This Criminal Revision is directed against the judgment passed in C.A.No.60 of 2009 by the Additional Sessions Judge (Fast Track Court No.II), Thoothukudi, dated 13.11.2009, confirming the judgment of the Judicial Magistrate, Sattankulam, dated 5.5.2009 made in C.C.No.92 of 2004.
2.The case of the prosecution is that the Food Inspector attached to Santhankulam Municipality lifted food sample from the shop belonging to the accused and sent for analysis and the sample was found adulterated and thereby committed offence punishable under
Section 7(1) and 16(1-A)(i) r/w 2(i-a)(i) of the Prevention of Food Adulteration Act, 1954.
3.In the trial court, 2 witnesses were examined, 18 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. On the side of the accused, one witness was examined and four documents were marked. The trial court convicted the revision petitioner/sole accused for the offence under Section 7(1) and 16(1-A)(i) r/w 2(i-a)
(i) of the Prevention of Food Adulteration Act, 1955 and sentenced http://www.judis.nic.in 3 him to undergo one year SI and to pay a fine of Rs.2,000/-, in default, SI for three months. Aggrieved by the judgment passed by the trial court, the revision petitioner/accused filed an appeal in C.A.No.60 of 2009, which was heard by the Additional Sessions Judge (Fast Track Court No.2 (i/c)), Thoothukudi. The first appellate Court confirmed the findings of the trial court. Hence, this criminal revision.
4.The learned counsel for the petitioner submitted that the courts below failed to consider that Form 6 in Ex.P3 was issued before the purchase of food article by the food inspector, which is the clear violation of law and affects the case of the prosecution in total; that the courts below failed to consider the fact that PW1 had doubt over the particular flour or on what information he wanted to test the particular flour in the said shop despite large number of food articles are found in the grocery shop; that the courts below failed to consider the fact that PW2 in his evidence clearly stated that he does not know about the contentions of the paper, in which he has signed; that the courts below failed to consider the fact that PW1 followed all the rules and law in getting the samples and sending the samples to the respective superiors and resting http://www.judis.nic.in 4 laboratories; that the courts below failed to consider the fact that the prosecution has failed to prove that the accused is the owner of the said malaigai and nowhere in the produced license the shop name was mentioned and the clear address was not mentioned; that the courts below failed to consider the fact that the sample taken from the shop contains the name of the traders, who manufactured the flour, who has not been added as an accused and no steps were taken to add the manufacturer into the case by the prosecution; that the courts below failed to consider the fact that the evidence of PW1, who deposed that the alleged certificate of ownership was written by he himself and signed by DW1; that the courts below failed to consider the fact that the ownership certificate was obtained in the year of 2008 for the purpose of this case and it has not been obtained at the time of investigation. In view of the above circumstances, he prays that the impugned judgment has to be set aside and the revision has to be allowed.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that both the courts below appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard http://www.judis.nic.in 5 to the nature of the offence, convicted the revision petitioner and passed proper sentence, which do not require any interference by this court and the revisions petitioner is not entitled for acquittal and prays that the criminal revision has to be dismissed.
6.Heard both sides and perused the materials available on record.
7.PW1 is the Food Inspector working in Anandhapuram Primary Health Centre. PW1 deposed that on 30.07.2003 at 3.00 pm, he intended to take food sample and proceeded near new bus stand at Santhankulam, where he saw that the accused was running his grocery shop in Door No.4/24D and he introduced himself as Food Inspector and questioned about the Bengal gram flour, which was kept for sale and the accused replied that there was no bill for Bengal gram flour and the accused stated that he renewed the licence for the above shop and he is the owner of the above shop and he purchased 500 gram black-gram powder for Rs. 40/- as sample and the details of the sample taken were intimated to the Local Authority and sent for analysis and as per the analysis report, the above black-gram powder was adulterated and he sent http://www.judis.nic.in 6 complaint to the Deputy Director, Food Adulteration, Chenai, for giving sanction to file a case as against the accused and after getting sanction from Deputy Director of Food Adulteration, Chennai, filed the case under Sections (1) & 16 (1)(A)(1) r/w 2(1A) of the Food Adulteration Act 1959 and Rule 28 of the Food Adulteration Rules.
8.PW2 Ramanathan is an eye witness. PW2 deposed that on 30.07.2003 at 3.00 pm, when he went to the grocery shop of the accused to purchase some eatables, at that time, PW1 was present and purchased 1-1/2 kgs of black-gram for Rs.40.50/- and then, he divided the black-gram power into three pockets and for that, he obtained his signature.
