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Subbayyan Muthukomaran Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtKerala High Court
Decided On
Case NumberCalendar Revn. Nos. 5 and 24 of 1967 and Criminal Revn. Petn. 670 of 1966
Judge
Reported in1968CriLJ1554
ActsPrevention of Food Adulteration Act, 1954 - Sections 2, 7, 11(1), 11(3), 13(5), 16(1) and 20(1); General Clauses Act, 1897 - Sections 15; Prevention of Food Adulteration Rules, 1955 - Rules 7 and 14 to 22; Evidence Act, 1872 - Sections 114; Code of Criminal Procedure (CrPC) , 1898 - Sections 32, 423 and 439
AppellantSubbayyan Muthukomaran
RespondentState of Kerala and ors.
Appellant Advocate S. Easwara Iyer,; L. Gopalakrishnan Poti and; Thomas Geo
Respondent Advocate State Prosecutor (for No. 2) in Cal. Revn. No. 5 of 1967,; State Prosecutor (for No. 1) and;Adv. Gene
Cases ReferredState of Bombay v. Parshottam Kanaiyalal
Excerpt:
.....bad to consider each particular case and determine whether a prosecution should be launched or not, the section would become altogether unworkable having regard to the large number of offences that are committed. and that very object would be defeated by the interpretation sought to be placed on the clause'.this decision was followed by a division bench of the high court of mysore in state of mysore v. if his entrustment to panchayat officer for sending these things to the public analyst is bad, it would be also bad if he entrusted them with his peon to go to the post office and register them for despatch. 1, as well as from part of the sample delivered to the second accused. p-9 would clearly prove that it is part of the sample purchased from the second accused that was sent for..........in calendar revision no. 5 of 1967, the accused, a provision merchant, was charged by the food inspector of nedumangad panchayat in the court of the additional first class magistrate, nedumangad, in c. c. no. 72 of 1966 for an offence under section 16(1)(a)(i) read with section 7 of the act. the complaint against him was that, on 5-9-1965 he sold adulterated compounded asatoetida to the food inspector. the accused was found guilty of the said offence; and he was sentenced by the learned magistrate to suffer simple imprisonment for 6 months and to pay a fine of rs. 1000.the accused filed criminal appeal no. 106 of 1966 in the sessions court of trivandrum; and the learned 1st additional sessions judge, by his judgment dated 15th february 1967, allowed the appeal and acquitted the.....
Judgment:

Isaac, J.

1. These three cases arise under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). They raise common questions; and hence they were heard jointly, and are being disposed of by this single judgment.

2. In Calendar Revision No. 5 of 1967, the accused, a provision merchant, was charged by the Food Inspector of Nedumangad Panchayat in the Court of the Additional First Class Magistrate, Nedumangad, in C. C. No. 72 of 1966 for an offence under Section 16(1)(a)(i) read with Section 7 of the Act. The complaint against him was that, on 5-9-1965 he sold adulterated compounded asatoetida to the Food Inspector. The accused was found guilty of the said offence; and he was sentenced by the learned Magistrate to suffer simple imprisonment for 6 months and to pay a fine of Rs. 1000.

The accused filed Criminal Appeal No. 106 of 1966 in the Sessions Court of Trivandrum; and the learned 1st Additional Sessions Judge, by his judgment dated 15th February 1967, allowed the appeal and acquitted the accused on the ground that what was sold to the Food Inspector was 'compounded misky asafoetida' and not 'compounded asafoetida' and that standards have been prescribed only for the latter, and not for the former. Our learned brother Velu Pillai J., issued notice in Calendar Revision on 8-3-1967, and that is how this matter has come before this Court. The case was first heard by Sadasivan J., who considered that the question whether compounded misky asafoetida is the same as compounded asafoetida is an important one, not covered by any authority; and he adjourned the case for being heard and decided by a Division Bench.

3. Criminal Revision Petition No. 670 of 1966 and Calendar Revision No. 24 of 1967 arise out of a complaint which the Food Inspector, Chavara Panchayat, filed in the Court of the Additional 1st Class Magistrate, Karunagupally as C. C. No. 18 of 1966, charging the two accused persons in that case with the offence under Section 16(1)(a)(i) of the Act read with Section 7. The accusation against them was that, on 22-9-1965, the second accused who was in charge of the grocery shop run by the first accused, sold adulterated compounded asafoetida to the Food Inspector. Both of them were found guilty by the learned Magistrate, who took a lenient view of the offence, and sentenced each of them to pay a fine of Rs. 500.

