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State by v. Thambidurai - Criminal Appeal No.302 of 1999 [2007] RD-TN 378 (29 January 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 29/01/2007

CORAM

THE HONOURABLE MR.JUSTICE J.A.K.SAMPATHKUMAR

Criminal Appeal No.302 of 1999

State by

Food Inspector

Madurai Corporation,

Madurai.

Rep.by Public Prosecutor

High Court, Madras. .. Appellant vs.

Thambidurai .. Respondent Appeal under Section 378 Cr.P.C. against the judgment and order of acquittal passed by the Judicial Magistrate, Periyakulam in S.T.C.No.842/97 dated 27.10.1998.

For Petitioner : Mr.P.Rajendran

Govt.Advocate

For respondent : Mr.Balasubramanian :JUDGMENT



This Criminal Appeal is filed against the Judgment dated 27.10.1998 in S.T.C.No.842 of 1997 on the file of the Judicial Magistrate, Periyakulam 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(i) and 16(i)(a)(1) read with 2(1a)(a)(m) rule 5 of PFA Act and acquitted him under Section 248(1)Cr.P.C.

2.The brief facts of the case are as follows: P.W.1-Food Inspector of Madurai Corporation. As per Government orders 1753/17.7.1975, 1861/6.6.1956, 571/15/4/1991 and 299/10.5.1995 P.W.1 was authorised to take food sample under the Act.

2.1. On 23.12.11996 at about 10.00 a.m., P.W.1 along with his assistant went to shop No.13, in the name of Lakshmi Karthika store situated at First Street, Kanpalayam for the purpose of taking samples meant for sale for public Analyst. The accused being the owner of the shop was doing business. P.W.1 introduced himself as Food Inspector and informed his proposal for taking sample of ground nut oil meant for sale. He purchased 750 grams of ground nut oil for Rs.26.25/- and obtained a cash receipt for the same. Ex.P.3 is the cash receipt. Ex.P.10 is the Government order. Ex.P.4 is the Form 6. 2.2. Thereafter, he divided the sample into three equal parts and put the same in three empty glass bottles corked the same as per the rules and affixed his signature and also obtained signature of the accused over it. He also obtained statement from the accused. Ex.P.5 is the statement of the accused. He also gave a copy of the report and obtained acknowledgment from the accused. Ex.P.6 is the acknowledgment. Then, he affixed specimen seal impression in form VII and sent a copy of the same along with a sample bottle for public analyst. Ex. P.8 is the form VII. Ex.P.7 is the copy of the report. He also informed about the taking of sample to the local Health authority. Ex.P.9 is the information given to the local Health authority. He sent a sample bottle to the public analyst through Southern roadways lorry service. Ex.P.10 is the lorry receipt.

2.3. Thereafter, he sent a copy of form VII containing specimen seal impression along with lorry receipt to the public analyst. Ex.P.11 is the postal receipt. Ex.P.12 is the acknowledgment. Ex.P.13 is the white paper containing specimen seal impression. He sent remaining two sample bottles along with form VII to the local authority and obtained acknowledgment for the same. Ex.P.14 is the acknowledgment. He also received analysis report under Form III. Ex.P.15 is the Form III. He found that the sample subjected for analysis was adultered, not fit for human consumption. Therefore, he filed a complaint against the accused under the Act. Thereafter, he sent a notice to the accused under Section 13 (2) of the Act along with form III and obtained acknowledgment for the same. Ex. P.17 is the notice. Ex.P.18 is the acknowledgment.

3. Petitioner examined as P.W.1 and marked Exs.1 to 18 to prove the guilty act of the accused. No oral and documentary evidence let in on the side of the accused.

4. The trial Court after analysing the evidence found that the accused was not guilty for the charges and acquitted him accordingly. Against which, the present appeal has been filed by the state on the following grounds. a). The Court below in acquitting the accused on the ground that the subject matter of oil not stirred before taking the sample. The oil is not homogeneous mixture like milk, therefore stirring of oil is not necessary. b) By reading of Rule 19 and 20 of the Prevention of Food Adulteration Rules 1955 it clearly show that "Preservatives need not be added to Edible samples at the time of taking sample by Food Inspector for the purpose of analysis.

c) The trial Court ought to have seen that "Rule 59 of Prevention of Food Adulteration Rules prescribes that list of antioxidants that can be added to Edible Oils and Fats by the manufacturers so as to increase the shelf life of such oils and fats"and the non adding of antioxidants is not fatal to the prosecution.

d) The trial Court erroneously held that Section 10(7) of Prevention of Food Adulteration Act had not been complied with. So much so, the trial Court erroneously held that the sanction was accorded due to non application of mind by the local Health authority. Therefore, the judgment of the trial Court in acquitting the accused is liable to be set aside.

5. Heard Mr.P.Rajendran, learned Government Advocate appearing for the appellant and Mr.M.Balasubramanian, learned counsel appearing for the respondent.

6. The learned Government Advocate reiterated the contention raised in the grounds of appeal and submitted that the finding of the trial Court is liable to be set aside.

7. The learned counsel for the respondent/accused contended that the trial Court analysed the evidence in depth and after taking note of the settled position of law of this Court and the Apex Court acquitted the accused and therefore the finding of the trial Court is not liable to be set aside.

