K VIJAYAKUMAR Vs. FOOD INSPECTOR
LAWS(KER)-2003-7-49
HIGH COURT OF KERALA
Decided on July 01,2003

K.VIJAYAKUMAR Appellant
VERSUS
FOOD INSPECTOR Respondents

JUDGEMENT

- (1.) PROCEEDINGS in a criminal case in which the allegation is regarding the commission of the offences under the prevention of Food adulteration Act are sought to be quashed by one of the accused mainly on two grounds; one, non-compliance of the provision in Section 13 (2) of the Act and two, not obtaining proper sanction for prosecution as envisaged in Section 20 of the Act before filing complaint in Court. Petitioner is the third accused in the case and the allegation against him and the other two accused is that they committed the offences under Section 2 (1a) (m) read with Section 7 (i) (v) and appendix B. A. 25. 02. 01 punishable under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act" ).
(2.) ON 19-11-1996 at 11. 15 a. m. the Food Inspector, vellinizhy Grama Panchayat (Mannarkkad Circle), after observing necessary prescribed formalities, inspected the grocery shop in 7/491 where the first accused was doing business. According to the Food Inspector, the first accused told him that he was the licensee and salesman of the shop. ON giving Form VI notice to him the Food inspector obtained the counterfoil singed by him. ON paying Rs. 100/- and on obtaining a cash receipt the Food Inspector purchased form the first accused one packet of mixed fruit chewing gum (chiclets)exhibited in the shop of the first accused for sale. Thereafter, he divided the chiclets purchased into three equal parts and on properly packing, sealing and labeling the same, one sample along with Form VII Memorandum was sent to the public Analyst, Regional Analytical Laboratory, Kozhikode for analysis. Remaining two parts of the sample were sent to the local health authority, vellinizhy Panchayat along with copies of Form VII Memorandum and specimen impressions of the seal used to seal the sample. The Public Analyst in Form III report dated 24-12-1996 gave the opinion that the mixed fruit chewing gum does not conform to the standard prescribed for chewing gum under the Prevention of food Adulteration Rules, 1955 and hence adulterated. According to the Food inspector, the second accused is the stockist and distributor for the third accused. The Food Inspector, who is the first respondent in this petition, filed Annexure-I complaint in the Court of the Judicial Magistrate of the First class, Ottapalam alleging commission of offences under the Act. According to the first respondent, the third accused, who is the petitioner, is the depot manager from whom the second accused obtained the adulterated chiclets. There is also statement in the complaint that the District Food Inspector, Palakkad informed the first respondent that there was no nomination under the Act for the Company. First respondent gave the complaint to the Magistrate on 31st January, 1998 and the Magistrate returned the same to the Food inspector with a direction to resubmit the same on or before 28th February, 1998. The complaint was returned by the Magistrate by sending the same by registered post with acknowledgment due. The Magistrate, while returning the complaint, said that Document No. 9 in the List of Documents was not produced and directed the complainant to produce the property separately and produce a copy of nomination regarding Accused Nos. 2 and 3. On 16th February, 1998 the complaint was resubmitted in the Court of the Magistrate clarifying that accused No. 2 is the distributor for Accused No. 3, the Depot Manager of the company from whom Accused No. 2 and Accused No. 1 got the adulterated chiclets. The complainant also stated that the Company had not made any nomination before the district Food Inspector, Palakkad. The Magistrate again return the complaint to the Food Inspector and on 26th February, 1998 the complaint was resubmitted with necessary corrections. At that time the complainant clarified that the third accused was not the Manager or Director of the Company but was only a stockist and distributor of food items of the Company. The submission made by the learned counsel appearing for the petitioner is that notice under Section 13 (2) of the Act was issued by the Food Inspector even before resubmitting the complaint on 26-2-1998 and that is violation of the mandatory provision in Section 13 (2) of the Act. What the counsel would submit is that since the complaint filed in Court on 31st january, 1998 was returned to the Food Inspector and it was finally resubmitted only on 26-2-1998 it cannot be said that the notice issued under Section 13 (2)of the Act was after institution of the prosecution. Section 13 (2) of the Act says that on receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14a, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, informing such person or persons that if they want, they may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory. It is clear from the above provision that the copy of the report of the result of analysis has to be sent after the institution of prosecution. The purpose for which the copy of the result of the report of analysis is sent is for giving an opportunity to the person from whom the sample of article of food was taken to get the sample of article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory. It is also necessary that the person to whom the copy of report of result of analysis is sent must be informed that such person, if he so desires, may make an application to the Court within a period of ten days from the date of receipt of copy of the report to get the sample of the article of food kept by the local (Health) Authority analyzed by the Central Food Laboratory.
(3.) BEFORE the amendment of the Act, what the section said was that three samples had to be taken by the Food Inspector and one sample had to be sent to the Public Analyst, another sample had to be given to the accused and the other sample had be kept by the Food Inspector for purpose of depositing the same in Court. After getting the report of chemical analysis the prosecution had to be launched against the accused, if the report of chemical analysis said that the food article was adulterated. Section 13 as it stood before amendment, gave a right to the accused to make an application in Court with a prayer to send the sample which was kept with him to the Central Food laboratory and the Court, after complying with all formalities with regard to the condition of the sample and the seal, had to send the same to the Central food Laboratory. The report of Central Food Laboratory would override the report of the Public Analyst. After the amendment, the Food Inspector need not give a sample to the accused. One sample has to be sent to the Public Analyst for chemical analysis and the remaining tow samples have to be sent to the local (Health) Authority. As a result of the amendment, the two samples have to be kept by the Local (Health) Authority and hence there is the necessity of giving a notice at the time of sending the copy of the report of Public Analyst informing the accused of his right to get one of the samples kept by the Local (Health) Authority examined in the Central Food Laboratory and the Legislature made provision for that in the Act. According to the petitioner, the copy of the report of the Public Analyst was dispatched to him on 7th February 1998 whereas the complaint was filed only on 26th February 1998. The submission made by the learned counsel appearing for the petitioner is that there is breach of the mandatory provision contained in Section 13 (2) of the Act inasmuch as the copy of the report of analysis was forwarded to the petitioner prior to the institution of the prosecution against the clear mandate in Section 13 (2) that the copy of the report of the analysis has to be sent after the institution of prosecution. The submission is that even though the complaint was given in court at the first instance on 31st January 1998 since the complaint was returned to the Food Inspector for curing defects it cannot be said that the prosecution was instituted on 31st January 1998. It was on 26th February, 1998 that the complaint as resubmitted after curing the defects and according to the petitioner, only on 26th February, 1998 the prosecution was institution and since the mandatory provision in Section 13 (2) is that the copy of the report of the result of analysis has to be sent after institution of prosecution there is clear violation of the mandatory provision and for that reason alone the proceedings have to be quashed.;


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