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Food Inspector, Municipal Council Vs. Secretary, Ksheeravyavasaya Co-operative Society and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1978CriLJ532
AppellantFood Inspector, Municipal Council
RespondentSecretary, Ksheeravyavasaya Co-operative Society and ors.
Cases ReferredState of Kerala v. Mammu Musaliar
Excerpt:
.....lj 842) that the respondents contended' before the respective trial courts that the report of the public analyst could not be accepted as reliable and correct. (iii) the report of the public analyst cannot be treated as reliable evidence in view of the fact that excess quantity of formalin has been added to the sample. sub-section (4) of section 378 clearly states that if an order of acquittal is passed in any case instituted upon complaint and the high court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the high court. 10. rule 19, as stated earlier, only says 'may add'.the 'object of this rule is to maintain and preserve ft3ae sample in a good and suitable..........sent for analysis. it was on the basis of the following discussion appearing at page 130 of 'food analysis' by a. g. woodman, 'milk that has been preserved with formaldehyde usually requires longer time and more vigorous shaking to dissolve the curd, on account of the hardening action of this preservative on the coagulated casein,' that the learned judge observed that the preservative of formaldehyde has a hardening action on the milk. if that is so, in every case where formalin has been added, whether it is 16 drops or 18 drops or lesser than that, this hardening action on the milk will be there- what woodman states in this discussion is that to dis- solve the curd in a sample of milk preserved with formaldehyde, it usually requires longer time and vigorous shaking. we may also.....
Judgment:

S.K. Kader, J.

1. These two appeals have come up before us, the former being referred by Khalid, J. on the ground that there is a seeming conflict of opinion between the decisions in Food Inspector v. Ittyavirah 1972 Ker LT 942 : 1973 Cri' LJ 842 and Food Inspector v- Karuna-karan (1973 Ker LT 595) and the latter by one of us, as the point involved in both the cases was the same. Both these appeals arising under the Prevention of Food Adulteration Act, which will hereinafter be referred to as the Act, are directed against orders of acquittal. Criminal Appeal No. 339/75 is filed by the Food Inspector, Municipal Council, Alwaye, challenging the order of acquittal of respondents 1 and 2, who were accused 1 and 2 respectively before the trial court. The first respondent is the Kshee- jravyavasaya Co-operative Society represented by its Secretary and te second respondent is a salesman under the Society. In the afternoon of March 28, 1974 the Food1 Inspector (P. W. 1) purchased 660 raili. of buffalo milk from the second respondent who was carrying a larger quantity of buffalo milk for sale and the same was sampled and divided into three equal parts in accordance with the provisions of tfoe Act- One of these parts was sent for analysis and as per Ext. P-6, the' report df the Public Analyst, the sample did not conform to the standard prescribed and in addition it contained not leas than 25% of added water amd was therefore adulterated. The first respondent waa discharged as there was no- prima facie case made out against the Society aad, the second respondent although admitted the sale of the sample in question to P. W. I, contended that no reliance can be placed on Ext. P-6 report.

2. Crl. Appeal No- 293/75 is filed by the Food Inspector, Changanacherry Municipality, questioning the legality amxi correctness of the order of acquittal of the respondent therein who was tried fey the1 Judicial Magistrate of the 1st Class, Changanacherry, for an offence punishable Under Section 7 read with Section 16 of the Act read: with the rules framed thereunder oni the allegation tliat he sold 660 ml. of cow milk in the morning on December 12, 1972 to the Food Inspector, Changanacherry Municipality (P. W. 1) and that the same on analysis was found to be adulterated. Ex. P-5, the report of the Public Analyst, showed that the sample did not conform to the standard prescribed for cow milk. The only contention raised by the respondent before the trial court was that Ex. P-5 report is not reliable and acceptable.

3. It was on the basis that the Food Inspectors in Mme respective cases added 18 drops of formalin instead of 16 drops as preservative to the samples and relying on. the decision of this Court in Food Inspector v. Ittyavirah 1972 Ker LT 942: (1973 Cri LJ 842) that the respondents contended' before the respective trial courts that the report of the Public Analyst could not be accepted as reliable and correct. The trial courts relying on the above said ruling acquitted the respondents.