8. Upon hearing the rival claims, the points for consideration are as to whether

1. the non application of mind while according sanction is fatal to the prosecution?

2. the sample oil, subject matter of the case requires adding preservative under Rule 19 and 20 of the prevention of Food Adulteration Rules?

3. the Food Inspector has complied with the conditions of Sections 10,7 and 20 of the Prevention of Adulteration Act before while taking sample.

4. the finding of the trial Court in acquitting the accused is in order? 9. POINTS 1 and 4

The facts on record would show that the Local Health Authority has granted sanction without analysing the materials placed before him. The learned Government Advocate has submitted that the sanction of prosecution without applying mind by the competent authority will not be fatal to the prosecution, as such act is curable. He also relied on the decision in PUSHPALATHA AND OTHERS v. R.LAKSHMI, FOOD INSPECTOR, COIMBATORE (1993 Madras Law Journal Reports (Criminal) page 708) in support of his claim. I have gone through the said ruling. In fact this ruling is against the submission of the learned Government Advocate. The principle laid down in the said ruling reads as follows: "14. A conjoined reading of Sec.20(1) of the prevention of Food Adulteration Act would clearly envisage that the duty of the Local Health Authority or the competent authority in according its sanction for prosecution would not amount to or cannot be taken as an empty formality but however, it was clearly and demonstrably made out by the Courts of Law in this country that the intention of the legislature in providing for the competent authority to sanction to launch the prosecution for offences under the Act, to be exercised with due care and caution, which would mean, that they should go into all the materials and records placed by the Sanitary Inspector pertaining to the relevant facts constituting the offences and then only, on being satisfied with the materials underlying the records, prima facie atleast, the competent authority has to record its sanction and it cannot be taken that it has to accord its sanction so mechanically without applying its mind and this process, has been in built in the above section for the simple object that vexatious launching of the prosecution is to be avoided at any cost and that was the one and only reason, the according of sanction under Section 20(1) of the Act has been provided in the enactment. Thus, it is the well settled judicial view, that the Local Health Authority while according its sanction to its sanitary Inspector or any other person to launch the prosecution against any person, must apply its mind to all the relevant materials and papers placed before it and on being satisfied with the prima facie against the person against whom the offence is alleged, then for the reasons expressly to be stated, he must accord the sanction for prosecution. Otherwise, it goes without saying, that the sanction accorded is bad in law and not in compliance with the legal mandate inbuilt in the above section. I have carefully perused the so-called sanction accorded by the Health Officer and Local Health Authority on 4.7.1986 in six words - sentence as above stated. The so- called sanction does not even visualise any perusal of the records produced before him, nor even the competent authority has satisfied with the prima facie materials available in the records placed before him in according the sanction. In the light of the above legal laches pointed out by the learned counsel Mr.Gopinathan, I am fully satisfied to hold, that the sanction accorded in this case, is bad in law and is clearly in the teeth of Section 20(1) of the Prevention of Food Adulteration Act and accordingly, no prosecution can be launched."

In fact, this Court followed the legal ratios enunciated in the following rulings and laid down the above principles of law: " A.K.Roya v. State of Pubjab, (1986) 4 S.C.C. 326; 1986 S.C.C. (Crl) 443 ; (1986) 3 F.A.C.66 (1986) 2 A.P.L.J. (S.C.) 34; 1986 Crl.L.J. 2097; A.I.R. 1986 S.C.2160 Chunni Lal v. State, 1974, Crl. L.J. 13 by a single Judge of the Allahabad High Court State v. Appuswami, 1980 L.W.(Crl.) 196 (a ruling of this Court) Ramandhal Srivabhai Prajapati v. State of Gujarat , (1991) 1 E.F.R. 547 ( a ruling of the Gujarat High Court), Shyam Lal v. State (1991) 2 E.F.R. 277 ( a ruling of the Delhi High Court), Adda Kasivisweswara Rao v. State of A.P.(1991) 2 E.F.R. 416)"

In fact, the trial Court has taken note of the guidelines of this Court and Apex Court and rightly came to the conclusion that sanctioning prosecution due to non application of mind by the sanctioning authority is fatal to the prosecution and accordingly, acquitted the accused. The finding of the trial Court is in order and does not require any interference. Hence, these points are answered accordingly.

10. Points 2 and 3

The subject matter of the commodity is one of the groundnut oil. It is the specific case of the prosecution that adding preservative to the groundnut oil while taking sample by the Food Inspector does not warrant under Rule 19 and 20 of the Prevention of Food Adulteration Rules as the preservative was added to edible oils by the manufacturer himself to increase the shelf life of such oils and fats and therefore the finding of the trial Court in acquitting the accused on the ground that the preservative to sample oil was not added by relying on the decision reported in 1993 M.W. Crl. Page 55 cannot sustain. 10.1. In view of the finding rendered at Points 1 and 4, I am of the view that consideration of these points does not arise for consideration. Hence these points are answered accordingly.

11. In the result, appeal fails and the same is dismissed. Parties have to bear their cost.

To

The Judicial Magistrate

Periyakulam


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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