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State by v. Mubarak Ali - Criminal Appeal No.208 of 1997  RD-TN 375 (29 January 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29/01/2007
THE HONOURABLE MR.JUSTICE J.A.K.SAMPATHKUMAR
Criminal Appeal No.208 of 1997
rep.by Public Prosecutor
High Court, Madras. .. Appellant vs.
S/o.Srinivasan .. Respondents
Appeal under Section 378 Cr.P.C. against the judgment and order of acquittal passed by the Judicial Magistrate No.1, Tiruchirapalli in C.C.No.1282/94 dated 10.1.1996.
For Petitioner : Mr.P.Rajendran
For respondents : Mr.C.Muthu Senavan
This Criminal Appeal is filed against the Judgment dated 10.1.1996 in C.C.No.1282 of 1994 on the file of the Judicial Magistrate No.1, Tiruchirapalli in and by which the learned Judicial Magistrate after analysing the evidence found that the accused is not guilty for the offence under Section 7(ii) and 16(1)(a)(i) read with 2(9)(k)and Rule 24, 42(zzz) (1) and 47 of the PFA Act and Rules and acquitted them under Section 248(1)Cr.P.C.
2.The brief facts of the case are as follows: P.W.1-Food Inspector of Trichy Corporation is authorised to take food sample. He is also authorised to launch prosecution as per various Government Orders. The first accused is running a Soda factory in the name and style of 'Bharat Soda Factory' at No.7B Uraiyurpakkupettai, Trichy town. The second accused is the seller under the first accused. On 26.9.94 at about 10.45 a.m, the second accused in a try-cycle carried carbonated water in sealed bottles with label of Bharat Soda Factory for sale. When he was nearing the door No.141, Melappulivar salai, P.W.1 intercepted him and introduced himself and informed his proposal for taking sample of carbonated water kept for sale to the public. He called one Kalik to be the witness who has agreed to be the witness for taking the sample. Form VI (Ex.P.1) notice was served upon the second accused who also signed along with witness.
3. By paying Rs.30.60 under Ex.P.2-cash receipt, P.W.1 purchased nine bottles of carbonated water of the same variety. Thereafter, out of nine bottles, he made three packets containing three bottles each and sealed as per procedure. He also obtained signature of the second accused over packed bottles. Under intimation to the Local Health Authority, one sample packet along with form VII was sent to the public analyst. Remaining two samples were handed over to the local authority, who received the same under acknowledgment. Ex.P-4 is the acknowledgment. Ex.P-5 is the form VII copy. Ex.P-6 is the form I containing specimen seal. Ex.P.7 is the acknowledgment for sending one bottle for public analyst. Similarly, on 26.9.1994, the supervisory Manager Jeyapaul served a copy of form VI to the first accused on 27.9.1994. He has also inspected the factory on 27.9.1994. Ex.A-8 is the acknowledgment of the first accused.
4. He has also received form III Public analyst report (Ex.A-9). The sample was found to be adulterated containing saccharin and coloured substance. This was not referred in the label. Such act amounts to misbranded good. The report also contained such particulars. After receipt of the analysis report, P.W.1 obtained necessary sanction from Public Health and Preventive Medicine to prosecute the accused. P.W.1 laid a compliant against both accused for the offence under Section 7(ii) and 16(1)(a)(i) read with 2(9)(k)and Rule 24, 42(zzz)(1) and 47 of the PFA Act and Rules. Ex.P.10 is the consent letter. He also served notice along with form III as per Section 13(2) of the Act to both the accused. Exs.P.13 and P.14 are the acknowledgment of the first and the second accused. Ex.P.12 is the copy of the form III. Ex.P.11 is the copy of notice under Section 13(2). Notice under Section 13(2) was served upon the accused along with form No.III after filing a complaint against the accused before the Court.
5. Prosecution examined one witness and marked 14 exhibits to prove the guilty act of the accused. No oral and documentary evidence let in on the side of the accused.
