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State of Kerala Vs. N. Soman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1984CriLJ567
AppellantState of Kerala
RespondentN. Soman
Cases ReferredIn Food Inspector v. Sadasivan
Excerpt:
.....of the case in the intimation or that the failure to do so would amount to infraction of section 13(2) of the act. failure to send a copy of the report of the public analyst itself......was prepared and got signed by the accused and the witnesses. one of the sample was sent to the public analyst for analysis and the rest sent to the local health authority. the public analyst in ext. p-7 report stated that the sample contained 78.2% cumin seeds. 13.5% of non-edible seeds and 8.3% of extraneous matter, including dust. stones, lumps of earth, chaff. etc. and therefore the sample did not conform to the standard prescribed for cumin seeds under item a.05.09 of appendix b of the prevention of food adulteration rules (for short the 'rules'). the food inspector laid the complaint against the accused for offences under section 7(i) read with section 16(i)(a) (i) of the prevention of food adulteration act (for short the 'act') and the local health authority concerned.....
Judgment:
ORDER

U.L. Bhat, J.

1. The Food Inspector. Kallara Panchayat in Nedumangad Circle, inspected a provision shop in building No. C-3 1099 (2) adjoining a ration shop, A. R. D. 181 and situated within the limits of Kallara Panchayat, on 29-1-1981 at 1.30 P. m. and proceeded to purchase a sample of cumin seeds exhibited in the shop for sale, in accordance with the provisions of law. The accused sold the sample to the Food Inspector and after dealing with the sample in accordance with law, Ext. P-4 mahazar was prepared and got signed by the accused and the witnesses. One of the sample was sent to the Public Analyst for analysis and the rest sent to the Local Health Authority. The Public Analyst in Ext. P-7 report stated that the sample contained 78.2% cumin seeds. 13.5% of non-edible seeds and 8.3% of extraneous matter, including dust. stones, lumps of earth, chaff. etc. and therefore the sample did not conform to the standard prescribed for cumin seeds under item A.05.09 of Appendix B of the Prevention of Food Adulteration Rules (for short the 'Rules'). The Food Inspector laid the complaint against the accused for offences under Section 7(i) read with Section 16(i)(a) (i) of the Prevention of Food Adulteration Act (for short the 'Act') and the local health authority concerned (hereinafter referred to as 'L. H. A.' for brevity) sent a copy of the report with intimation under Section 13(2) of the Act. Ext. P-8. to the accused, for the receipt of which the postal acknowledgment is Ext. P-9. In due course the trial court framed charges against the accused as aforesaid and he pleaded not guilty. Prosecution examined four witnesses and marked Exts. P-1 to P-10 series. On behalf of the defence two witnesses were examined. Overruling the contentions of the accused, the trial court convicted him for the offence alleged and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and in default to suffer rigorous imprisonment for three months. In Criminal Appeal No. 260 of 1981 preferred by the accused, the Sessions Court, Trivandrum acquitted him on the ground of violation of Rule 18 of the rules.

2. On receipt of the Calendar by this Court. it was felt that the acquittal was contrary to law and therefore notice was issued to both sides informing them that the matter is being taken up in Calendar Revision. The prosecutor as well as the counsel for the accused have been heard.

3. There can be no doubt about the competency of the Food Inspector, P. W. 1 to take samples and to lay the complaint and the same is proved by P. W. 1 read in the light of Ext. P-l notification. There could also be no doubt that the sample sent by the Food Inspector to the public Analyst was caused to be analysed by the Public Analyst who issued Ext. P-7 report. Ext. P-7 report indicates that the sample did not conform to the standard prescribed by the rules. Therefore the sample must be treated as an adulterated sample within the meaning of Section 2(a)(m) of the Act. The learned Sessions Judge acquitted the accused on the ground that Rule 18 of the Rules was violated.