4. Sri.V. M. Kurian, learned advocate appearing for the appellant in Crl. Appeal Mb. 339/75 strongly attacked the order of acquittal on various grounds. It is contended that there is absolutely no evidence on record to show that the report of the Public Analyst has in any way been adversely or prejudicially affected, that there has been sufficient and substantial compliance of Rule 20 which is only directory, that the report of the Public Analyst shows that the sample has not decomposed and was in a fit state for analysis and that addition of a slight percentage of formalin in excess of what is prescribed under the rule cannot affect the result of the analysis. The counsel also invited our attention to two Full Bench decisions of this Court in State of Kerala v. Vasudevan Nair 1974 Ker LT 617 : 1975 Cri LJ 97 (FB) and State of Kerala v. Mammu Musaliar, 1974 Ker LT 792 : 1975 Cri LJ 409 and also to a decision reported in Food Inspector v. Karunakaran (1973 Ker LT 595) in addition to an unreported decision of this Court in Crl. Appeal No. 198 of 1973-

5. At the very outset, Sri Kurian submitted that he is not pressing the appeal against the first respondent who has been discharged by the trial court. The proper remedy was to file a revision challenging the order of discharge and that has not been done. No statutory right of appeal has been conferred against an order of discharge.

6. Sri K. M. Abraham, learned advocate appearing for respondents 1 and 2 in this appeal urged the following points in support of the acquittal:

(i) The appeal itself is not maintainable because the Food Inspector, the appellant, is not a complainant coming within the definition of the Cr.PC

(ii) Rule 20 is a mandatory provision-This has been violated in this case and on that short ground the accused is entitled to an acquittal.

(iii) The report of the Public Analyst cannot be treated as reliable evidence in view of the fact that excess quantity of formalin has been added to the sample.

7. Sri P. C. Chacko, learned advocate appearing for the respondent in the other appeal, only contended relying on the decision reported in Food Inspector v. Ittyavirah, 1972 Ker LT 942 : 1973 Cri LJ 842 that possibility of an error in the result of analysis cannot be ruled out in view of the hardening effect of formalin.

8. We shall now deal with the points canvassed by Sri Abraham in the sequence in which they were urged- Sec- tion 2 (d) of the Cr.PC 1973, defines 'complaint' as meaning any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The Food Inspectors in the respective cases on receipt of the reports of the Public Analyst filed written complaints against the respondents alleging that they sold adulterated milk to the Food Inspectors and that they thereby committed an offence punishable under the Act. Admittedly the procedure that was followed in the matter of trial was one prescribed for warrant cases instituted otherwise than on police report. 'Police report' has also been defined under the Code. The counsel for the respondents have no case that the com-pl aints filed by the Food Inspectors satisfy the definition of a police report. It is also admitted that these cases were not prosecuted by the A- P. P. or the Public Prosecutor, who are appointed by the Government to prosecute cases on behalf of the State. A reading of Section 378 makes it clear that a complainant has been given a right of appeal against an order of acquittal. The complaints in the cases on hand satisfy the definition of 'Complaint' under the Criminal P. C. Different procedures are prescribed under the Code for trial of cases instituted on police report and those instituted otherwise than on police report. Sub-section (4) of Section 378 clearly states that if an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. These are appeals filed under Sub-section (4) of Section 378 of the Cr.PC The contention that the appeals are not maintainable has therefore no merit.

9. Rules 19 and 20 have to be read together. Rule 19 speaks about addition of preservative to the samples. It is significant to note that this rule only uses the word 'may add a preservative as may be prescribed from time to time to the sample'. Under Rule 20, the variety of the preservative to be used in the case of samples of any milk and the proportion in which the same has to be used to the samples have been stated. It was argued on behalf of the respondents that this rule is intended for the purpose of se- curing accuracy m the analysis to be carried out by the Public Analyst and also to protect the interests of the accused and therefore it should be strictly complied with and prejudice can be pre-sumed from the violation o this rule, as it is mandatory.