6. The trial Court after analysing the evidence found that the accused was not guilty for the charges and acquitted him as P.W.1 was not a competent to lay a compliant in view of the principle laid down in the decision reported in 1987 L.W.Crl. 340( STATE BY FOOD INSPECTOR, TIRUNELVELI MUNICIPALITY REP.BY PUBLIC PROSECUTOR v. MUTHU AND ANOTHER). Against which, the present appeal has been filed by the state on the following grounds: a. The trial Court erred in completely omitting to discuss the evidence let in the case, and proceeding to acquit the accused on the ground that the Food Inspector was not competent to launch prosecution. b. So much so, the trial Court failed to consider the principle laid down by the apex Court in the decision reported in 1996 SCC Criminal 254 (SURESH H. RAJPUT v. BHARTIBEN PRAVINBHAI SONI AND OTHERS). c. The trial Court failed to note that the Food Inspector has complied with all the requirements in taking the sample as per the provisions of the PFA Act and Rules.
d. The reasoning of the trial Court in acquitting the accused are not at all sound and convincing.
7. Heard Mr.P.Rajendran, learned Government Advocate appearing for the appellant and Mr.C.Muthu Senavan, learned counsel appearing for the respondent.
8. The learned Government Advocate reiterated the submission raised in the grounds and submitted that the reasoning of the trial Court in acquitting the accused on the ground that the Food Inspector, namely, P.W.1 was not competent to lay a complaint cannot sustain in view of the G.O.M.S.No.571 dated 15.4.1991. He further contended that the decision relied on by the trial Court was not related to G.O.M.S.No.571 dated 15.4.1991 referred above. The trial Court has also not taken note of the said Government order resulting in miscarriage of justice.
9. The learned counsel for the respondent/accused contended that the trial Court was right in acquitting the accused based on the decision referred above as the Food Inspector not stated anything about the G.O.M.S.No.571 dated 15.4.1991 and therefore, the judgment of the trial Court cannot be faulted with.
10. The learned Government Advocate relied on the decisions reported in (1) 1996 Supreme Court Cases (Cri) 254 (SURESH H. RAJPUT V.BHARTIBEN PRAVINBHAI SONI) (2) 1997 (1) MWN (Crl.)349 (STATE BY FOOD INSPECTOR, ERODE MUNICIPALITY v. SUNDARAM) and (3) 1997 (2) MWN (Cr.89) (STATE BY FOOD INSPECTOR, DINDIGUL MUNICIPALITY REP.BY THE PUBLIC PROSECUTOR v.NARAYANA SAMY) to sustain his claim. He also relied on the unreported decision dated 17.2.2004 in Criminal Appeal No.375 of 1997 to sustain his claim.
11. I have gone through the decisions reported in 1987 LW (Crl.) 340, to find out whether the principles laid down therein is applicable to the facts on hand. In the said case, there was no reference at all about the G.O.M.S.No.571 dated 15.4.1991. In this context, it is useful to refer the Government orders relating to conferment of power on the Food Inspectors for taking sample and prosecuting the case under the act, in case the Food Inspector found that the sample taken for public analyst found to be adulterated within the meaning of the said act.
I. G.O.M.S.No.3591, Health dated 26.11.1955 as amended in G.O.Ms.No.1638 Health dated 16.5.1956 and in 1277, Health dated 2-6-72 reads as follows: In exercise of the powers conferred by section 8 of the Prevention of Food Adulteration Act, 1954, (Central Act 37 of 1954), the Governor of Madras hereby appoints the following persons as Public Analysts for the purpose of the Act, with effect from the 24th September, 1955 for the local areas indicated against each:-
In the said Notification for items (1) (2) and (3) and the entries thereto, the following items and the entries shall be substituted namely:- 1. The Government Analyst, King Institute, Guindy, Madras, for Tamilnadu excluding the Corporation of Madras, but including all premises belonging to the Railway in the Tamil Nadu.
2. The Public Analyst, Principal Public Health Laboratory Coimbatore, for the five districts, of Coimbatore, the Nilgris, Salem, Dharmapuri at Tiruchirappalli.
3. The Public Analyst, Corporation of Madras for the Corporation of Madras excluding all premises belonging to te Railways in the City of Madras. 4. The Deputy Government Analyst, King Institute, Guindy, Madras for Tamil Nadu excluding the Corporation of Madras for Tamil Nadu excluding the Corporation of Madras, but including all premises belonging to the Railways, in Tamil Nadu. Food Inspector- The State Government has appointed the following as Food Inspector for local areas in the State (G.O.Ms.No.3591,Health, dated 26.11.1955) as subsequently amended.
II. G.O.Ms.No.3591, Health, dated 26.11.1955 In exercise of the powers conferred by Section 7 of the Prevention of Food Adulteration Act, 1954 (Central Act 57 of 1954) Governor of Madras hereby appoints as Food Inspector, for the purpose of the Act, with effect from 24th September 1955.