4. Rule 17 prescribes the manner in which one part of sample is to be despatched to the Public Analyst and the remaining parts of sample to be despatched to the L. H. A. The sample to be sent to the Public Analyst must be accompanied by a Memorandum in. Form No, 7. Two copies of the Memorandum are also to be sent to the L. H. A. Rule 18 requires that copy of the memorandum and the specimen impression of the seal used to seal the racket shall be sent to the Public Analyst separately by registered post or to be delivered to him or to any person authorised by him. The learned Sessions Judge pointed out that evidence of P. W. 1 on this point is not clear and when two views are possible, the benefit of doubt should go to the accused. This is directly contrary to the law as laid down by a Division Bench of this Court in Food Inspector v. Mohan 1979 Ker LT 560 : 1980 Cri LJ 521. Ext. P7 report shows that a copy of the memorandum and the specimen impression of the seal were separately sent by the Food Inspector and the Public Analyst found the same to bear the number mentioned in the Memorandum and the packet properly sealed and fastened with the seal intact and unbroken. These observations of the Public Analyst, are made by him in the discharge of his duties under Rule 7 of the Rules. Ext. P. 5 copy of the Form 7 Memorandum also mentions the sample taken, the number given. the name of the offender and other particulars, besides stating that copy of this memorandum and the specimen impression of the seal used to seal the packet was being separately sent to the Public Analyst. The number of the sample as mentioned in these records tallied with the number mentioned in the mahazar and other documents. These items of evidence clearly show that all the provisions in Rule 18 had been complied with. The fact that the Food Inspector Rave vague evidence about it or did not refer to this aspect of the matter does not take away the value of these items of evidence referred to. It is also significant to note that these items of evidence were not challenged during the cross-examination of P. W. 1. No, attempt was made by the defence to cite the Public Analyst as a witness to challenge the averments contained in his report. The particulars in the report of the Public Analyst in this regard and other evidence referred to can safely be acted upon. The ground on which the acquittal was rested by the learned Sessions Judge cannot. therefore, stand.

5. However. according to the .learned Counsel for the accused, the acquittal can be sustained on certain other grounds. The learned Counsel contended that Ext. P8 intimation sent by the L. H. A. to the accused did not contain the number of the case in which he figured as the accused and therefore, there has been violation of the mandatory provision in Section 13(2) of the Act.

6. Sub-section (1) of Section 13 requires the Public Analyst to deliver in the prescribed form a report to the L.H.A. regarding the result of the analysis. Sub-section (2) states that on receipt of the report indicating that the article of food is adulterated. L. H. A. shall, after institution of the prosecution against the accused forward in the prescribed manner a. copy of the report of the Public Analyst to him informing him that if he so desired he may make an application to the court within a period of 10 days from the date of receipt of the copy of the report to get the sample kept by the L.H.A. analysed by the Central Food Laboratory. The other provisions in Section 13 deal with the manner in which the accused can exercise his rights, and duties of the court in that behalf. Rule 9A of the P. F. A. Rules requires that L. H. A. shall immediately after the institution of the prosecution forward a copy of the report by registered post or by hand to the accused.

7. According to the learned Counsel for the accused, unless the number of the case in which the person figured as accused is mentioned in the intimation, he cannot know in which court he has to submit the application as contemplated in Section 13 of the Act and that would disable him from exercising his valuable right under Section 13 of the Act. Neither Sub-section (2) of Section 13 nor Rule 9A of the Rules requires the L. H. A, to state in the intimation the number of the case in which the person figures as the accused. It is no doubt mandatory for the L. H. A. to send a copy of the report and give an intimation to the accused as contemplated in the section and the rule. But the provisions of the law do not insist that the number of the case must be mentioned therein. Therefore, the failure to mention the number of the case cannot be regarded as a violation of the mandatory provision contained in Section 13(2) of the Act.

8. Learned counsel for the accused relied on certain observation of this Court in Chockingam v. Food Inspector 1981 Ker LT 628 : 1981 Cri LJ 1225. That was a case where L. H. A. while sending the copy of the report to the accused did not inform him that he had a right to apply to the court within ten days from the date of the receipt of that intimation to send one of the samples with L. H. A. to the Central Food Laboratory for analysis. The intimation only invited the attention of the accused to Section 13(2) of the Act. Dealing with this aspect of the case. I stated as follows (at p. 1229 of Cri L. J). :