They filed Criminal Appeal No. 32 of 1966 in the Sessions Court of Quilon. The learned Additional Sessions Judge, who heard the appeal, dismissed it, and confirmed the conviction and sentence. He also pointed out that the minimum sentence provided for the offence was imprisonment for 6 months and a fine of Rs. 1000, and that the trial Court acted illegally in awarding a lesser sentence. He, however, dropped the matter there, observing that he had no power to enhance the sentence. The accused led Criminal Revision Petition No. 670 of 1966 against their conviction and sentence. When the wise came before our learned brother Sadasivan J., it was contended on behalf of the accused that the authorisation of the Food Inspector by the State Government under Section 20(1) of the Act to institute the prosecution was granted before that Section was amended by Act 49 of 1964, and that such an authorisation was not sufficient to institute the complaint. Our learned brother considered it as important question; and he adjourned the case for being heard by a Division Bench. On hearing the learned counsel for the accused, we took the view that the accused were rightly convicted; we, therefore, ordered notice to show cause why the sentence awarded to them should not be enhanced, as they were below the minimum punishment fixed under the Act. Accordingly, Calendar Revision No. 24 of 196(sic), was taken up against the accused.

4. We shall now consider the various points raised by the learned counsel in these cases. The contention that 'compounded misky asafoetida' is not 'compounded asafoetida' was raised before us also by the learned counsel for the accused in Criminal Revision Petition No. 670 of 1966. In our view, there is no substance in this contention. None of the learned counsel was able to tell us what 'misky' means, and whether such a word occurs in any language. We have not also been able to trace this word to any language It is, therefore, apparently a word coined by the manufacturer as a trade mark for the article. The use of such a word along with the name of the article cannot make any difference in the article. It can only denote or identify a particular manufacture. Compounded misky asatoetida does not cease to be, or become something different from, compounded asatoetida, by addition of the word misky to it. It appears that what is sold as compounded misky asafoetida is a well known brand of compounded asafoctida; and when the Food Inspector asked for and purchased compounded misky asafoetida, it only means that he purchased that particular brand of the compounded asafoetida, which the accused were storing and selling.

5. We shall now consider the objection raised to the maintainability of the prosecution instituted in Criminal Revision Petition No. 670 of 1966, based on Section 20 of the Act. Sub-section (1) of this Section alone is relevant; and before it was amended by the Prevention of Food Adulteration (Amendment) Act, 49 of 1964 it read as follows :--

'20. (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the State Government or a local authority or a person authorised in this behalf by the State Government or local authority :

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the Public Analyst along with the complaint'.

Ext. P-2 is a notification No. 39559/59/ H.L.(B) 4 dated 7-9-1959 issued by the Government of Kerala under Section 20(1) of the Act; and it reads :--

'In exercise of the powers conferred by Sub-section (1) of Section 20 of the Prevention of Food Adulteration Act 1954 (Central Act 37 of 1954) and in supersession of all previous notifications on the subject, the Government of Kerala hereby authorises the Food Inspectors appointed under the said Act to institute prosecutions for offences under the Act'

It was contended that the authorisation under Section 20(1) of the Act must be one in favour of a particular person, and that Ext. P-2, being only a general authorisation, does not satisfy the requirement of the Section. It was also submitted that it was evident from Section 20(1) of the Act, as amended by Act 49 of 1964, that the above is the correct position.

By Act 49 of 1964, the following was substituted for Section 20(1) :

'20 (1). No prosecution for an offence under this Act snail be instituted except by, or with the written consent of the Central Government or the State Government or a local authority of a person authorised in this behalf, by a general or special order, by the Central Government or the State Government or a local authority.

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the Public Analyst along with the complaint'.

The substituted provision introduced the words 'by general or special order' into the Section, according to which it is enough if the authorisation or the Food Inspector to institute a complaint is by a general or special order. It was submitted that the position was the contrary, before the above amendment, and that Ext. P-2 being an authorisation given before the amendment, would not fall under the amended Section and was, therefore, invalid.

6. The question whether a general authorisation was valid under Section 20(1) of the Act, before its amendment by Act 49 of 1964, came up for consideration before our learned brother Raman Nayar J., in Municipal Health Officer and Food Inspector, Kozhikode v. Arthala Tea Estate Co., AIR 1961 Ker 84, and the learned Judge said :

'It is obvious that the very object of the second clause is to enable the State Government and local authorities to appoint some other person to exercise on their behalf the discretion vested in them by the first clause since, if the State Government or the local authorities bad to consider each particular case and determine whether a prosecution should be launched or not, the section would become altogether unworkable having regard to the large number of offences that are committed. And that very object would be defeated by the interpretation sought to be placed on the clause'.