10. Rule 19, as stated earlier, only says 'may add'. The 'Object of this Rule is to maintain and preserve ft3ae sample in a good and suitable condition their analysis, The preservative prescribed under Rule 20 to be used an like case of samples of any milk is a languid community known as 'Formalin' .and the proportion prescribed is 0.1 ml. ,2 drops for 55 ml. when it says 2 drops, it team foe only approximate. The drop may be small or large. The quantity 'or the volume of each drop may vary depending upon the size of the pipette or instrument used for the purpose. Similarly, while (referring to the strength of fee preservative, this rule speaks of formalin as a liquid containing about 40 % of formaldelayde its aqueous solution. It is important to note that the rule does not insist that the percentage of formaldehyde .shtouJd be ac-i actly or precisely 40%.. These are also indications that what was required was only substantial coinpAiaaoe in this dm-pect and not strict compliance.

11. The question whether it has rule ftp mandatory or directory came rap for consideration before various High Courts. A Division Bench of the Bombay High Court in Nagpur Municipality v. Sukfra-nandan (1972 Cri LJ 535) considered this question elaborately. The Division Beach after referring to decisions of various High Courts on the point, the rules and provisions in the Act and agreeing with the views taken by the High Courts of Gujarat, Andhra Pradesh and Patne, heM that the provisions of Rule 20 are directory in nature and that where the sample has been found fit for analysis, the report of the Public Analyst cannot be disregarded although tihere is no strict compliance with the requirements of this rule. In G. H. Rabari v. S. V. Pandya : AIR1970Guj235 while holding that Rule 20 is in its nature directory and not mandatory, the learned Judge observed that to take a different view of the matter, namely, that that rule is mandatory, would amount to giving undue advantage to those guilty without promoting the real aim and object of the enactment. We are In respectful agreement with the views expressed on the point in Nagpur Municipality v. Sukhanandan, (1972 Cri LJ 535) (Bom) and G- H. Rabari v. S. V. Pandya : AIR1970Guj235 .

12. Courts cannot while interpreting the sections of the Act and the rules framed thereunder, overlook the intention and the object behind the legislation. This enactment is a social document meant for the protection of general public. We cannot construe the provisions too narrowly so as to allow persons within its (purview to escape its net. On a careful consideration of the relevant rules, their nature and design, bearing in mind the intention and the object of the legislation and the consequences which would follow from construing the particular rule one way or the other, we are of the view that Rule 20 is not mandatory and is only directory in nature.

13. The next point for consideration is whether addition of a small quantity of formalin in excess of the prescribed quantity is likely to affect the result of the analysis. It is not disputed that as per Rule 20, the quantity of formalin required for a sample of 220 ml. is 17.6 drops and instead in the cases on hand, the Food Inspectors have added 18 drops to the samples in each case. The excess quantity of formalin added is therefore only 0.4 drop. It is unfortunate that the learned Magistrates did not carefully look into Rule 20 and assumed that the prescribed quantity of formalin is 16 drops. Under S< 13 of the Act, a right has been given to the complainant as well as the accused to challenge the correctness of the report of the Public Analyst by sending the sample to the Director of Central Food Laboratory for a certificate. Under Sub-section (5) of Section 13, any document purporting to be a report signed by the Public Analyst may be used as evidence of the facts stated therein in any proceeding under the Act. There is no certificate of the Director of Central Pood Laboratory in these cases. By virtue of S- 13 (5), the report of the Public Analyst constitutes a good piece of evidence in these cases. It is not necessary that the Public Analyst should state the method adopted or the technical process involved in carrying out the analysis in his report and it is not open to the court to decline to act on the strength of the result declared by the analyst on the reason that the report is bereft of other particulars, (vide State of Kerala v. Matnmu Musaliar, 1974 Ker LT 792 : 1975 Cri LJ 409.

14. It was on the basis of the decision of this Court in Food Inspector v. Ittyavirah, 1972 Ker LT 942 :(1973 Cri LJ 842) that the trial courts acquitted the respondents. That was a case of cow milk. The trial court acquitted the accused and that order of acquittal was challenged before the High Court. In that case, it was alleged that instead of 16 drops of formalin 1'8 drops were added to the sample- The learned single Judge referring to a decision of the Andhra Pradesh High Court in Public Prosecutor v. Venkata Swami : AIR1967AP131 and that of the Supreme Court in Ajitprasad v. State of Maharashtra, : 1972CriLJ1026 , observed as follows (at p. 843 of 1973 Cri. L. J.):

Ext. P-5 report of the Public Analyst shows that the milk was not decomposed and therefore the principles laid down in the cases cited above would apply.

