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Gori Shanker Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectFood Adultration;Criminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 756 of 1971
Judge
Reported in1974WLN490
AppellantGori Shanker
RespondentState of Rajasthan
DispositionPetition dismissed
Cases ReferredKoshikode v. Artbala Tea Estate Co.
Excerpt:
prevention of food adulteration act - section 9 and prevention of food adulteration rules--rule 8--'food inspector'--who is.;(b) prevention of food adulteration act - section 9 and prevention of food adulteration rules--rules 12 & 22 and form 6--form--when it be given.;the language of the form clearly indicates that it records a past transaction and the purpose for which the sample has been taken presumably to warn the seller that the food inspector is going to get the sample analysed and the seller may, therefore, preserve his own sample if he cares to do so. the language of this form does not show that it ought to be give first before the sample is purchased.;(c) prevention of food adulteration rules - rule 22--sample short in weight by 25 gms--held, sample is not inadequate for..........magistrate, raisingnagar for selling adulerated dhania (coriander).veersing chowdhari, food inspector visited the shop of the applicant on the morning of august 5, 1967 at anupgarh and purchased 375 grams of powdered dhania on payment of rs. 1 50 p he put the samples in three phials in equal quantity and sealed them in the presence of the motbirs and gave one phial to the accused along with form no 6 and sent another to the chemical analyst, jaipur, who found the sample to be adulterated with foreign matter as per his report ex. p/5 before the learned magistrate the prosecution examined sohanlal motbir (pw/1) and food inspector veersingh (pw/2) the accused admitted having sold the sample but he denied any adulteration by him and added that he sold it as he had purchased from.....
Judgment:

B.P. Beri, C.J.

1. This is criminal revision directed against the judgment of the learned Sessions judge, Sri Ganganagar dated November 23, 1971, where by he confirmed the sentence of Gori Shanker, the applicant, to 5 month's rigorous imprisonment and a fine of Rs. 200/- under Section 7/16 of the Prevention of Food Adulteration Act which wasawarded to him by the Sub-Divisional Magistrate, Raisingnagar for selling adulerated Dhania (coriander).Veersing Chowdhari, Food Inspector visited the shop of the applicant on the morning of August 5, 1967 at Anupgarh and purchased 375 grams of powdered Dhania on payment of Rs. 1 50 P He put the samples in three phials in equal quantity and sealed them in the presence of the Motbirs and gave one phial to the accused along with Form No 6 and sent another to the Chemical Analyst, Jaipur, who found the sample to be adulterated with foreign matter as per his report Ex. P/5 Before the learned Magistrate the prosecution examined Sohanlal Motbir (PW/1) and Food Inspector Veersingh (PW/2) The accused admitted having sold the sample but he denied any adulteration by him and added that he sold it as he had purchased from Vijaynagar. The learned Sub-Divisional Magistrate found that the the sale of Dhania stood proved and that it was adulterated with foreign matter and, therefore, he convicted the applicant and sentenced him to 6 months' rigorous imprisonment and to pay a fine of Rs. 200/- An appeal was taken before the learned Sessions Judge, Shri Ganganagar and it was urgent that Section 10 Sub-section (7) had not been followed in this case; and that the time and the date of examination of the sample have not been mentioned in the reports of the Public Analyst and as such the applicant was entitled to acquittal. The learned Sessions Judge rejected both these contentions and affirmed the sentence as indicated above.