The L.H.A. did not inform the revision petitioners of their right to move the court to send a sample to the Central Food Laboratory within 10 days from the date of receipt of the information. It only invited their attention to Section 13(2) of the Act. 'To invite their attention to Section 13(2) of the Act' does not amount to informing them about the right which they have under Section 13(2) of the Act. It may be that when an accused received such an information, he may go to a lawyer and consult him and take appropriate steps. It is also possible that he may not seek legal advice at all or may not seek legal advice within ten days. As I read the provisions of Section 13(2) of the Act on reading the information given by the L. H. A. the vendor without anything more and without legal assistance, must be able to realise that he has a valuable right vested in him of moving the court in an appropriate way. The fact that the Legislature has cast such a burden or duty on the L. H. A. of giving information to the vendor necessarily reveals the concern which the Legislature has in this matter. Of course, generally speaking, every person is expected to know the law. But even in the face of such a general principle of law the Legislature has directed that the L.H.A. must give such specific information to the vendor. Hence it is not open to the Prosecution to rely on the general principle that every person is expected to know the law. Failure to inform the vendor of his right to move the court within ten days would amount to non-observance of Section 13(2) of the Act. A statement inviting vendor's attention to Section 13(2) of the Act is no compliance at all, substantially or otherwise, of the provisions of Section 13(2) of the Act. Such a statement does not have the effect of informing him of his right to move the court in ten days. Unless he is so informed he may not be aware of his right and consequently he loses the opportunity of exercising the right.

9. The case referred to above, as stated earlier was a case in which the intimation as required under Section 13(2) of the Act was not given. The L.H.A. was content with inviting accused's attention to Section 13(2) of the Act. That is not what is provided by Section 13(2) of the Act. That did not even amount to substantial compliance of the provision of law. If within ten days from the date of the receipt of the intimation, the accused did not consult a lawyer, the right given to him by law would be ieopardised. But. such a consequence will not result merely because the number of the case is not mentioned in the intimation. The L. II. A. had mentioned in this case the name of the court in which the prosecution is launched aganst the accused herein. Intimation also clearly stated that the accused should apply to the court within ten days of the receipt of the intimation, if he so desires, to send one of the samples to the Central Food Laboratory for analysis. It was open to the accused even without the help of a lawyer to go to that court and file an application. In such circumstances, no court can re.iect such application on the ground that the number of the case is not mentioned in the application. If the accused makes enquiries he can very well come to know the number of the case. Even if he is not able to know the number of the case, he can state in his application that he is not aware of the number of the case. Then. it will be the duty of the court to find out the number and 1reat his application as valid application, As long as the relevant provision of law does not specifically state that the number of the case must find a place in the intimation, the court cannot hold that it is mandatory to mention the number of the case in the intimation under Section 13(2) of the Act. This is not to say that if the L. H. A. is aware of the number of the case. the number of the case need not be stated in the intimation. If the L. H. A. is aware of the number of the case, it is always desirable that the number of the case is' also stated in the intimation under Section 13(2) so that no inconvenience would be caused to the accused in exercising his right under that provision. However, the failure to state the number of the case in the intimation does not amount to the infraction of Section 13(2) of the Act.

10. The court while interpreting provisions of law should not lose sight of practical aspects and realities. There are repeated complaints by Prosecutors and Food Inspectors that in courts of MaRistrat.es, complaints filed by Food Inspectors are not numbered immediately. but are kept ponding for a number of days. This is certainly an undesirable practice. However, such a practice has developed in the course of years. perhaps on account of the pressure of work or with an eye on the statistical picture of the court for a particular month. These reasons are not sufficient to justify such an undesirable practice. Courts of Magistrates would do well to sec that complaints filed by Food Inspectors or others arc taken up for consideration immediately and numbers are assigned to them. The Food Inspector on instituting the prosecution has to inform the L. H. A. about it to enable L. H. A. to give intimation to the accused as required by law. The Food Inspector cannot wait long for the court to assign a number to the case before giving information to the L. H. A. If the court waits for 10 days or two weeks and that happens often, the Food Inspector cannot delay in performing his duty to inform the L. H. A. that he has launched prosecution against the accused and the L. H. A. also cannot wait indefinitely to know the number of the case before sending intimation to the accused in accordance with law. Sometimes, these delays may work against the interests of the accused and therefore in a number of cases it may not be possible for the Food Inspector to inform the L. H. A. about the number of the case or for the L. H. A. to state the number of the case in the intimation to be sent to the accused. It is the application of this reality that caused the Legislature and the rule making authority to refrain from stating that the number of the case must be mentioned in the intimation. That being so the court cannot hold that it is mandatory to mention the number of the case in the intimation to be sent to the accused. however desirable it may be that it should be done.

