Whether accused can be acquitted in food adulteration case on the ground that intermediary vessel and spoon used for stirring the sample was not dry and clean?

Rule 14 is mandatory and if it is proved that mandate of this rule is not complied with, accused is 

entitled to acquittal - Not only the container in which the sample of food articles are taken, intermediary vessels, spoon etc. where food articles are handled for mixing, stirring or otherwise for the purpose of sampling also shall be clean and dry.
 The Prevention of Food Adulteration Act was enacted to curb and remedy the widespread evil of food adulteration and to ensure the availability of wholesome food to the people. It is well settled that the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote the object of the statute, prevent its subtle, evasion and foil its artful circumvention. Dealing with an article of food which is adulterated is punishable under Section 16(i)(a) of the Act. Apex Court has deprecated a narrow and pedantic construction of the Prevention of Food Adulteration Act, 1954 likely to leave the loopholes for the adulterant to escape. (See: Murlidhar v. State of Maharashtra (AIR 1976 SC 1929 at Page 1934 and Kisan v. State of Maharashtra (AIR 1977 SC 435). It is true that in criminal jurisprudence, there is presumption in favour of the innocence of the accused and it is the duty of the prosecution to prove the charges. But when prosecution has proved that sampling was done in accordance with law, it is for the accused to point out regarding the alleged defects in the case and the court has to decide the matter on the totality of evidence. Where there are two presumptions; and both are equally balanced, court must prefer that which is best according to facts and evidence on record. In this case there was not even a suggestion during trial that the intermediary vessel and spoon used for stirring the sample was not dry and clean. In Section 313statement also there is no such case for the accused. DW. 1 also did not state so. PW. 1, Food Inspector, has stated that he has taken the sample in accordance with law. In the absence of cross examination on this point and the evidence to the contrary, the official presumption regarding the regularity of official act can be drawn on the facts and the circumstances of this case. We see no ground to disturb the findings made by the court below in a revision petition.

Kerala High Court

Babu vs Food Inspector on 3 March, 2003

Equivalent citations: 2003 CriLJ 3812, 2003 (2) KLT 90

Bench: J Koshy, A Lekshmikutty

1. This Criminal Revision Petition is referred to the Division Bench by learned single Judge of this Court (Mr. M.R. Hariharan Nair, J.) with the following observations:

"It is evident therefore that there is conflict of views on the aspect whether want of definite evidence to the effect that the intermediary vessel used by the Food Inspector was dry and clean, by itself, would entitle the accused to get acquittal irrespective of the nature of the substance and the vessel used. I am of the view that this matter requires examination by a Bench."

The petitioner in this case was convicted for the offences under Sections 2(1a)(m) and 7(i) read with Section 16(i)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to "The Act"). In the decision reported in Food Inspector v. Harikumar, (1990 (1) KLT 36), a learned Single Judge of this Court held that Food Inspector is taking sample as part of the official Act and therefore presumption can be drawn that the sample of food article was taken by the Food Inspector in a dry and clean vessel. Counsel for the petitioner brought before us a large number of decisions including the decision in Koyakutty v. Food Inspector (2000 (3) KLT 693). According to the above decision, it is mandatory on the part of the prosecution to prove that intermediary vessel used also is dry and clean. It is the duty of the prosecution to adduce positive evidence to that aspect. In this case Food Inspector purchased 900 ml. of curd prepared from cow's milk from hotel where the accused was the Manager. The curd purchased was taken in a steel-vessel. It was mixed and stirred with a spoon and thereafter it was poured in bottles and sampling was done in accordance with rules. One such sample was sent to the Public Anlyst, who reported that the sample was adulterated. At the request of the accused second sample was also taken and sent to the Central Food laboratory and that sample also did not conform to the prescribed standard. Milk fat was only 3.3% instead of 3.5% and milk solids not fat was 5.5% instead of 8.5% as per Ext.P9. The contention raised by the accused/petitioner was that it was not proved by the Food Inspector by adducing positive evidence that intermediary vessel as well as the spoon used for mixing was dry and clean.