This decision was followed by a Division Bench of the High Court of Mysore in State of Mysore v. Danjaya, AIR 1963 Mys 157. Dealing with a similar statutory provision, a Full Bench of six Judges of the High Court of Allahabad, in Powell v. Municipal Board of Mussoorie, (1900) ILR 22 All 123 (FB), said:

'It is clear that the section was enacted with a two-fold purpose. The object was, in the first place, to exclude prosecutions for what may be called municipal offences from the interference of irresponsible persons, and to secure that such prosecutions should have the guarantee of the responsibility of the Municipal Board. A further object, in my opinion, was to relieve the Municipal Board of the necessity of itself dealing with each individual case of prosecution for a municipal offence, and to enable it to assign that particular function to some other person or persons'.

We respectfully agree with the view expressed in the above decisions. Section 15 of the General Clauses Act, 1897, places the matter almost beyond controversy. This Section reads :

'Where, by any Central Act or Regulation, a power to appoint any person to fill any office or execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be made either by name or by virtue of office'.

We are unable to see why an authorisation to institute prosecutions under Section 20(1) of the Act cannot be given by the authorities empowered thereunder generally in favour of persons holding a particular office. A general authority to act in all cases or in a class of cases ii a familiar form of authorisation to an agent or an officer. Reliance was made by the learned counsel for the accused on certain observations contained in the decision of the Supreme Court in State of Bombay v. Parshottam Kanaiyalal, AIR 1961 SC I. In that case, the question before the Court was whether under Section 20(1) of the Act, the written consent to institute a prosecution should be in favour of a named person. The Court said that this was not one of the requirements of the Section. The observations made in that context in the above decision cannot be of any help in this case.

7. It was rightly conceded by the learned counsel for the accused that Section 20(1), as it now stands, does not require a special authorisation or an authorisation of any officer by name. It was not disputed that the authorisation, Ext. P-2 in this case, satisfies the requirements of the amended Section. The contention was that Ext. P-2 was issued before the amendment, and that it was, therefore, invalid. In our opinion, this is a wrong way of looking at the matter. What stands in the way of a Court taking cognizance of an offence under the Act is Section 20(1); and what the Court has, therefore, to see is only whether the prosecution has been instituted by any one of the authorities or persons mentioned in the said Section. In this case, the complaint is admittedly by such a person. When was the authorisation given in favour of the complainant, or under what provision of law was it given is not a relevant consideration under the Section. In any view of the matter, the objection raised by the learned counsel to the maintainability of the prosecution cannot stand.

8. Various other contentions were also raised by the learned counsel for the accused in these cases. One was that the person who analysed the article of food was not a person appointed as a Public Analyst under the Act. The person, who analysed the samples in these cases is one Shri P. Janardana Ayar, Ext. P-2 in Criminal Revision Petition No. 670 of 1966 is a notification dated 28-1-1963 issued by the Government of Kerala, appointing him as a Public Analyst under the Act. This contention has therefore, no substance.

The next contention was that the Government have not declared by notification under Section 20(1) 'local areas' for the purposes of the Act, that a Food Inspector can be appointed under Section 9(1) of the Act only for such local areas as may be assigned to them, and that, therefore, the appointments of the complainants in these cases as Food Inspectors are invalid. This is again a contention which should not have been advanced, in view of the fact that the Government have actually issued a notification No. H L. 5-26137/54/D11 dated 14th July 1955, declaring all Panchayat areas as local areas. This notification is at page 291 of the Statutory Rules and Notifications of Travancore-Cochin, 1955; and it reads :

'Under Section 2(vii) of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954) Government are pleased to declair the following areas as 'local areas' for the purposes of the said Act.

(1) The area comprised within the City of Trivandrum.

(2) All Municipal areas.

(3) All Panchayat areas.'

9. It was also contended by the learned counsel for the accused that it was not enough that the Article sold is an article of food but it must have been sold as an article of food. It was submitted that there was evidence in this case that compounded asafoetida can be used as a drug, and that there was no evidence that the sales were made as articles of food. These are all contentions contrary to the clear provisions of the Act. That compounded asafoetida is 'food' as defined in Section 2(v) of the Act admits of no doubt; and it was also not disputed. Then the only question is whether the accused sold it, and if they did, they are guilty under Section 16(1)(a)(i) of the Act, read with Section 7.