In Ajitprasad v. State of Maharashtra : 1972CriLJ1026 the Supreme Court observed that if the accused felt that the sample sent was capable of decomposition for insufficiency of the preservative used, it was for him either to examine the Public Analyst or send the sample with him for analysis to the Central Food Laboratory. It was further observed that there was no evidence before the Magistrate that for the reason that the prescribed quantity of formalin was not added to each part, the part of the sample delivered to the vendor was incapable of being analysed by the Director.

15. But, the learned Single Judge, after having observed that the principles laid down in the two cases referred to above would apply to Ex. P-5, in the subsequent paragraphs found fault with Exhibit P-5 stating that all it shows is that the Analyst caused the food to be analysed and declared the result of the analysis as stated therein and that it is not clear from it which method was adopted by the Analyst. Then after referring to and extracting the following passage at page 710 of 'Analysis of Foods' by A. L. Winton and K. B. Winton 'Formaldehyde (1 ml. of 40 per cent solution per quart) is a good preservative, but it hardens the casein and interferes somewhat with fat determination by Babcock test' held that a passible error in determining the fact con- tent in the milk by the addition of excess quantity of preservative cannot be ruled out. It was further observed that the learned Judge was constrained to go into the details of the tests in that case only because the accused had the advantage of acquittal.

16. The Supreme Court in Dhian Singh v. Saharanpur Municipality : 1970CriLJ492 has approved the following observation of the Allahabad High Court in Nagar Maha-palika, Kanpur v. Sri Ram : AIR1964All270 as the correct view on the subject (at p, 278 of AIR):

The well settled view of this Court Ss that the report of the Public Analyst Under Section 13 of the Act need not contain the mode or [particulars of analysis, nor the tests applied, but should contain the result of analysis, namely, data from which it can be inferred whether the article of food was or was not adulterated as defined Under Section 2(i) of the Act.

These decisions ihad not been brought to the notice of the learned Single Judge. As stated earlier, a Full Bench of this Court also took the same view. It would appear that it was mainly on the basis that the Public Analyst did not mention the method or the other details of the tests adopted by him in ihis report, that the learned Judge concluded that a possible error in determining the fat content in the milk by the addition of excess quantity of preservative cannot be ruled out. This apart, the passage relied on by the learned Judge applies only to fat determination by the Babcock test. There is no evidence in these cases that it was by adopting Babcock test that the Public Analyst determined the fat content in the samples sent for analysis. It was on the basis of the following discussion appearing at page 130 of 'Food Analysis' by A. G. Woodman, 'Milk that has been preserved with formaldehyde usually requires longer time and more vigorous shaking to dissolve the curd, on account of the hardening action of this preservative on the coagulated casein,' that the learned Judge observed that the preservative of formaldehyde has a hardening action on the milk. If that is so, in every case where formalin has been added, whether it is 16 drops or 18 drops or lesser than that, this hardening action on the milk will be there- What Woodman states in this discussion is that to dis- solve the curd in a sample of milk preserved with formaldehyde, it usually requires longer time and vigorous shaking. We may also point out, with respect, that it is wrongly assumed in this case that the quantity of preservative prescribed by Rule 20 is 16 drops for a sample of 220 ml. The reports of the Public Analyst in both the cases show that the samples sent to him were in a fit state. Rule 21' enjoins that whenever any preservative is added to a sample, the nature and quantity of the preservative added shall be clearly noted on the label to be affixed to the container. Nobody has a case in any of these cases that the Food Inspector has violated this rule. This rule is to enable the Public Analyst to know the nature and quantity of the preservative added to the sample. As the object of adding formalin to the sample is to maintain the same in a condition suitable for analysis, what is necessary and important is to find out whether that object has been achieved in these cases. It was in discharge of his duties as a public servant that the Public Analyst analysed the samples sent to him and submitted the reports- The legal presumption available Under Section 114 of the Evidence Act is available in favour of the reports. Both the reports state that the samples were in a fit state for analysis and no decomposition has taken place in the samples forwarded to interfere with the analysis. If really, addition of 0.4 drop of formalin in excess of the quantity prescribed was likely to affect the result of the test, the Public Analysts should have certainly noted that fact in the reports. There is nothing in Section 13 or in any other relevant sections in trie Act or in the rules framed there-i under to show or indicate that non-compliance or violation of Rule 20 would render the report of the Public Analyst unreliable or suspicious. In the cases on hand the sale of milk by the respondents to the respective Food Inspectors has been conclusively proved by the evidence on record and the same is also not disputed before us. If the respondents, in the circumstances of the case, felt that the reports of the Public Analyst were hot reliable or correct, it was open to them to have either summoned the Public Analyst as a witness or to send the samples given to them for a certificate to the Director of Central Food Laboratory. It was also open to fhem to examine expert witnesses to substantiate their contentions. this Court in State of Kerala v. Mammu Musaliar, 1974 Ker LT 792 : 1975 Cri LJ 409 while dealing with the reliability of a report Under Section 12 of the Act has stated as follows (at p. 414 of Cri LJ):