(a) in the Corporation of Madras, the Health Officer, Corporation of Madras, (the Assistant Health Officers) and the persons under their control hitherto called as "Food Inspectors" ( and the Sanitary Inspectors). (b) in the case of a Municipality having a Municipal Officer, the Municipal Health Officer and the Sanitary Inspectors under his control. (c) In the case of Municipality not having a Municipal Health Officer, the Commissioner of the Municipality and the Sanitary Inspectors Under his control. (d) in the case of a Panchayat or township having a Health Officer in its employ the Health Officer and in other cases the Sanitary Inspector concerned. (e) in the case of Panchayat or a township not having a Health Officer, or a Sanitary Inspector in its employ, the Executive Officer of the Panchayat or the township if he had acted as Food Inspector prior to Ist June, 1959 or the Health Inspector concerned.
(f) in the case of a cantonment, the Sanitary Inspector or Sanitary Inspectors of the Cantonment, as the case may be. (g) in the case of any area in a district not comprised within the jurisdiction of a Municipality a Panchayats or township or Cantonment the Health Inspecor of the Range concerned and
(h) in the Wellington Cantonment Board, the Assistant Health Officer of Wellington Cantonment Board
(i) in the case of a local body not having a Health Officer or a Sanitary Inspector in its employ or the Executive officer concerned not having acted as Food Inspector prior to Ist June 1955, the Health Inspectors of the Primary Health Centres having jurisdiction over the local area concerend, till such time as Sanitary Inspectors are appointed by the Local body concerned. All district Health Officers have been appointed as Food Inspectors by the State Government.
III.G.O.Ms.No.1309, Health, dated 10th May 1963. Notification
In exercise of the powers conferred by Sub-Section (1) of Section 9 of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954), the governor of Madras hereby appoints all District Health Officers as Food Inspectors for the purpose of the said Act with effect from the date of issue of this notification in the Fort St.George Gazettee, and they shall have jurisdiction within the local areas in respect of which they hold office. Railways: The Central Government has appointed Railway Medical Officers and Railway Health Inspectors as Food Inspectors under the Act. D.P.H. LETTER R.NO.63082-UN (4)/70, DATED 27TH APRIL 1970 COMMUNICATING COPYO F LETTER NO.69/H-101 (II) DATED 11TH FEBRUARY 1970 FROM THE SECRETARY, RAILWAY BOARD, NEW DELHI, TO THE SECRETARY TO GOVERNMENT. GOVERNMENT OF TAMIL NADU
Prevention of Food Adulteration Act, 1954- Authorisation of Food Inspectors to Institute Prosecutions under Section 20 (1) - Amendment to Notification - Issued -
HEALTH INDIAN MEDICINE & HOMOEOPATHY & FAMILY WELFARE DEPARTMENT G.O.Ms.No.571 Dated the 15th April, 1991, 2, Chithirai,Prajorpathi, Thiruvalluvar Aandu 2022. Read:-
1.G.O.Ms.No.1861, Health Education and Local Administration Department dated 06.6.56.
2. From the Director of Public Health & Preventive Medicine D.O.R.No.135713/PFA/SS/90 Dated 6.9.90.
The appended notification will be published in the Tamil Nadu Government Gazette.
(BY ORDER OF THE GOVERNOR)
G.JAYARAMAN DEPUTY SECRETARY TO GOVERNMENT
In exercise of the powers conferred by Sub-section (1) of Section 20 of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954), the Governor of Tamil Nadu hereby makes the following amendment to the notification issued with the Health, Education and Local Administration Department Notification No.155 published at page 35 of part I-A of the Fort St.George Gazette, dated the 20th June, 1956.
In the said notification, for the expression "Food Inspectors appointed" the expression "Food Inspectors appointed, from time to time," shall be substituted.
Sd/- SECTION OFFICER. /True copy/
V.Prevention of Food Adulteration Act, 1954 - Authorisation of Joint Director of Public Health and Preventive Medicine (PFA) Office of the DPH & PM to institute prosecution under Section 20 (1) - Notification - Issued - ----------------------------------------------------------- HEALTH AND FAMILY WELFARE (AB) DEPARTMENT.
G.O.(MS).NO.299 Dated:10.5.1995 i) G.O.Ms.No.1861, Health Education and L.A. Department, Dated 6.6.1956. ii) G.O.Ms.No.571, Health & Indian Medicine & Homeopathy and Family Welfare Deptt., Dated 15.4.1991.
iii) from the Director of Public Health and Preventive Medicine Lr.R.No.24232/PFA/SI/95 Dated 3.3.94 and 14.7.94. .....
