Karnataka High Court
H.L. Nellashekara vs The Food Inspector Primary Health ... on 16 December, 2005
Equivalent citations: 2006 CriLJ 1561, 2006 FAJ 213, ILR 2006 KAR 933, 2006(2)KCCR792
Bench: N Veerabhadraiah
1. This revision is by the accused, being aggrieved of the judgment in Criminal Appeal No. 19/1992 by the Learned I Additional Sessions Judge, Mysore, dated 10.05.2001 dismissing the appeal by confirming the conviction and sentence passed in C.C. No. 954/1988 by the Learned Munsiff and J.M.F.C., Hunsur, dated 24.03.1992 sentencing him to undergo R.I. for a period of 6 months and to pay a fine of Rs. 1,000-00, in default to undergo R.I. for one month.
2. The brief facts of the case are as follows:
The accused Sri H.L. Neelashekara, a petty merchant, Hanagodu village, Hunsur taluk, was charge sheeted for the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act" for short) alleging that when P. W. 1 -K. Raghavendra visited the shop of the accused on 22.12.1986 at about 2.00 p.m. found the accused storing and selling adulterated nigerseed oil and that the Inspector-P.W.1 purchased 375 grams of nigerseed oil. In the presence of P. W.2 and others, prepared a seizure mahazar-Ex.P5 by making 3 sample pockets of nigerseed oil and the sample pockets were sent to public analyst for report. After receiving report-Ex. P7, P. W.1-K. Raghavendra obtained sanction as per Ex.P8 and filed a complaint Ex.P9 for contravention of Section 16(1)(a)(i) of the Act.
The Learned Munsiff and J.M.F.C, secured the presence of the accused, framed charges for the offence under Section 16(1)(a)(i) of the Act. The accused pleaded not guilty and claimed to be tried. The Learned Munsiff and J.M.F.C, recorded the evidence of P. Ws. 1 to 3, marked Exs.P1 to P11 (a) and produced M.O.I-sample bottle. The statement of the accused was recorded underSection 313 Cr.P.C. The defence is one of total denial. However, the accused did not choose to lead any defence evidence. The Learned Munsiff and J.M.F.C, for the reasons recorded in his Judgment, convicted the accused for the offence under Section 16(1)(a)(i) of the Act and sentenced him to undergo R.I. for a period of 6 months and to pay a fine of Rs. 1,000-00. The said conviction and sentence was questioned in Criminal Appeal No. 19/1992 before the Learned I Additional Sessions Judge. The Learned I Additional Sessions Judge dismissed the appeal by confirming the sentence. It is this Order of conviction and sentence, which is questioned in the present revision.
3. Learned Counsel Sri. GK. V. Murthy firstly submitted that the Public Analyst Report is not with parameters of the table in respect of 4 items, whereas from the test conducted it shows that the other requirements are made out from the very report of the analyst. Further submitted that the public analyst has not explained the details of the method adopted in conducting the test and giving the report-Ex.P7. Also submitted that as per Rule 18 of the prevention of Food Adulteration Rules 1955 (hereinafter referred to as "the Rules" for short) it is mandatory on the part of the Inspector to send the seal separately, which is not sent. P.W.3- B.T. Subbaiah, Public Analyst in his evidence has clearly stated that he did not receive the seal separately. Therefore, when the Provision of the Act is not complied, the very conviction of the accused is not sustainable. Further submitted that P. W.3 who has conducted the test has not deposed before the Court. Therefore, the report-Ex.P7 itself cannot be acted upon. Also submitted that mahazar witness-P. W.2 has given a go by to the mahazar prepared. The said fact also shows doubt regarding purchase of the nigerseed oil and preparing 3 samples. The Learned Counsel in support of his submissions relies on the following decisions;
1. State of Maharashtra v. Rajkaran Supreme Court on Food Adulteration Cases, Page 918
2. Dhroov Kumar v. Nagar Swasthya Adhikari, Kanpur and Ors., Prevention of Food Adulteration Cases 1998(1), Page 72
3. Municipal Council, Kote v. Kanhaiya Lal Prevention of Food Adulteration Cases 1990(2), Page 378
4. State v. Arjun Das 2005(2) Food Adulteration Cases, Page 77
5. State of Karnataka v. Dolphy Albuquerque 1983(2) Karnataka Law Journal, Page 481
6. Kattamasu Venkata Pulla Rao v. State of Andhra Pradesh 1990 Prevention of Food Adulteration Cases, Page 28
7. Kanan v. State of Kerala 1992(1) Prevention of Food Adulteration Cases Page 337 and submits that the evidence on record is not conclusive proof so as to hold that the nigerseed oil is adulterated with any foreign object. Also submitted that merely because of the reason that some percentage is less, on chemical test itself is not sufficient to hold that the nigerseed oil is an adulterated one.