9.PW1 during his cross examination stated that at the time of his inspection, PW2 was present. But PW2 during his cross examination stated that before his presence in the shop of the accused, PW1 was in the shop of the accused. At this juncture, it is necessary to refer the cross examination of PW1 and PW2. http://www.judis.nic.in 7
10.PW1 during his cross examination has stated that:-
“vjphpapd; filapy; ,Ue;J khjphpf;F bghUl;fs; thq;fpanghJ gf;fj;J filf;fhuiu tprhhpj;njdh vd;why; ,y;iy. ,t;tHf;fpy; rhl;rp uhkehjd; vd;gtiu tHf;F rk;gtj;jpw;F gpwFjhd; vdf;F bjhpa[k;. ehd; khjphp vLf;Fk; nghJ mth; filf;F te;jpUe;jhh.; ehd; rhl;rpia tprhpf;Fk; nghJ mth; mUfpy;
11.PW2 during his cross examination stated as follows:-
“czt[ Ma;thsh; ehd; nghtjw;F Kd;dhy; filapy; ,Ue;jhh;. mth; filf;F vg;bghGJ te;jhh; vd;gJ bjhpahJ. ehd;
filf;F nghtjw;F Kd;dhy; 23 Ml;fs; ,Ue;jhh;fs.; mth;fs; ahh; vd;W vdf;F bjhpahJ. bghUl;fSf;F ehd; urPJ bgwtpy;iy. ehd; filapy; 3 kzpf;F brd;w nghJ xU K:ilapyUe;J fliykht[ vLj;jhh;fs.; ehd; nghtjw;F Kd;g[ bghUs; vJt[k; vLj;jhh;fsh vd;gJ http://www.judis.nic.in 8 vdf;F bjhpahJ. bghUs; vLj;J K:ilapd;
bgah; vJt[k; ,Ue;jjh vd;gij ehd; ftdpf;ftpy;iy. ehd; ifbaGj;J nghl;l Mtzj;jpy; vd;d vd;W vGjg;gl;oUe;jJ bgah; vGjg;gl;oUe;jjJ vd;gij ehd; goj;J ghh;f;ftpy;iy. vjphpaplk; czt[ Ma;thsh; gzk; bfhLj;jij ehd;
ghh;j;njd.; mjw;F vjphp urPJ bfhLj;jhuh vd;gij ehd; ghh;f;ftpy;iy. vjphp bfhLj;j urPjpy; ahh; ahh; ifbaGj;J nghl;Ls;shh;fs; vd;gJ vdf;F bjhpahJ.”
12.It is to be seen that to prove that PW2 purchased articles in the shop of the accused, no document was produced. Further, PW2 stated that before he went to the shop of the accused, 2 to 3 persons available in the shop of the accused. PW1 has not requested that persons to stand as witness. Further, he has not examined the neighbouring shop owners of the accused.
13.PW1 stated that at the time of his inspection, PW2 is present. But PW2 deposed that before he went to the shop of the accused, PW1 was present in the accused shop. Hence, there are contradictions between the evidence of PW1 and PW2 in respect of the presence of PW2 in the shop of the accused. http://www.judis.nic.in 9
14.The learned counsel for the revision petitioner/accused argued that it is the duty cast upon the Food Inspector to enquire the accused about the address of the manufacturer. But the Food Inspector has not taken any steps to examine the manufacturer of Bengal gram flour and when the accused requested to give the details of the manufacturer and when there is violation of
Section 14-A of the Prevention of Food Adulteration Act is punishable under
Section 16(1)(c), the accused ought to have been convicted under
Section 7(1) and
16(1)(A)(i) r/w
Section 2(ia)(a)(b) of the Prevention of Food Adulteration Act, 1954 and the violation of
Section 14-A of the Prevention of Food Adulteration Act is punishable under
Section 16(1)(c) of the Act and violation of 14-A r/W 16(1) (C) of the Act is not at all averred in the complaint and no charge is framed for the violation of
Section 14-A r/w 16(1)(C) of the Act and since, there is no charge framed on the complaint, the accused cannot be found guilty, since no opportunity was given to him for violation of 14-A r/w 16(1)(c) of the Prevention of Adulteration Act and hence, the accused is entitled to acquittal. For that, the learned counsel for the accused submitted the ruling reported in (1998)9 SCC 678 (State by Food Inspector, Cumban Vs. Jafar Ali). In that case, in para 21, it has been held as follows:-
http://www.judis.nic.in 10 “21.In the case of State of Maharashtra Vs. Rahman (1993 Mah.LT 881 Bom.), it has been held that Sec.14-A prescribes a duty upon a vendor to disclose to the Food Inspector when required, the name, address and other particulars of the person from who he purchased the article food. When a Food Inspector takes samples he shall issue notice not only to person from whom he has taken sample, but also to his vendor whose name and particulars are disclosed under Sec.14- A of the Act. When the accused retails did not disclose the name of the manufacturer from whom he has purchased the article of adulterated food, he cannot fault the prosecution for not proceeding against the manufacturer. When the Accused is duty bound to disclose the name of the manufacturer under Sec.14-A of P.F. Act, the reasonings of the trial court faulting the prosecution cannot at all be sustained.