11. In Food Inspector v. Sadasivan 1981 Cri LJ 181 at p. 183 Ken Kader, J. had occasion to observe as follows:.After having duly received a complaint alleging commission of an offence against a particular person, a magistrate may at once take cognizance of the offence or may keep it pending with him due to various reasons. Suppose after receiving a complaint disclosing commission of an offence against a particular person a magistrate by oversight keeps it on his file for days and takes cognizance only thereafter. it cannot then be said that the complaint or prosecution was instituted only on the date on which the Magistrate took cognizance of the offence or summons was issued to the accused.... It is, therefore, clear from the above that as soon as a complaint as defined in the Criminal P. C. is filed against an accused before a magistrate with a prayer that necessary action be taken against him. it must be deemed that the prosecution or criminal proceedings have been instituted against that accused.

12. The learned Counsel for the accused placed reliance on the observations of this Court in Crl. R. C. No. 9 of 1980 and Crl. Appeal No. 338 of 1979 in support of his contention that it is mandatory to mention the number of the case in the intimation under Section 13(2) of the Act. The former decision is reported in 1981 Ker LT Short Note Page 81 : 1982 Cri LJ NOC 30. In that case a copy of the report of the Public Analyst was sent to the accused but it was not shown that along with the report intimation or communication as contemplated under Section 13(2) of the Act had been sent. The copy of the intimation was not produced before the court. The Food Inspector in his evidence also did not refer to any such communication. Therefore it was held that there was non-compliance with Section 13(2) of the Act. It was argued before the Court that Section 13(2) was only directory. This argument was negatived emphasising the valuable nature of the right conferred by thin provision on the accused, in dealing with this aspect of the case, Janaki Amma, J. made the following observations :.The person from whom the sample is taken will be in a position to exercise the right to have the sample analysed only on receipt; of the information regarding the fact of filing the complaint and the particulars like the court, when it is filed and the number of the case. Therefore the supply of the information mentioned in Section 13(2) of the Act is not an empty formality....

There can be no doubt that the accused will be in a better position to make an application within the time prescribed if he has the particulars like the name of the court where the case is to be filed and the number of the case filed against him. etc. I have already indicated that it is desirable that all these particulars must be mentioned in the intimation. But the learned Judge has not stated that the mandate of Section 13(2) of the Act requires mention of the number of the case in the intimation or that the failure to do so would amount to infraction of Section 13(2) of the Act.

13. In Crl. A. No. 338 of 1979. it was found that the ground suggested by the first appellate court to acquit the accused was not iustified, but the acquittal was sustained on the ground of infraction of Section 13(2) of the Act. The matter was dealt with in the following manner by Kader, J.:.The counsel cited a decision of this Court in Crl. R. C. No. 9/80 reported in 1981 K. L. T. Short Note page 81 : 1982 Cri LJ NOC 30 and it was pointed out that there is no evidence in the case that a copy of the report of the Public Analyst was sent to any of the accused as enjoined under Section 13(2) of the Act and Rule 9A of the Rules framed under the Act. This fact is not disputed by the counsel for the appellant, although he made an attempt to show that P. W. 1 has stated that intimation was sent under Section 13(2). But, admittedly there is no evidence that a copy of the report was sent to any of the accused. It was further pointed out on behalf of the respondents that the intimation purported to have been sent to the accused was quite vague and ineffective and not in any way sufficient to enable the accused to file a petition challenging the correctness of the report of the public Analyst before the court where the case then was pending. Ext, Pll series are said to be copies of intimation sent to the accused. These intimations are dated 15-12-1977. But, they are seen to have been despatched on 14-12-1977. The material particulars of the case are not mentioned in any of these intimations. The number of the case nor the date of the filing of the complaint is mentioned in any of these intimations. Although the name of the court is mentioned, the date of filing of the complaint is shown as 6-12-1977. But it is not now disputed that the complaint was actually filed on 9-12-1977. The charge number also is not mentioned in any of these intimations. The decision relied on by the counsel squarely applies to the facts of this case. The acquittal of the respondents has, therefore to be sustained on this ground.