2. Leraned Counsel for the applicant has taken before me several grounds assailing the applicant's conviction. The first ground urged by him is that Veer Singh is not a Food Inspector is required by the law and taking sample by him and subsequent proceedings are, therefore, vitiated Section 9 of the Prevention of Food Adulteration Act (hereinafter called ' the Act') lays down that the Central Government or the State Government, may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be. Rule 8 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called 'the Rules') prescribes the qualifications' The learned Deputy Government Advocate urged that this point was not raised before the two courts and it relates to a question of fact and it should not be permitted to be agitated before this Court in the revisional jurisdiction. I have gone through the evidence of Veer Singh. In his examination-in-chief he has stated that on 5 8-67 he w0s appointed as Food Inspector in Anupgarh and he had pouters under the Act upto 30th March, 70. In cross-examination he has stated that he had taken charge from Mr.J.N. Mathur as Food Inspector of Vijayanagir area. The applicant neither in his own statement nor in his cross examination challenged the statement made on oath by Veer Singh notwithstanding the fact that he had three opportunities to cross-examine him on 7-10-68; 3.2.69 and 25 3 69. There is no reason to disbelieve the Food Inspector's statement made on oath. It was believed by the trial court and was never challenged even before the first appellate court. The contention of the leraned Counsel for the applicant is rejected.

3. The second ground urged by the leraned Counsel for the applicant was that the procedure as laid down in Section 11 and particularly Rules 12 and 22 not having been followed, the investigation was vitiated and the accused be acquitted. Section 11 provides that when a Food Inspector takes a sample of food for analysis, he shall give notice in writing to the person from whom he has taken the sample in Form 6. I have read the language of Form 6. It reads,--

I have this day taken from the premises of---------------situated at ------------------samples of the food specified below to have the sample analysed by the public analyst for---------------Details of food------------ --Place--------------- Food InspectorDate--------------- Area----------------------

The leraned Counsel's contention is that this Form ought to have been given by the applicant before the sample was taken. The argument has no substance. The language of the Form dearly indicates that it records a past transaction and the purpose for which the sample has been taken presumably to warn the seller that the Food Inspector is going to get the sample analysed and the seller may, therefore, preserve his own sample if he cares to do so The language of this From does not show that it ought to be given first before the sample is purchased.

4. According to Rule 22 the quantity of sample to be sent to the public analyst is specified. The argument of the leraned Counsel is that the quantity of spices under Item 17 to be sent to the public analyst is 150 grams, where as the Food Inspector having purchased only 375 grams ofDhania and divided it into 3 equal points, he must have sent 125 grams of it as against 150 grams to the Public Analyst. Thus Rule 22 is violated. In my opinion' the argument has no force. The reason is that in table below Rule 22. column 3 the words employed are 'Approximate quantity to be supplied'. Thus a few grams, more or less is permitted to be supplied to the Public Analyst. Assuming for the sake of argument that 375 grams was precisely divided into 3 equal parts, only 25 grams less in weight was the sample sent to the Public Analyst. Courts have consistently held that any shortage in the weight of sample does not vitiate the trial. In Nagar Swasthya Adhikari, Nagar Mahapalika Agra v. Ant Ram : AIR1966All32 , where the quantity of Jalebi sent for analysis was only two ounces and not 16 ounces as required, it was held that no prejudice was caused to the accused and that there was no breach of any of the provisions of law. It has been held in Public Prosecutor v. Bashir Sahib : AIR1966Mad325 . Public Prosecutor v. Mohammed Yousuf ILR 1965 (1) Mad 549, Public Prosecutor v. Passala Rama Rao : AIR1967AP49 and Public Prosecutor v. Venkataswami : AIR1967AP131 that any variation in the quantity indicated in Rule 22 does not affect the result of analysis. In my opinion the object behind this rule is to provide adequate quantity of a sample for effective scientific tests. The grievance, if any, on account of such shortage could be that of the Public Analyst if he was unable to test the sample on account of its inadequacy in weight. In the case before me the Public Analyst no where made any grievance that he could rot test the quantity because it was 25 grams less in weight. There is no substance in this argument and it is rejected.

5. The third argument urged by the leraned Counsel was that under Section 10(7) the Food Inspector when he takes action under Clause (a) of Sub-section (2) or Sub-section (4), or sub-Section (6) he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. The Inspector had taken two Motbir witnesses when he took the sample. He had examined the peon. The peon is certainly under the District Medical and Health Officer but that does not mean that he would speak a lie on that account. In point of fact taking of sample has never been disputed by the accused and it is futile to invoke the aid of Section 10(7) for the purpose of assailing his conviction. Section 10 Sub-section (7) 6peaks of calling one or more persons to be present at the time when action is taken and take his or their signatures. The Food Inspector had called 2 persons. He has examined one of them. I can quite appreciate his resistance in examining the other man, who is a shop-keeper in the same locality. Thus there is no weight in his criticism of the leraned Counsel.