Sec.16(1) is the penal provision for violation of Sec.14-A of P.F. Act. Sec.16(1)(c) reads thus:-
“If any person contravenes the provisions of Section 14 or Section 14-A, he shall be punishable with imprisonment for a term which may extent to six months and with fine which shall not be less than five hundred rupees.” http://www.judis.nic.in 11
23.When violation of Sec.14-A of P.F.A. Act is punishable under Sec.16(1)(c), the Accused ought to have been convicted under Ss.7(i) & 16(1)A(i) r/w Sec. 2(ia)(a)(b) of the Prevention of Food Adulteration Act, 1954. But the trial Court committed substantial error in acquitting the Accused without taking note of Sec.14-A and Sec. 16(1)(c) of P.F.A. Act.
24.Though the order of the acquittal suffers from serious infirmity for more than one reason, the order of acquittal could not be interfered with by this Court. As discussed earlier, violation of Sec.14-A of P.F.A Act is punishable under Sec.16(1)(c) of the Act. Violation of 14-A r/w.16(1)(c) of the Act is not at all averred in the complaint, nor the Accused is charged for the violation of 14-A r/w16(1)(c) of the Act. Since there is no charge framed on that count, the Accused cannot be found guilty at this stage, since an opportunity has to be given to him for violation of Sec.14-A r/w 16(1)(c) of P.F.A Act. http://www.judis.nic.in 12
15.At this juncture, it is necessary to refer the cross examination of PW1. PW1 during his cross examination stated as follows:-
“vjphpaplk; fliy kht[ vq;F thq;fpdhh; vd;W tprhhpj;njdh vd;why; tprhhpj;njd;. mth; mJ Fwpj;J vJt[k; brhy;ytpy;iy. vjphp filapy; fliykht[ itj;jpUe;j rhf;fpy; fhkhl;rp onulh;]; vd;W jhd; vGjp ,Ue;jJ. fhkhl;rp onulh;]; vq;F ,Uf;fpwJ vd;W tprhhpj;njdh vd;why; vjphp kJiuapy; ,Uf;fpwJ vd;W Twpdhh;
fhkhl;rp onulh;]; vd;gJ murpd; mDkjp bgw;w ey;y fk;bgdp vd;gjhy; mJ gw;wp vdf;F bjhpahJ.
16.PW2 during his cross examination stated as follows:-
“ehd; filapy; 3 kzpf;F brd;w nghJ xU K:ilapypUe;J fliykht[ vLj;jhh;fs; ehd; nghtjw;F Kd;g[ bghUs; vJt[k; vLj;jhh;fsh vd;gJ vdf;F bjhpahJ bghUs; vLj;j K:ilapy; bgah; vJt[k; ,Ue;jjh vd;gij ehd; ftdpf;ftpy;iy ehd; ifbaGj;J nghl;l http://www.judis.nic.in 13 Mtzj;jpy; vd;d bgah; vd;W vGjg;gl;oUe;jJ vd;gij ehd; goj;J ghh;f;ftpy;iy vjphpaplk; czt[ Ma;thsh; gzk; bfhLj;jij ehd; ghh;njd; mjw;F vjphp urPJ bfhLj;jhuh vd;gij ehd;
ghh;f;ftpy;iy vjphp bfhLj;j urPjpy; ahh; ahh; ifbaGj;J nghl;Ls;shh;fs; vd;gJ vdf;F bjhpahJ.
17.From the cross examination of PW1 and PW2, it is made clear that already the accused disclosed about the details of manufacturer of the Bengal gram flour. But PW1 failed to examine the manufacturer of the Bengal gram flour. Further, there was no averment for violation of
Section 14-A r/w 16(1)(c) of the Prevention of Food Adulteration Act in the complaint. Further, there is no charge framed for the violation of
Section 14-A r/w 16(1) © of the Prevention of Food Adulteration Act. Hence, in view of the above discussion, it is held that without framing charge for violation of
Section 14(1)(A) r/w 16(1)(c) of the Act, the accused cannot be found guilty, at this stage, since no opportunity was given to the accused for violation of
Section 14-A r/w 16(1)(C) of the Act. http://www.judis.nic.in 14
18.For all the reasons stated above, this Court is of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and hence, the impugned judgment of conviction and sentence are liable to be set aside.
19.In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence are set aside. The revision petitioner/accused is acquitted of the charges levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.
29.10.2018 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 15 To,
1.The Additional Sessions Judge, (Fast Track Court No.2), Thoothukudi.
2.The Judicial Magistrate, Santhankulam.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 16 T.KRISHNAVALLI,J er Judgment made in Crl.R.C(MD)No.739 of 2009 29.10.2018 http://www.judis.nic.in 17 http://www.judis.nic.in