10. Some special contentions were raised by the learned counsel who appeared for the accused in Criminal Revision Petition No. 670 of 1966, after the issue of notice for enhancing their punishment. In the first place, the learned counsel contended that according to the evidence of the Food Inspector, the sample for analysis, and a copy of the memorandum which is to accompany the sample and the specimen impression of the seal, used to seal the packet of the sample were entrusted by him to the Panchayat Officer for being sent to the Public Analyst, that under the relevant provisions of the ACt and the rules made thereunder, the Food inspector was bound to send them direct and that therefore, the result of the chemical malysis was inadmissible.

The relevant provisions of the Act are Sub-sections (1) and (3) of Section 11; and they read :-

'11 Procedure to be followed by Food Inspectors.

(1) When a Food Inspector takes a sample of food for analysis, he shall --

(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample;

(b) except in special cases provided by rules under this Act, separate the samples then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits:

(c) (i) deliver one of the parts to the person from whom the sample has been taken; and

(ii) send another part for analysis to the Public Analyst; and

(iii) retain the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under Sub-section (3) of Section 13, as the case may be.

(2) .....

(3) When a sample of any article of food is taken under Sub-section (1) or Subsection (2) of Section 10, the Food Inspector shall send a sample of it in accordance with the rules prescribed for sampling to the Public Analyst for the local area concerned'.

Rules 14 to 22 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) deal with sealing, fastening and despatch of samples. Rules 17 and 18 read as follows :

'17. Containers of samples how to be sent to the Public Analyst -- The container of samples for analysis shall be sent to the Public Analyst by registered post or railway parcel or air freight, or by hand in a sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the Public Analyst.

18. Memorandum and impression of seal to be sent separately by post. A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by post'.

The Food Inspector deposed that he purchased from the second accused 19 packets of compounded misky asafoetida, weighing 600 grams, after giving notice to the seller in Form VI, that he divided it into three parts, put each part into a paper packet, fastened them with labels and affixed seals thereto, and that he gave one part to the second accused, produced the second part in Court, and forwarded the third part to the Public Analyst alone with a memorandum in Form VII, and a specimen impression of the seal used. He further stated that he entrusted the part of the sample to be sent to the Public Analyst and the memorandum and the specimen impression of the seal to the Panchayat Officer, who sent them by registered post Ext. P-8 is the office copy of the memorandum; and Ext. P-9 is the report of the Public Analyst. The contention that, unless these things were sent by the Fond Inspector direct to the Public Analyst, the whole action taken by him would be vitiated, is rather a desperate one. If his entrustment to Panchayat Officer for sending these things to the Public Analyst is bad, it would be also bad if he entrusted them with his peon to go to the Post Office and register them for despatch. In fact, he submitted that it would be so; and that the Food Inspector must himself go to the Post Office and register these filings for despatch. We are really unable to see am substance in these submissions.

After the article is registered, it is handled by the employees of the Postal Department until it is delivered in the office of the Public Analyst. After that, it is handled by the employees in the office of the Public Analyst who may not himself analyse it, but cause it to be analysed. The whole safety in the procedure lies in preparing samples, packing them and sealing them in the presence of the accused and in giving one part of the sample to the accused and sending another part to the Court, so that these two parts can be got analysed subsequently, if the acceptability of the Public Analyst's report is questioned.

11. The learned counsel also contended that there was no evidence in this case that a sample was sent to the Public Analyst along with the prescribed memorandum and a specimen impression of the seal. This is another contention devoid of any substance Ext. P-9, the report of the Public Analyst, is in Form III, which is prescribed under the rules. It states, among other things that the Public Analyst received from the Food Inspector a sample of compounded misky asafoetida marked C.2/65 for analysis, properly sealed and packed, and that he found the seal intact and unbroken. It is this sample which he analysed. Ext. P-8, the copy of the memorandum in Form VII shows that the serial number of the sample sent for analysis is No. C.2/65. Whether this is part of the sample purchased from the accused can be verified also from the part of the sample produced in the Court and marked as M.O. 1, as well as from part of the sample delivered to the second accused. Therefore, Ext. P-9 would clearly prove that it is part of the sample purchased from the second accused that was sent for analysis to the Public Analyst, and which he caused to be analysed. It was conceded by his learned counsel that, under Section 13(5) of the Act, Ext. P-9 can be used as evidence of the facts stated therein, without examining the Public Analyst to prove it. But it was contended that Ext. P-9 stated only that the seal was found intact and unbroken, that it does not state that the Public Analyst compared the specimen impression of the seal with the seal on the packet of the sample, and hence the report cannot be acted upon.

