only applicable to the bottles or jars or other containers wherein the samples are taken and sealed. But as a corollary to the above rule, intermediary vessels when sample was first taken also should be dry and clean to avoid contamination of the food articles. It is the argument of the accused that prosecution should adduce positive evidence to show that intermediary vessels used for mixing etc. are also dry and clean. There is no dispute for the proposition that intermediary vessel, when sample is handled before it is sealed in containers also should be dry and clean otherwise, it will affect the quality and standard of sample. The main question is whether the Food Inspector shall adduce positive evidence to that effect, even when in the pleadings or during trial, accused has no conention that the intermediary vessels were not dry and clean. Before answering the question, we may consider the evidence in this case.
(3.) PW1 is the Food Inspector. He deposed that when he visited the hotel, he saw 15 litres of curd made out of cows milk for sale in a 20 litres vessel. He asked for 900 gms. of curd and that was given after payment of cash and obtaining Ext. P3 bills. It was further deposed that it was stirred well, divided into three equal parts, filled in dry and clean bottles and sealed as per law. It is stated as follows : (Vernacular matter omitted........Ed.) Therefore, he has given positive evidence before the Court that Rule 14 was complied with and the three bottles in which samples were taken were dry and clean. He also deposed that sampling was done in accordance with law. He has not specifically stated anything about the nature of intermediary steel vessel. In cross-examination, no suggestion was also put to show that intermediary vessel and spoon used for stirring and mixing the sample curd was not dry and clean. But it came out in cross-examination that the nature of the vessel was not stated in the mahzar. PWs. 2 and 3 are mahazar witnesses, who admitted that they signed the recovery mahazar and nothing was asked or deposed by them in chief examination or cross-examination regarding the intermediary vessels or spoon used for stirring. PW 4 is the Local (Health) Authority, who also deposed regarding the sending of samples etc. in accordance with rules. DW1, one Pankajakshan was examined by the defence and he deposed that he wrote the bill as requested by PW1. He also did not depose anything about the nature of intermediary vessel used. No question was asked regarding that by the accused. Now we come to Section 313 Cr. P.C. statement. In Section 313 statement, there was no case for the petitioner that intermediary vessel or spoon used were not clean and dry. His only case in Section 313 statement was that the curd was not kept for sale and it was butter milk intended for internal use. The courts below concurrently found that the curd intended for sale in the hotel was taken as sample. It is a finding of fact based on evidence.;

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