Lastly submitted that the Learned Munsiff and J.M.F.C., and the Learned I Additional Sessions Judge have not taken note of the Provisions of Rule 18 of the Rules, which is mandatory and therefore the Judgement of conviction and sentence passed by the Trial Court and confirmed by the Learned I Additional Sessions Judge suffers from infirmities. Accordingly, prayed to allow the revision by acquitting the accused and to set aside the conviction and sentence passed.
4. Learned Government Pleader Sri. C. Ramakrishna submitted that the evidence of P.W.I- K. Raghavendra, Food Inspector, evidences the fact that he suspected about the adulteration in the nigerseed oil. Therefore, he purchased 375 grains and that in the presence of panch witnesses he prepared 3 samples. After returning to his office at Hunsur, he sent one sample with sample seal under registered post-Ex.P6. Therefore, submits that the sample as well as the seal were sent. Also submits that merely because of the reason that the sample was not sent separately itself does not go to the root of the presecution case so as to interfere with the concurrent finding of the Courts below.
Lastly submitted that the evidence of P.W.3- B.T. Subbaiah, Public Analyst establishes the fact that he conducted the chemical examination and found that the contents of the nigerseed oil were not with the parameter of the table given under the Rules. Therefore, the conviction and sentence does not call for interference. Accordingly, prayed to dismiss the revision.
5. In the light of the submissions, the point for consideration that arises;
Whether the Learned Munsiff and J.M.F.C., Hunsur, is justified in convicting the accused and sentencing as above? if not suffers from infirmities and liable to be interfered with?
What Order?
6. It is not in dispute that the accused-H.L. Neelashekara is carrying on with petty business at Hanagodu Village, Hunsur taluk. It is in the evidence of P. W. 1-K.Raghavendra that he inspected the shop of the accused and suspected that the nigerseed oil is being found adulterated. According to his evidence, he purchased 375 grams of nigerseed oil by paying its price and that he divided 375 grams into 3 equal pockets in the presence of panch-witnesses as per Ex.P5 and returned to Hunsur office. According to him, he sent one sample pocket of 125 grams to the Public Analyst with seal-Ex.P4 by registered post as per Ex.P6.
7. That insofar as preparing of mahazar-Ex.P5, P.W.2-Krishna has given a go by to the case of the prosecution and not supported. Therefore, his evidence is of no avail to the prosecution. The evidence of P.W.3-B.T. Subbaiah who happened to be the Public Analyst, in his evidence has stated that he is working as Chief Chemist in the Office of the Public Health Institute, Food and Water Analysis Laboratory, Bangalore. The sample was received on 02.01.1987, whereas he examined the nigerseed oil on 31.01.1987 and on a chemical analysis, the nigerseed oil was found not according to the parameters and opined that it is an adulterated and issued report as per Ex.P7.
In the cross-examination, he has clearly admitted that he received only one parcel and that there was not description of any sample seal in Exs.P3 and P7 and denied the suggestion that he did not conduct any chemical analysis of the nigerseed oil.
8. Where there is a concurrent finding of both the Courts. Normally, the finding should not be disturbed unless the findings recorded are perverse, illegal or suffers from infirmity. It is in this background, this Court has to examine whether the evidence on record has been properly appreciated, if not liable to be interfered with. Before touching the evidence, the Court has to take note of certain provisions of the Act as well as the Rules.
9. Section 2(i)(ia), (a), (b) and (c) of the Act reads thus:
2. Definitions.- In this Act unless the context otherwise requires,-
(i) "adulterant" means any material which is or could be employed for the purposes of adulteration;
(ia) "adulterated"-an article of food shall be deemed to be adulterated-
(a) if the article sold by a vendor is not of nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substances or quality thereof.
Reading of the definition of adulteration and adulterated, if the quality is not of the same substance or the substance is of injurious in nature or is of inferior or cheaper substance or such quality were to be found, then it comes within the meaning of adulteration and can be said that such a substance or a quality or any other item have been adulterated.
Section 2(ia)(m) of the Act reads thus;
if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injuries to health:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.
Explanation.-Where two or more articles of primary food are mixed together and the resultant article of food-
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;
If the article seized were to be found that it is not fit the parameters of the Rules, then also it comes within the meaning of adulteration of such article. But, Section 2(ia)(m)(b) of the Act is an exception, wherein it makes clear that if such item is not injurious to health, it cannot be termed as adulterated. Therefore, for the purpose of basing a conviction it must be established that the article or food item seized was subjected to chemical examination and should clearly disclose such an item is adulterated by mixing with any foreign element.