Now it is a well-established proposition of law that official acts would be presumed to have been regularly performed. Rule 7 of the rules prescribes the duties of the Public Analyst; and the rule reads;

'7. Duties of Public Analyst.--(1) On receipt of a package containing a sample for analysis from Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the condition of the snals thereon,

(2) The Public Analyst shall cause to be analysed such samples of food as may be sent to him by the Food Inspector or by any other person under the Act.

(3) After the analysis has been completed he shall forthwith supply to the person concerned a report in Form III of the result of such analysis '

It will, accordingly, be presumed that a Public Analyst, who caused a sample sent by a Food Inspector to be analysed and furnished a report in Form III, compared the seal on the container and the outer cover with the specimen impression received by him, before the analysis was made. If on comparison he found that the seal was not intact, he would not have caused the sample to be analysed, but he would have returned it to the Food Inspector reporting the matter. Ext. P-9 states that the seal was found intact and unbroken.

It was contended that it dues not say that the seal on the container and the outer cover was the same as the specimen impression, and that, therefore, the report was efective. Now the report is in Form III, which is prescribed under Rule 7. It has, therefore, to be read and understood in the light of the provisions contained in the said rule. When the Public Analyst is required by the rule to compare the seal on the container and the outer cover with the specimen impression, and note the condition of the seal thereon, a certification by him that he found the seal intact means that, on comparison, he found the seal on the container and the outer cover untouched and unimpaired. The objection taken to the prescribed form of the Public Analyst's report under Rule 7 of the rules cannot, therefore, be sustained.

12. Lastly, a contention was raised by the learned counsel that the accused in these cases were protected by Section 19(2) of the Act, which reads as follows:--

'(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves--

(a) that be purchased the article of food--

(i) in a case where licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor, or dealer;

(ii) in any other case, from any manufacturer, distributor, or dealer, with a written warranty in the prescribed form; and

(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.'

For the purposes of invoking the above provision, reliance was placed on Rule 12-A of the rules. This rule reads:

'Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty, in Form VI-A:

Provided that no warranty in such form shall be necessary if the label on the article of food for the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same (sic) nature, substance and quality as demanded by the vendor.

Explanation. -- The term 'trader' shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer.'

M.O. II is the label on the carton in which compounded misky asatoetida' is sold. It contains the following matter printed:

'Foremost Best Quality Compounded

Misky Asafoefida.'

It is contended that the above matter amounts to a warranty 'that the food contained in the packet is the same in nature. substance and quality as demanded by the vendor' within the meaning of the proviso in Rule 12-A. The argument is hardly Statable. The words 'Foremost Best Quality' do not indicate anything about 'the nature substance or quality' of the article. As it is, it is a false representation about an adulterated article of food.

13. It was not disputed before us that, it the prosecution has succeeded to establish the charge against the accused in these cases, they are guilty of the offence under Section 16(1)(a)(i) ot the Act read with Section (sic) and that the minimum punishment provided for the said offence is imprisonment for 6 months and a fine of Rs 1,000. It was however, contended by the learned counsel in Criminal Revision Petition No 670 of 1966 that this was not a fit case for enhancing the punishment. We are unable to accede to this argument. If an inferior Court has imposed a sentence below the minimum prescribed by the law, it is the duty of this Court to correct the error Otherwise, it is not only that an accused person would escape without adequate, punishment, which would cause discrimination between persons found guilty of the same offence, but it would also lead to create a feeling in the subordinate Courts that they can with impunity disregard the statutory provision, and impose a punishment below the minimum prescribed for an offence. We do not know what persuaded the learned Magistrate to disregard the imperative provision contained in Section 16(1) of the Act and impose on the accused a much lesser penalty than the minimum fixed under that section.

14. In the result, we set aside the acquittal of the accused by the SessionsCourt of Trivandrum in Criminal AppealNo. 106 of 1966; and confirm the conviction and the sentence passed against him by the Additional First Class Magistrate,Nedumangad in C.C No. 72 ot 1966. Wealso confirm the conviction of the two accused in C.C. No. 18 of 1966 on the fileof the Additional First-Class Magistrate,Karunagapally, for the offence under Section 16(1)(a)(i) of the Act read withSection 7 thereof; and each of the accusedin the said case is sentenced to undergosimple imprisonment for six months, andalso to pay a fine of Rs. 1,000 each, failing which to undergo simple imprisonmentfor a further period of two months each.Accordingly, the notices issued in theCalendar Revision Cases are made absolute, and the Criminal Revision Petition isdismissed.


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