2.Facts found by the court below concurrently based on evidence need no interference in a revision petition and we are only considering the legal points. According to the learned counsel for the petitioner/accused Rule 14 is mandatory. Rule 14 of the Prevention of food Adulteration Rules (in short "Rules") reads as follows:

"14. Manner of sending sample for analysis - Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall he closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed."

A reading of the rule will show that it is only applicable to the bottles or jars or other containers wherein the samples are taken and sealed. But as a corollary to the above rule, intermediary vessels when sample was first taken also should be dry and clean to avoid contamination of the food articles. It is the argument of the accused that prosecution should adduce positive evidence to show that intermediary vessels used for mixing etc. are also dry and clean. There is no dispute for the proposition that intermediary vessel, when sample is handled before it is sealed in containers also should be dry and clean otherwise, it will affect the quality and standard of sample. The main question is whether the Food Inspector shall adduce positive evidence to that effect, even when in the pleadings or during trial, accused has no contention that the intermediary vessels were not dry and clean. Before answering the question, we may consider the evidence in this case.

3. PW. 1 is the Food Inspector. He deposed that when he visited the hotel, he saw 15 litres of curd made out of cows milk for sale in a 20 litres vessel. He asked for 900 gms. of curd and that was given after payment of cash and obtaining Ext.P3 bills. It was further deposed that it was stirred well, divided into three equal parts, filled in dry and clean bottles and sealed as per law. It is stated as follows:

Therefore, he has given positive evidence before the court that Rule 14 was complied with and the three bottles in which samples were taken were dry and clean. He also deposed that sampling was done in accordance with law. He has not specifically stated anything about the nature of intermediary steel vessel. In cross examination, no suggestion was also put to show that intermediary vessel and spoon used for stirring and mixing the sample curd was not dry and clean. But it came out in cross examination that the nature of the vessel was not stated in the mahazar. PWs.2 and 3 are mahazar witnesses, who admitted that they signed the recovery mahazar and nothing was asked or deposed by them in chief examination or cross examination regarding the intermediary vessels or spoon used for stirring. PW.4 is the Local (Health) Authority, who also deposed regarding the sending of samples etc. in accordance with rules. DW.1, one Pankajakshan was examined by the defence and he deposed that he wrote the bill as requested by PW. 1. He also did not depose anything about the nature of intermediary vessel used. No question was asked regarding that by the accused. Now we come to Section 313 Cr. P.C. statement. In Section 313 statement, there was no case for the petitioner that intermediary vessel or spoon used were not clean and dry. His only case in Section 313 statement was that the curd was not kept for sale and it was butter milk intended for internal use. The courts below concurrently found that the curd intended for sale in the hotel was taken as sample. It is a finding of fact based on evidence.

4. In 1990 (1) KLT 36 (supra) it was held that when an official act is shown to have been performed, there is the presumption that it was regularly performed until it is rebutted, that normally clean and dry vessel alone would be used by the Food Inspector. The above decision was overruled by the Supreme court in S. Harikumar v. Food Inspector (1995 SCC (Cri.) 933) on another point in that case. Supreme Court found that nowhere the Food Inspector has stated that the curd was stirred and churned before the samples were taken. Here in this case the Food Inspector gave evidence and deposed that it was properly stirred. There was no cross examination regarding that point. The Supreme Court did not disturb the observation of the learned single Judge regarding the official presumption. Number of unreported decisions by learned single Judges were pointed out before us. (D. John v. Food Inspector and Anr. (Crl. R. P. 120/94), K.P. Mathai v. Food Inspector and Anr. (Crl. R. P. 584/94)). In those cases, no contention was seen taken by the prosecution that intermediary vessel and spoon used for mixing were presumed to be dry and clean. Sampling was done as part of official duty and therefore presumption under Section 114 will apply.

