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State by v. Mani - Criminal Appeal No.425 of 1999  RD-TN 374 (29 January 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR. JUSTICE J.A.K.SAMPATHKUMAR
Criminal Appeal No.425 of 1999
Rep.by Public Prosecutor
High Court, Madras. ... Appellant Vs.
Krishnankoil ... Respondent Appeal under Section 378 Cr.P.C. against the judgement and order of acquittal passed by the Judicial Magistrate No.2, Nagercoil in C.C.No.49/93 dated 22.12.1998
For Petitioner : Mr. P. Rajendran
For respondent : Mr. G. Arumugaperumal
Mr. T.K.S. Maniam
This Criminal Appeal is filed against the Judgement dated 22.12.1998 in C.C.49 of 1993 on the file of the Judicial Magistrate, Nagercoil in and by which, the learned Magistrate found that the accused has not committed any offence under Food Adulteration Act and ultimately, acquitted the accused under Section 248(1) Cr.P.C.
2. Against which, the State filed Criminal Appeal contending that the trial Court erroneously acquitted the accused as the reasons for the same was not sound and convincing and prayed to setaside the order on the following grounds:
1. The trial Court ought to have seen that the evidence of Food Inspector is clear to the effect that he had stirred the milk before lifting the food sample. 2. The trial Court erred in acquitting the accused on the ground that the sample of milk have reached the public Analyst 20 days later from the date of taking the sample. In fact, the Food Inspector has sent the sample to the Public Analyst on the very next day of lifting the same i.e. on 11.12.1993 as per Ex.P.14, Postal Receipt. In fact, the sample was received by the Public Analyst on 15.2.1993 as per acknowledgement Ex.P.15. There was no delay in sending the food sample to Public Analyst and the delay of the sample reaching the Analyst as found by the trial Court is liable to be set aside for the foregoing reasons.
3. Heard Mr. P. Rajendran, learned Government Advocate appearing for Petitioner/State and Mr.G.Arumugaperumal, learned counsel appearing for the respondent.
4. Upon hearing the rival contentions, the point for consideration are 1. Whether the contraband under dispute was in homogeneity while the sample was taken for Public Analyst?
2. Whether there was any delay of sending the sample to the Public Analyst by the Food Inspector?
3. Whether the finding of the trial Court in acquitting the accused is in order?
5. The learned counsel for the accused/respondent contended that there was no evidence on record to show that the commodity under dispute was in homogeneity when the sample was taken by the Food Inspector and that the Food Inspector failed to discharge his duty, in the manner of taking samples, especially with reference to the commodity under dispute i.e. the milk and therefore, the prosecution has to fail on this ground alone.
6. The learned counsel for the accused/respondent also relied on the following rulings in support of his contention:
1. 1997(1) KERALA HIGH COURT 143 (CHANDAMPATTA MOHAMMEDKUTTY V. THE FOOD INSPECTOR)
2. 1989 L.W. (Crl.) 285 (STATE BY PUBLIC PROSECUTOR V. KANDAN)
7. The learned Government Advocate confronted the contention of the learned counsel for the accused/respondent contending that the Food Inspector hand stirred the milk before lifting the food sample after satisfying the homogeneity of the milk and therefore, the finding of the trial Court that there was no homogeneity in the milk while taking the sample by the Food Inspector is erroneous and therefore, the finding of the trial Court is liable to be set aside.
8. Now, let me analyse the principles laid down in the said rulings coupled with the facts on hand to find out whether there was, homogeneity in the milk before lifting the sample by the Food Inspector.
9. The above referred cases is with reference to taking of sample by the Food Inspector without stirring the milk. In both the case, the trial Court found that there was no homogeneity in the milk while lifting the sample by the Food Inspector. The trial Court, further found that the Food Inspector has not let in any evidence as to stirring or churning of the milk before taking sample by using the dipper or by pouring the milk from one can to another. Because of lack of evidence in this regard, this Court found that the sample cannot be stated to be homogeneuis and representative one to deal to the correct test by the Analyst and ultimately confirmed the acquittal.
10. In this context, let me analyse the evidence on record to find out whether the Food Inspector had taken the sample of milk after stirring or churning the commodity under question by using dipper or by pouring milk from one can to another. The evidence on record would show that the milk was not homogeneous while taking sample out of it by P.W.1. He has also not informed the accused the purpose for which he was taking sample. In fact, the food Inspector was not possessed of any vessel for collection of sample. The method for dividing the sample into three parts stated by the Food Inspector is suspicious. In fact, according to the evidence, he has purchased 1300 ml. Milk for Public Analyst. In such circumstances, it would have been very difficult for the Food Inspector in dividing 1300 ml. in to three parts. He has not stated the method in which he has divided 1300 ml. of milk in to three parts. Because of the infirmity referred above, the trial Court found that the conviction of the accused basing on such infirmity cannot sustain and hence, acquitted the accused. I am also of the view that it is not safe to convict the accused with the above infirmities in the light of the principles enunciated in the above ruling. I am satisfied that the finding of the trial Court in acquitting the accused based on infirmity is in order and dies not require any interference.
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