10. In the present case, Rule 4 of the Rules is not applicable. The Rule that is applicable is 17 and 18 of the Rules. Rule 17 of the Rules provides manner of despatching a container of samples, whereas Rule 18 of the Rules reads thus;
18. Memorandum and impression of seal to be sent separately. -A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day.
It makes clear that when the sample has been despatched to the Public Analyst, it is mandatory that the seal so used has to be sent separately. In the present case, the evidence of P.W.3-Sri B.T. Subbaiah, Public Analyst has clearly stated that he received only one pocket. This shows that the seal has not been sent separately as required under Rule 18 of the Rules. It is on this point, the Learned Counsel relied on the case of STATE OF Maharashtra v. Rajkaran, (Supra) wherein while considering Rules 17 and 18 of the Rules, it is held that "the non-compliance with the scheme covered in Rules 17 and 18 of the Rules entitled the accused for an acquittal."
11. Similar is the position of law in the case of Kattamasu Venkata Pulla Rao v. State Of Andhra Pradesh (Supra) so also in the case of Municipal Council, Kota v. Kanhaiya Lal, (Supra). In the decision rendered by this Court in the case of State Of Karnataka v. Dolphy Albuquerque, (Supra) wherein at the end of para 3 it is observed thus:
It has rightly been held that what is stated in the form about the comparison cannot be read as substantive evidence and it is obligatory, like any other fact, for the prosecution to prove the seal on the container and the outer cover compared with the specimen received separately and the conditions of the seals thereon. It cannot be disputed that such evidence has not been adduced in this case.
It is clear from the decision supra that unless there is evidence to show that the seal on the container and the outer cover compared with the specimen received separately, it cannot be held that the seal was sent separately as required under Rule 18 of the Rules.
12. The present case also stand on the same footing wherein the seal has not been sent separately and thereby the mandatory requirement of Section 18 of the Act are not complied. On that account itself, that the accused ought to have been acquitted which has been lost sight by both the Courts below.
13. It is no doubt true that as provided under Appendix-"B" of the Prevention of Food Adulteration Rule Table, in respect of the nigerseed oil, A. 17.12 of the Rules reads thus:
A. 17.12-NIGER SEED OIL (Sargiya Katel) means the edible oil obtained by process of expressing clean and sound seeds of Guizotia abyssinica. It shall be clear and free from rancidity, suspended or other foreign matter, separated water, added colouring or flavouring substances, mineral or other oil. It shall conform to the following standards:-
Butyro- 61.0 to 65.0
refractometer
Reading at 40° C
Saponification
value 188 to 193
Iodine value [110 to 135]
Unsaponifiable Not more than 1.0
matter percent.
[Acid value Not more than 6.0
percent].
[Bellier Test 25° C to [29° C]
(Turbidity
temperature-Acetic
acid method)
When the nigerseed oil is subjected to chemical examination after processing it, the required standard has to be found as above. If it is not in conformity of the standard, it is said to be adulterated according to the contention of the Learned Government Pleader.
14. The Public Analyst report Ex.P7 is as follows;
1. B.R. Reading at 40° C 58.0
2. Saponification value 190.77
3. Iodine Value 112.15
4. Free falty acid as 0.10%
oleic acid
5. Belliers test 22.0C
That on a comparison of the table given at A. 17.12 and the Public Analyst Report Ex.P7 there is a slight variation in the meter reading of item No. 1 to the extent of 2-3 points. Similarly in respect of item No. 5, Belliers Test there is variation of about 3°C, whereas the other 3 items are found according to the table given in the Rules. In this regard in my opinion, it is not out of context, if it is said that the Court has to consider the potentiality and fertility of the land where nigerseeds are grown. If the lands are fertile, the percentage of fat materials will be more. Similarly, if the fertility of the land is poor, the crop of nigerseed cannot be expected to be with the same variety with contents are given in the table. That is also one of the factor which the Court has to take note off, as the other contents in the nigerseed are found according to the table.
15. That apart, the Public Analyst P.W.3- B.T. Subbaiah has not explained to the Court the method and procedure adopted by him in conducting the test to find out the required standard of nigerseed oil, which itself is defect in the prosecution case. When the method of test conducted is not explained to the Court, the report of the Public Analyst Ex.P7 cannot be relied and acted upon.
16. That apart, it is seen that the complaint came to be filed during the year 1987 and the matter is pending since last 18 years. Taking into consideration the cumulative circumstances and the evidence on record and the prosecution failing to prove the chemical analyst test and further the seal having not been sent as required under Rule 18 of the Rules, that the Judgment of conviction and sentence passed by the Trial Court confirmed by the Sessions Court are liable to be interfered with.
For the foregoing reasons, the revision petition is allowed. The Conviction and sentence passed by the Trial Court is set aside by acquitting the accused.
The bail bond of the accused stands discharged.
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