14. It is significant to note that copy of the report of the Public Analyst was not sent to the accused in the case referred to above. The copy of the intimation produced in court had several suspicious features regardng the mention of the date of the filing of the complaint and other particulars. Failure to send a copy of the report of the Public Analyst itself. in the circumstances, would have been sufficient ground to sustain the acquittal. Suspicious nature of the intimation also added to this factor. The learned Judge. no doubt. referred to the non-mention in the intimation of the number of the case and the date of filing of the complaint. But in the passage extracted above, it is not suggested that it is mandatory on the part of the L. H. A. to state the number of the case or the date of the filing of the complaint in the intimation to be given to the accused. As already pointed out, neither Section 13(2) of the Act nor Rule 9A of the Rules requires the number of the case to be mentioned. I have already indicated that it. may not always be possible to mention the number of the case. In contingencies where the courts delay the numbering of the case, the L.H.A. may not be in a position to wait till the number of the case is made available. Law also does not require mention of the date of the filing of the complaint, though, perhaps, if that date is mentioned it will be easier for the accused to find out the number of the case from the court. In this judgment also it has not been indicated that it is mandatory to mention the number of the case in the intimation to be given to the accused. In these circumstances, the two decisions relied on by the learned Counsel for the accused cannot be taken to have laid down that it is mandatory to mention the case number in the intimation.

15. The accused in this case has no case that on receipt of the intimation he went to the court concerned and filed an application without mentioning the number and that such application was rejected. There is no violation of Section 13(2) of the Act involved in this case. At any rate, no prejudice is caused to the accused in not mentioning the number of the case in the intimation given to him. The learned Counsel took me through the documents and the oral evidence in the case in an attempt to show that there are serious infirmities in the evidence regarding the sampling and, therefore, it cannot be taken that the sampling was done in accordance with law. This aspect of thfs case does not appear to have been properly considered by either of the courts below. The accused has been consistently contending that he had nothing to do with the provision shop and that he is the owner of the adjoining ration shop and has obtained licence for the same as could be seen from the evidence of the Executive Officer of the Panchayat. examined as P. W. 4. Prosecution has no case that the licence of the provision shop stands in the name of the accused. That would mean that the accused had violated also Rule 50 (1) of the Rules in not taking licence in regard to the vending of the various food articles dealt with in the provision shop. But the trial court did not frame charge for sale of food article without licence. There was also evidence of D. W. 2. Headmaster of the local school, who stated that the provision shop belongs to one Babu. The Food Inspector did not care to look at any of the records kept in the shop. No doubt, the Prosecutor relies on the evidence of P. W. 1 to the effect that the relevant records. acknowledgment of the Memorandum. seizure mahazar. etc, were signed by the accused. but this is denied by the accused. It is the evidence of P, W. 1 that at the time of sampling there were a number of consumers present in the shop, but not even one of them was required to witness the sampling or to attest the mahazar. Ignoring all of them. p. W. I went to the road to call two persona. According to the prosecution, samples of two different food articles were taken on the occasion from the provision shop and two proceedings had been launched. According to P. W. 1. two independent witnesses called from the road did not sign the mahazar in both the cases, and each of them signed one mahazar. But, this is falsified by what is shown in the mahazar. Mahazar shows that both the witnesses signed the mahazar in this case. Peon of the Food Inspector also was present, but he did not at test the mahazar. There is also evidence of D. W. 1. Taluk Supply Officer, which would lend a degree of improbability to the prosecution case that the accused had anything to do with the provision shop. None of these circumstances was properly considered by the courts below. In the light of the evidence and the circumstances emerging therefrom. I hold that there is reasonable doubt regarding the sampling done by P. W. 1 and the connection of the accused with the sampling. On this ground, the acauittal of the accused has to be sustained and I do so. The Criminal Revision Case is disposed of accordingly.


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