5. On the pleadings and evidence in this case, the court below concurrently found that there was no evidence to show that the intermediary vessels were not dry and clean. Now we will come to the decision of the Division Bench reported in Food Inspector v. K. Co-op. M.S. Society Ltd. (1986 KLT 174). The above Division Bench decision supports the decision in 1990 (1) KLT 36. In paragraph 60 of the above decision it was observed by Mr. Bhat, J. which reads as follows:

60. Learned counsel contended that various steps taken in the process of sampling were not spoken to by the Food Inspector. It has not been contended before, us that the records in the case would not evidence that all the necessary steps had been taken by the food Inspector. A similar argument was repelled by one of us (Bhat, J.) in Food Inspector v. The Pirayiri Co-op. Mills Society Ltd. (1983 KLJ 579) observing that:

"Undoubtedly it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. But where he gives evidence only in a general way indicating the steps taken by him, but without specifically referring to the details, that cannot straight away lead to acquittal of the accused. His evidence may be corroborated by the mahazar and the other evidence and supported by the contents of the report of the Public Analyst unless the same is challenged in cross examination or in some other way known to law. Where the accused refrains from cross examining the Food Inspector in regard to these details and fails to suggest either noncompliance with any particular detail of a rule or prejudice having been suffered by the accused, he certainly runs a risk. In the absence of any inhibiting factor it is open to the court to presume that the official act has been regularly performed where it is shown that the official act has been regularly performed.

These observations were followed in Food Inspector v. Hameed, (1983 KLT 901). The act of sampling is an official act. When it is proved that the act has been performed, the court is entitled to presume that it has been performed regularly by virtue of Section 114 of the Evidence Act and illustration(e) thereto, in the absence of any evidence or circumstances casting any doubt about the regularity of the act. Padmanabhan, J. has taken the same view in Food Inspector v. Abdulla Haji, (1985 KLT 781). Food Inspector v. Usman, (1985 KLT 1038) and Food Inspector v. Sathish Kumar (1985 KLT 1093) and with respect we agree with the same."

So it was held by the Division Bench that when the act was done in the official act presumption under Section 114 of the Evidence Act can be taken that such acts were done in accordance with rules. But it is a rebuttable presumption. In 2000 (3) KLT 693 (supra) it was held that Rule 14 of the Rules is mandatory. Hence the positive evidence should be adduced to show that intermediary vessel used were dry and clean. Absence of such deposition by Food Inspector is fatal to prosecution. The court observed as follows:

"6. In the decision reported in Varghese v. Food Inspector (1989 (2) KLT 672) it was held by this court that as far as possible the Food Inspector should sample the article in hygienic conditions. According to the learned Sessions Judge, there is nothing in this case to show that the sample was not taken in hygienic conditions. According to me, there is nothing on record to show that the sample was taken in hygienic conditions. Since there is no material on record to show that the coconut oil was taken in a clean or dry intermediary vessel there is glaring violation of Rule 14 of the Prevention of Food Adulteration Rules. It is settled position that the provisions of Rule 14 are mandatory and violation thereof would vitiate the conviction."

There is no dispute with regard to the point that Rule 14 of the Rules is mandatory and violation of Rule 14 would vitiate conviction. But when it is deposed that sample was taken according to rule, if there is no cross examination and no defence plea is set out during trial or 313 statement that sampling was not done in hygienic condition and intermediary vessels were not dry and clean, court can presume that it was done in hygienic condition and mandates Rule 14 is complied with. In that case it is seen that no argument was placed by the prosecution regarding the official presumption.

6. Section 114 of the Evidence Act reads as follows:

"114. Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

illustration (e) to the above Act reads as follows:

 

The court may presume  
 XXX XXX                                                         XXX                                                        XXX 
 

 (e) that judicial and official acts have been regularly performed; 
 

