Decided on March 19,2003

K.K.NARAYANAN Respondents


J.B.Koshy, J. - (1.) This appeal when came up for hearing before the learned Single Judge (R.Basant.J.), his Lordship referred the matter to the Division Bench for answering the following questions: (i) Whether Section 10(7) of the Prevention of Food Adulteration Act is mandatory. (ii) Whether the fact that one of the witnesses called by the Food Inspector to witness the sampling is an employee of the vendor would vitiate the proceedings against the vendor or the warrantor on the ground that the person called to witness the sampling is not an independent witness as insisted by Section 10(7).
(2.) The first accused sold peas dhal to the Food Inspector on 28.11.1987. At the time of sampling, PW2 an employee of A1 was called as witness and he signed the mahazar and other documents. The sample, on analysis by the Local (Health) Authority, was found to be adulterated (Ext.P12). The sample contained 14.6% of inedible grain (Kesari dhall), consumption of which is injurious to health. Sale of a mixture of Kesari dhal (Lathyrus Sativus) is prohibited under Rule 44 (e) of the Prevention of Food Adulteration Rules, 1955. On second analysis by the Central Food Laboratory also it was found to be adulterated by Kesari dhal by 12.22% (Ext.P3). At the time of taking sample itself Ext.D1 bill was produced to show that the first accused had purchased the above from the second accused, a wholesale dealer. Therefore, charge sheet was issued on 18.9.1989 stating that as per Ext.P12 report peas dhal contained Kesari dhal and it is violative of Section 2(1a) (a) and Rule 44 A(e) of the Prevention of Food Adulteration Rules, 1955.
(3.) The main ground taken by the accused in the above case was that Section 10(7) of the P.F.A Act is mandatory and PW2 was not an independent witness. In view of the violation of the mandatory provisions of the Act, it is contended that they are entitled to be Acquitted. The first accused further contended that he is entitled to the benefit of Section 19 (2) as he has purchased the above under warranty from the second accused. According to him, he purchased a bag containing 750 kg. Of peas dhal and at the time of sale to the Food Inspector the bag contained 50 to 55 kgs. of peas dhal and he is entitled to protection under Section 19(2). The contention of the second accused was that he was not a licenced dealer in the sense that licence was not produced. Secondly, it was contended that there is no evidence to show that A1 has properly stored and kept the food articles in the same state as he has purchased (Section 19(2)(b)).;

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