At present the Food Inspectors are empowered to launch prosecutions in Prevention of Food Adulterated cases. The Director of Public Health and Preventive Medicine has stated that an average 1200 reports of adulteration are sent to various local bodies by the Food Analysis Laboratory for launching prosecutions every year. The local Health Authorities viz., Medical officers of Public Health Centres Commissioners of Municipalities Health Officers of local area do not send the Form III reprots promptly to Food Inspectors and this results in considerable delay in launching prosecution by the Food Inspectors. Only 50 of the adulterated reports are prosecuted and the remaining 50% of the cases, prosecution are not launched or launched belatedly and some of the adulteration reports are not taken for prosecution. In many prevention of Food Adulteration cases, the Public Prosecutor has observed that there was considerable delay in launching prosecution and this is the main reason for acquittal of the accused in Prevention of Food adulteration cases. Even appeals in such cases are not at all entertained as Public Prosecutor gives opinion that these cases are not fit for appeal. Besides during the visit of the Assistant Director of Health Services (Prevention of Food Adulteration), New Delhi to this State, she has stated that powers vested with Food Inspectors for launching of prosecution have to be posted with the higher authorities. The same views have also been shared by the Director General of Health Services, New Delhi while review the exercise of Prevention of Food Adulteration lot 1954 in April, 1993. He had commented that the Food Inspectors are only the investigation officers of the cases and powers delegated to them for launching prosecution are not just and reasonable and such powers should be vested with higher and senior level authorities. The Director of Public Health and Preventive Medicine has suggested that the Joint Director of Public Health and assistant of Government Analyst, Guindy and Legal Advisor of her Directorate may be empowered to sanction prosecution in Prevention of Food Adulteration cases, by amending the notification suitably.
2.The Government accept the suggesion of the Director of Public Health and Preventive Medicine. The appended notification will be published in Tamil Nadu Government Gazette.
(BY ORDER OF THE GOVERNOR)
S.RAMASUNDARAM ADDITIONAL SECRETARY TO GOVERNMENT To
1.The Director of Public Health and Preventive Medicine, Madras - 6. 2.The Joint Director of Public Health and Preventive Medicine, Madras 3.The Accountant General, Madras -13
4.The Accountant General, Madras-35(by name)
5.The Pay and Accounts Officer, Madras -35
6.The Director of Stationery and Printing, Madras -2 /forwarded /by order/
The facts on hand related to the offence dated 26.9.1994 much later to the notification of the fourth Government order referred above. In fact the finding rendered in this case is only on 10.1.1995. In such circumstances, the trial Court ought to have taken cognizance of the fourth Government order referred above, while deciding the case on merit to find out whether the Food Inspector got any power to launch the case under the said act.
12. The learned counsel for the respondent accused contended that since there is no reference made by the Food Inspector relating to the fourth Government order, it is not open to the learned Government Advocate to rely on the said fourth Government order against the accused. He further stated that without relying on the said G.O., P.W.1 given evidence to sustain the claim of the prosecution regarding his power, when the matter is pending before the trial Court. In such view of the matter, it is not open for the prosecution to rely on the said G.O in the High Court to sustain a case against the accused. The contentions of the learned counsel for the respondent/accused is bereft of any merit in view of the fact that all the G.Os referred above should have been known to the parties to the proceedings. Ignorance of law is not an excuse. Even if the prosecution not submitted its arguments based on the G.Os referred above, it will not prevent the trial court to rely on the same, which was in force on that day and render a finding on that basis. Even in the decisions relied on by the trial Court, it is found that the fourth Government order referred above, was not taken note of while rendering a finding against the prosecution.
13. Now, let me look into the decision cited by the learned Government Advocate for better appreciation of the case. The principle laid down by the apex Court in the decision reported in 1996 SCC (Cri) 254 (SURESH H.RAJPUT AND OTHERS v. BHARTIBEN PRAVINBHAI SONI AND OTHERS) are as follows: "The analysis report which was placed before the Local (Health) Authority and the other pertinent material in connection therewith have been placed before the sanctioning authority. After going through the material, sanction was granted for laying the prosecution. At that stage, it was not for the sanctioning authority to weigh the pros and cons and then to find whether the case could end in conviction or acquittal or the adulteration was abnormal or marginal etc. All these are not matters for the sanctioning authority to weigh and to consider the pros and cons of the case before granting sanction to lay prosecution against the respondents."
