V P NARAYANAN NAIR Vs. FOOD INSPECTOR
LAWS(KER)-2003-3-2
HIGH COURT OF KERALA
Decided on March 05,2003

V.P.NARAYANAN NAIR Appellant
VERSUS
FOOD INSPECTOR Respondents

JUDGEMENT

Mr.R.Basant, J. - (1.) Can the Food Inspector, or is he obliged to, add a preservative to a sample of food grain purchased by him notwithstanding the absence of specification of any such preservative under the rules? This is the question referred to us by the learned Single Judge (Mr.R.Basant, J. in this case. According to the learned Single Judge, Full Bench (5 Member Bench) in Mathukutty v. State of Kerala (1987(2) KLT 867 did not consider the effect of Rule 19 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to The Act ). Before going into the contentions raised, we may refer to the facts of this case.
(2.) The first accused, as commission agent of the Chinthamani Stores, of which the second accused is the Manger/licencee, had sold to the food Inspector 750 grams of Bengalgram for analysis at 1 P.M. on 29.3.1989. The said sample on analysis conducted on 4.5.1989 was found to be adulterated by the Public Analyst initially and the Director in the Central Food Laboratory later on 26.7.1989. Ext.P15 is the report of the Public Analyst and Ext.P17 is the report of the Director of Central Food Laboratory. According to Ext.P17 report the sample does not conform to be standards of food grains as per Prevention of Food Adulteration Rules. Therefore, he was charged under Section 2(1-a)(a), f, 7(1) and 16(1)(a)(i) of the Act. He was convicted under Section 21(a)f of the Act. We are extracting a chart showing the contents of Ext.P17 report of the Central Food Laboratory and the prescribed standard as per P.F.A. Rules. Parameter As per Ext.P15 Public Analyst report As per Ext.P17 report of the C.F.L.Prescribed standard Extraneous Organic matter Absent 0.13%Not exceeding 3% Extraneous Inorganic matter (Lumps of Earth and Stones) 0.33% by weight 0.24% Not exceeding 1% Insect damaged grains (weevilled grains) 46.72% by count Nil 10% Damaged grains Absent 74.9 5% Rodent hair and excreta Absent Nil 5 pieces per kg. Moisture 6%9.22%16% Uric acid 384 parts per million 800.010 mgs per 100 gram Test for colour AbsentCoal tar dye Absent Appearance Not specified Insect damaged grains containing abundant living and dead insects Now it is well settled rule that Ext.P15 report stands superseded by Ext.P17 as once the report of the Public Analyst is superseded by the report of the Director, Central Food Laboratory, the first report of the Public analyst need not be looked into and the court cannot legitimately make any comparison or draw any inference in view of the mandate of sub-sections 3 and 5 of Section 13 of the Prevention of Food Adulteration Act and the matter is now settled by the Full Bench in the decision reported in 1987(2) KLT 867 (supra). Section 13(2) of the Act confers valuable right on the accused to get the sample tested in the Central food Laboratory and sample shall be kept fit for analysis also till that time. The contention that even if food is insect infested or contains in insects, prosecution will not lie as there is no evidence to show that it is unfit for human consumption is untenable because food articles were found to be not according to the prescribed standard. Once it is found that the food article is not having the prescribed minimum standard of purity, it will be deemed to be adulterated whether it is fit for human consumption or not. Section 2(1a) and (f) are as follows: 2. (1a) adulterated an article of food shall be deemed to be adulterated- (a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be; (f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption; The words in section 2(f) or is otherwise unfit for human consumption is a residuary provision which would apply to a case not covered by or falling squarely within other clauses. Whether it is again unfit for human consumption need not be looked into in the food article is otherwise adulterated. The matter is settled in view of the decision in Municipal corporation of Delhi v. Tek Chand Bhatia, 1980 SCC (Cri) 87. The above view was followed in State (Delhi Administration) v. Puran Mal, 1985 SCC (Cri) 289. Therefore, if the sample taken is not according to the standard prescribed under the Rules, it is deemed as adulterated .
(3.) The question is whether at the time when the sample was taken it was adulterated or had the prescribed standard as per Rules. If it was not adulterated at that time, accused cannot be found guilty under the Act. It is the duty of the Food Inspector to see that the quality of the food article, is not deteriorated after the sampling and what is analysed in the Laboratory is the food article of the same quality as at the time of purchase by the Food Inspector for the purpose of sampling. To achieve this purpose statute has provided certain safeguards. Rule 4 and 9 indicates that samples should be sent expeditiously for analysis. Rules 14 to 31 (Part V) deals with sealing, fastening and dispatch of samples. Rules 14 to 17 are held to be mandatory. The words used in the above rule is shall . The purpose of those rules are for ensuring that food articles at the time of purchasing samples kept in the same conditions at the time of analysis also without further decomposition or deteriorating in its quality. Another Rule enacted for this purpose is Rule 19. Rule 19 reads as follows: 19. Addition or preservatives to samples- Any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis . Here admittedly nor preservative was added. The contention of the revision petitioner is that since no preservative was added, there is a violation of Rule 19. According to him, Rule 19 even though used the word may it is mandatory and may should be read as shall . In certain cases the word may used can be interpreted as must . But a reading of this section would show that Rule 19 is only directory and not mandatory. When Rules 14 to 18 of the said Chapter uses the word shall . Rule 19 purposefully uses the word may . But it puts an obligation on the food Inspector to add preservative and if it is not added, it is for the Food Inspector to prove that non addition of preservative has not affected the quality of sample at the time of analysis. It may differ on the facts of each case. The quantity or the type of preservative to be used when food grains are sampled are not specified in the rules. In such circumstances, it is for the Public Analyst to add such preservative so that sample should not be decomposed. It is the duty of the Food Inspector to maintain and preserve the samples in a good and suitable conditions till analysis. For that purpose, if the preservative is not specified to be added in the particular food article, the Food Inspector can use such permissible preservative so as to prevent further deterioration of the food article.;


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