It is true that the above presumption is rebuttable. Under Section 114, presumption can be raised to fill the gaps in absence of evidence, but cannot be used to contradict evidence. (See inVatticherukuru Village Panchayat v. Nori V. Deekshithulu (1991 (Supp.) (2) SCC 228). The Apex Court in Kassim Kunju Pookunju v. Ramakrishna Pillai (1969 KLT 50 (SC)) the Supreme Court held that where the evidence of Food Inspector shows that all the requirements of the Prevention of Food Adulteration Rules have been complied with, presumption can be drawn unless it is rebutted by the accused. Of course, the above presumption is optional and not conclusive or obligatory, the court can weigh the evidence on record its conclusion on the totality of evidence. Presumption under Section 114 is a presumption of fact. (See: Suresh Budharmal Kalani v. State of Maharashtra (AIR 1998 SC 3258)). Here in this case, the Food Inspector deposed that taking of sampling and sealing was done in accordance with law and there is no cross examination on this point. In such circumstances, in the absence of any contrary evidence at all, it can be presumed that intermediary vessels used for mixing and sampling were clean and dry and there was compliance with the Rules. (See: Revta v. State (1987 Cri. L.J. 1967), Nagar Parishad, Alwar v. Ganga Lahari (1982 Cri. L.J. 2325) and Food Inspector, Palghat Municipality v. Pirayiri CO-OP. Milk Supply Society Ltd. (1984 Cri. L.J. 225 at page 235. The decision of a Full Bench (Five Member Bench) in Mathukutty v. State of Kerala (AIR 1988 Ker. 60) shows that presumption under Section 114 can be drawn in cases of Prevention of Food Adulteration Act. In that case question was whether essential formalities under Section 13(2B) were complied with. The Court held as follows:

"Section 114, illustration(e) enables the court to presume chat the official act has been regularly performed. The superior court may in its discretion presume that the official act of despatching the sample to the Director of Central Food Laboratory has been performed regularly, that is, after taking all such steps and precautions as are required to be taken under Section 13(2B) of the Act. Since the authority involved is a court, we see no reason to hesitate in drawing such a presumption.

This is particularly so when this aspect could have been, but was not challenged in the trial court.

It is, of course, desirable that a record of the steps taken is maintained, but failure to maintain such record cannot stand in the way of the aforesaid presumption being drawn. The decisions referred to earlier that hold against the presumption being drawn and the acceptability of the certificate of the Director of Central Food Laboratory in the absence of record of all the steps taken under Section 13(2B) of the Act, do not lay down good law."

(emphasis applied)

7. The Prevention of Food Adulteration Act was enacted to curb and remedy the widespread evil of food adulteration and to ensure the availability of wholesome food to the people. It is well settled that the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote the object of the statute, prevent its subtle, evasion and foil its artful circumvention. Dealing with an article of food which is adulterated is punishable under Section 16(i)(a) of the Act. Apex Court has deprecated a narrow and pedantic construction of the Prevention of Food Adulteration Act, 1954 likely to leave the loopholes for the adulterant to escape. (See: Murlidhar v. State of Maharashtra (AIR 1976 SC 1929 at Page 1934 and Kisan v. State of Maharashtra (AIR 1977 SC 435). It is true that in criminal jurisprudence, there is presumption in favour of the innocence of the accused and it is the duty of the prosecution to prove the charges. But when prosecution has proved that sampling was done in accordance with law, it is for the accused to point out regarding the alleged defects in the case and the court has to decide the matter on the totality of evidence. Where there are two presumptions; and both are equally balanced, court must prefer that which is best according to facts and evidence on record. In this case there was not even a suggestion during trial that the intermediary vessel and spoon used for stirring the sample was not dry and clean. In Section 313statement also there is no such case for the accused. DW. 1 also did not state so. PW. 1, Food Inspector, has stated that he has taken the sample in accordance with law. In the absence of cross examination on this point and the evidence to the contrary, the official presumption regarding the regularity of official act can be drawn on the facts and the circumstances of this case. We see no ground to disturb the findings made by the court below in a revision petition.

8. From the above discussion following points are clear:

1. Provisions of Rule 14 of the Prevention of Food Adulteration Rules are mandatory and if it is proved that mandates of the above rule are not complied with, the accused is entitled to acquittal.

2. Not only the container in which sample of food articles are taken, intermediary vessels, spoon etc. where food articles are handled for mixing, stirring or otherwise for the purpose of sampling also shall be clean and dry.

3. If the Food Inspector proves that sampling is done according to the rule, in the absence of cross examination or contrary evidence, a presumption can be taken under Section 114 of the Evidence Act that the official act of sampling was done in accordance with rules and containers which samples were taken as well as intermediary vessels used for sampling the food articles were dry and clean.

4. If contrary evidence is adduced, finally it is for the court to find out from the totality of evidence as a finding of fact, whether Rule 14 is violated or not.

9. Considering the facts and evidence adduced in this case, we are of the view that no interference is required in the conviction and sentence imposed by the court below.

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