2. The Magistrate illegally proceeded on the assumption that the Food Inspector did not have training for required number of days and that, therefore, he was not competent to take the samples. The qualifications of the Food Inspector cannot be challenged in collateral proceedings. What is material is whether the Food Inspector had taken the samples in accordance with the provisions of the Act or the rules made thereunder. In case the Court finds that if he committed any contravention, what would be its effect on the prosecution is a matter to be considered but his qualifications cannot be looked into when he lays the prosecution for adulteration of the articles of food under the Act.
14. In fact, in the subsequent decisions of this Court in (1) 1997 (1) MWN (Crl.) 349 (STATE BY FOOD INSPECTOR, ERODE MUNICIPALITY v. SUNDARAM) and (2) 1997 (2) MWN (Cr.) 89 ( STATE BY FOOD INSPECTOR, DINDIGUL MUNICIPALITY REP.BY PUBLIC PROSECUTOR v. NARAYANA SAMY), consistent view had been taken with regard to the Government Order issued in the year 1956, applicable to all the Food Inspectors even if they were appointed subsequent to the issuance of G.O.M.S.No.1861- Also, by virtue of power conferred under Section 20 all the Food Inspector are competent to file a complaint".
15. In the first decision, learned single Judge elaborately referring to various Government Orders has held thus:
"As regards the first ground, this point has been already decided in several decisions earlier holding that the Government Order issued in the year 1956 would be applicable to all the Food Inspectors though they have been appointed subsequently. Moreover, by virtue of the (power) conferred under Section 20 of the Act, all the Food Inspectors are competent to file a complaint against any person, who is involved in the offence under the provisions of the Prevention of Food Adulteration Act".
16. It is also held in the unreported decision (dated 17.2.2004 in Crl.A.No.375 of 1997) that P.W.1, Food Inspector is competent to take sample and launch the prosecution.
17. P.W.1 - Food Inspector is thus competent to take the food sample and also launch the prosecution. Since the finding of the trial Court that P.W.1 - Food Inspector is not authorised suffer from serious and substantial error, the order of acquittal is to be necessarily interfered with and the matter is to be remitted back to the trial Court for fresh consideration.
18. The learned counsel for the accused relied upon 1998 SCC (Crl.) 1003 (STATE OF MAHARASHTRA v.GOPAL PRASAD GOVIND PRASAD AGARWAL) and contended that the Supreme Court declined to interfere with the Order of acquittal though it was found to be on the basis of erroneous finding and absence of proper sanction for prosecution. The case before the Supreme Court arose out of an order of acquittal after 20 years and relating to sanction and in that view of the matter, the Supreme Court found that though the acquittal was on the basis of erroneous finding, declined to interfere with the order of acquittal by remitting it back. But the case in hand stands on a different footing. The order of acquittal is mainly based upon the Misconception of Government orders - "that P.W.1 was not authorised to file the complaint". That patent erroneous finding cannot be allowed to stand and need to be necessarily interfered with. The other points raised by the accused is open to him to raise the same before the Court when the matter is remitted back to the trial Court.
19. For the reasons stated above, the order of acquittal by the Judicial Magistrate No.I, Trichirappalli in C.C.No.1282/94 (dated 10.1.1996) is set aside. The matter is remitted back to the trial Court for fresh disposal to decide the issue only on fact available on record.
20. It is further observed that the trial Court has to render afresh finding only on the question of fact within the materials available on record after giving notice to the accused. If the accused evaded service, even in the absence of the accused, trial Court can render judgment with the available materials on the following contingency.
1. in case of acquittal
2. In case of conviction intending to give only minimum sentence contemplated under the penal section as the question of giving opportunity to hear the accused regarding sentence under Section 248 (2), does not arise at all in view of the principles laid down in the rulings reported in 1977 (3) SCC 218 (TARLOK SINGH v. STATEOF PUNJAB) (2) 1977 (2) SCC 131 (NIRPAL SINGH v. STATE OF HARYANA) (3) 2004 CRL. L.J. 907(MOTILAL v. STATE OF MADHYAPRADESH) (4) 2000 CRL.L.J. 92 ( STATE OF GUJARAT v. GANDABHAI GOVINDBHAI) and (5) 2000 CRL.L.J. 3099 (KANTILAL V.RAMANBHAI)
3. In case of giving enhanced sentence, if the case ended in conviction, the presence of the accused is necessary.
The Judicial Magistrate No.1,
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