6. The fourth argument raised by the leraned Counsel is that Section 13 read with Rule 7 was not complied with. Rule 7 reads:

On receipt of a package containing a sample for analysis from Food Inspector or any other person, the Public Analyst or any other 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 seals there on.

Ex P/5 contains an endorsement of the comparison of the seal. The Food Inspector was not cross-examined whether the sample of the seal was sent or not, nor were any grounds raised before the first appellate court. Leraned Counsel cited Hetai Chandra and Surendra Nath Dey v. Corporation of Calcutta : AIR1967Cal65 , State of Gujarat v. Shantaben : AIR1964Guj136 and Belgaum Borough Municipality v. Shridhar Shankar Kundri and Anr. AIR 1968 Mys 196. The plain object of the rule is to prevent the possibility of tempering of the sample in the process of its transmission. The minute I find that the Public Analyst says that he had compared the seal and this cot having been disputed in the courts below I find no substance in this contention.

7. The last argument raised is that the consent for the prosecution given in this case was not proper. The consent Ex. P/6 is in the following words:

I, Murarilal Chug; Chairman, Municipal Board, Anupgarh hereby give written consent to the prosecution of Shri Gori Shanker s/o Shri Lalchand Arora resident of Anupgarh in the court of law for the offence made under the Section 20 of the Prevention of Food Adulteration Act, 1954. ... .. ...

Leraned Counsel assails this consent, firstly, on the ground that there was no offence committed under Section 20 of the Act and, therefore, it is no consent in the eye of law. The syntax is indeed not happy. What it means in substance is that the Chairman gave written consent under Section 20 of the Prevention of Food Adulteration Act for the prosecution of Gorishanker for the offence committed by him under that Act. The leraned Counsel added that it shows that mind was net applied by the Chairman. The object of Section 20 is that re-prosecution for the offence under the Act shall be instituted except by or with the written consent of the authority under the Act. It is a safeguard against the frivolous complaints and consequent harassment. In my opinion the consent in this case has been given by the proper authority and it is not necessary to specify the offence in the sanction. The leraned Counsel has relied on State of Bombay v. Purshottam Kanaiyalal : [1961]1SCR458 . In this case the objection was that the complainant was not named in the written consent and in this context their Lordships observed:

In the first place, the reason of the rule could not suggest or imply such a condition. The rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecutions against traders. It therefore provides that the complaint should be filed, either by a named or specified authority. To read by implication that before granting a written consent, the authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable but the further implication that the complainant must be named in the written consent does not, in our opinion, follow.

This case is no authority for the proposition that the specific offence must be mentioned.

8. In so far as the question of applying one's mind is concerned, the latest authority pointedly on the subject is Dhian Singh v. Municipal Board, Saharanpur and Anr. : 1970CriLJ492 . In para 6 their Lordships have observed:

Under Section 20 of the Prevention of Food Adulteration Act, 1954, no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases. That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question.

It is not necessary in view of the Supreme Court's authoritative pronouncement to discuss Municipal Health Officer and Food Inspector, Koshikode v. Artbala Tea Estate Co. : AIR1961Ker84 .

9. No other point was pressed before me.

10. I must mention one circumstance that I have noticed in this case. The learned Magistrate imposed a fine of Rs. 200/- when Section 16(1)(f) categorically prescribes 'and with fine which shall not be less than one thousand rupees'. The learned Magistrate was, therefore, clearly in error. The case relates to the year 1937 and the applicant is said to be a small shopkeeper therefore I did not consider it expedient to issue a notice for enhancement.

11. In my opinion the applicant has been rightly convicted for sailing adulterated coriander and his conviction calls for no interference.

12. This revision fails and is dismissed.


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