The Act Is a self-contained one and what is required to be stated in an analyst's report is as laid down in Section 13, Rule 7 and Form III. When these conditions are satisfied,' ordinarily it is not necessary for the Court to go behind the result declared by the analyst, enquiring into the correctness of the technical processes involved or the methods adopted during the course of the analysis by the analyst. Satisfaction of the court by such searching enquiry as a condition precedent to the acceptance of the report of the Public Analyst as legal evidence, does not appear to be warranted by any provision of law. The report of the analyst by no meens is conclusive. Wherever the accused entertains a doubt regarding the correctness about the report of the analyst, it is open to him by virtue of the provisions contained in Sub-section (2) of Section 13 of the Act, to get the sample analysed by the Director of Central Food Laboratory whose certificate by virtue of the provisions contained in Sub-section (3) shall supersede the report given by the Public Analyst under Sub-section (1) of Section 13. The decision as to whether the sample in question is adulterated or not, is one to be taken by the Court on the materials placed before it. The report of the analyst is one of the pieces of evidence that comes to the assistance of the Court in determining whether the sample is adulterated or not. If there is room for any doubt in the mind of the Court about the correctness of the result declared in the report delivered by the analyst or the certificate issued by the Director, the analyst or the Director, as the case may be, could be summoned and examined to elicit clarifications.

It was further observed that if the court feels a doubt regarding the correctness or the reliability of the result declared in the report of the Public Analyst or the Certificate of the Director for want of necessary particulars or due to the non-mentioning of the methods or tests adopted, the court has a right and duty to summon the analyst or the Director, as the case may be. It is neither proper nor safe to resort to the short-cut of acquittal of the accused on the ground of want of necessary particulars in the report. In the absence of any evidence that addition of an excess quantity of formalin affected or was likely to affect the result of analysis, and in the light of the reports of the Public Analyst and the Full Bench decision of this Court, we are of opinion that the addition of 0.4 drop of formalin in excess of the prescribed quantity to the samples of milk in these two cases has not in any way affected the result of the analysis and that the report of a Public Analyst can not be discarded or suspected on the ground that there is no strict compliance with the provisions in Rule 20.

17. On behalf of the respondents, a submission was made that it was relying on the decision in Food Inspector V. Karunakaran, 1972 Ker LT 942 : 1973 Cri LJ 842 that they did not take any steps to summon either the Public Analyst or any other expert as a defence witness to substantiate their contentions and that therefore they should be given an opportunity to let in evidence on their side in this respect. We feel, there is force in this submission and think it is only fair and proper that an opportunity should be given to the respondents to adduce evidence on their sides in support of their respective contentions.

18. From the foregoing discussions and findings, it follows that the orders of acquittal of the respondents in both these appeals on the grounds mentioned therein are wrong end are liable to be set aside.

These appeals are therefore allowed1, the orders of acquittal are set aside and the cases are sent back to the respective trial courts for disposal according to law from the stage of defence after; giving an opportunity to the respondents to adduce evidence in support of their respective contentions including examination of experts.


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