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State by v. Kaveri - C.A.No.181 of 1996  RD-TN 593 (24 July 2003)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.181 of 1996
High Court, Madras. .. Appellant -Vs-
Kaveri .. Respondent This criminal appeal is preferred under Sec.378 of The Code of Criminal Procedure against the judgment of the Judicial Magistrate, Aruppukottai made in C.C.No.511/93 and dated 20.3.95. For Appellant : Mr.O.Srinath
Government Advocate (Crl. Side) For Respondent : No appearance
An appeal by the State challenging the judgment of the Judicial Magistrate, Aruppukottai, acquitting the respondent/accused in a case registered under Ss 7(1) & 16(1)(a)(1) and 2(1a)(a)(b) & (m) and Rule 23 of the Prevention of Food Adulteration Act.
2. The short facts which led the State to file the complaint are: On 26.8.1993 at about 11.30 A.M., P.W.1 Ravindran, Food Inspector, Aruppukottai Municipality along with his Assistant visited the shop of the respondent/accused namely Kaveri Grocery Shop, situated at No.3-11-52, Karadi Kamatchi Street, Aruppukottai Town. He suspected adulteration in Red Gram, which was kept for sales. He purchased 750 grams of Red Gram by making a payment of Rs.14.25 under Ex.P2 receipt in the presence of an independent witness. He took samples from them, divided the same into three parts. Out of those three parts, one was sent to the Public Analyst and the other two were sent to the local health authority after following the procedural formalities. The Public Analyst has given a report under Ex.P10 stating that the sample is adulterated since it contains a coal tar food colour - Tartrazine. Following the same, the complaint was filed against the respondent/ accused under Ss 7(1) & 16(1)(a)(1) and 2(1a)(a)(b) & (m) and Rule 23 of the Prevention of Food Adulteration Act.
3. In order to prove the charges the Food Inspector Ravindran was examined as P.W.1, and 14 documents were marked, and no material objects were marked. The respondent/accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witness, and the accused denied them as false. On the side of the defence, 2 documents were marked. On hearing the rival submissions and consideration of the materials available, the trial Court took the view that it was a fit case for acquittal and rendered a judgment of acquittal which is challenged by the State.
4. Arguing for the State, the learned Government Advocate (Criminal Side) would submit that the lower Court has seriously erred in acquitting the respondent, since the evidence of P.W.1 Food Inspector concerned was cogent, convincing and acceptable; that it is pertinent to note that the sale of the food article which was adulterated, was not disputed by the accused; that there was no challenge for the purchase of food article by P.W.1 Food Inspector; that having accepted the prosecution case that the sample contained prohibited coa tar food colour (Tartrazine), the lower Court ought to have convicted the accused as charged; that the lower Court was not correct in stating that the procedure in taking the sample was not adopted, since Ex.P1 mahazar did not contain the particulars and full address of the independent witness and hence, it casts a doubt on the case; that it is pertinent to note that Ex.P1 receipt under which P.W.1 purchased the food article from the shop of the respondent/accused contained full particulars of the independent witness, and hence, the judgment of the lower Court has got to be set aside.
5. When the appeal was taken up, no representation was made on the side of the respondent/accused.
6. After careful appraisement of the materials available and consideration of the submissions made by the learned Government Advocate for the State, the Court has to necessarily disagree with the contentions put forth by the State.
7. The Court is able to notice two serious defects in the case put forth by the State before the trial Court. The gist of the case of the State before the Court below was that P.W.1 Food Inspector, Aruppukottai Municipality, purchased under Ex.P2 receipt 750 grams of Red Gram for Rs.14.25; that he took samples under Ex.P1 mahazar, divided them into three parts and sent them to the Public Analyst and local health authority respectively; that he obtained the report from the Public Analyst and ascertained that the food article is an adulterated one, and hence, he lodged a complaint. As rightly pointed out by the Court below, a perusal of Ex.P1 mahazar under which the samples were taken did not contain the particulars of the only independent witness. The particulars of persons who attended at the time of taking the sample should be given, and if not given, the sampling operation cannot be tested, when it was challenged by the accused. In the instant case, Ex.P1 mahazar under which the samples were taken did not contain the address of the only independent witness. It remains to be stated that the only independent witness has not been examined. In such circumstances, the contention of the learned Government Advocate that the non-examination of the independent witness would not be fatal to the case of the prosecution cannot be countenanced, in view of the above mentioned circumstances of the case, where Ex.P1 mahazar did not contain the particulars of the person who according to the prosecution, was the independent witness. Hence, without any hesitation it can be well stated that the sampling operation was thoroughly vitiated. On this point the lower Court was perfectly correct in dismissing the prosecution case and acquitting the respondent/accused. There is nothing to interfere in the judgment of the Court below, and the same has got to be affirmed.
8. In the result, this criminal appeal is dismissed, confirming the judgment of the lower Court.
1) The Judicial Magistrate, Aruppukottai.
2) The Chief Judicial Magistrate, Kamarajar District. 3) The Principal District Judge, Kamarajar District. 4) The Public Prosecutor, High Court, Madras.
5) Mr.O.Srinath, Government Advocate (Crl. Side), High Court, Madras.
6) The Food Inspector, Aruppukottai Municipality. nsv/
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