REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL, APPEAL NO.    998          OF 2008 (Arising out of SLP (Crl.) No. 2226 of 2007)

Benny Thomas … Appellant  

versus

Food Inspector, Kochi and Anr. …Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Leave granted.

2. Challenge  in  this  appeal  is  to  the  order  passed  by  a

learned Single Judge of the Kerala High Court  dismissing the

Criminal  Revision  Petition   which  was  filed  questioning

correctness  of  the  conviction  for  offence  punishable  under

Section 16(1)(a)(i) read with Section 7(1) and Section 2(ia)(m) of

the  Prevention of  Food Adulteration Act,  1954 (in short  the

‘Act’)  and  also  under  Rule  5  read  with  Appendix  B,  Item

A.07.08  and Rule 50 of the Prevention of Food Adulteration

Rules,  1955  (in  short  the  ‘Rules’).  The  appellant  was

sentenced to undergo simple imprisonment for one year and

to pay a fine of Rs.2,000/- with default stipulation as recorded

by learned Judicial Magistrate, Ist Class, Kochi. The learned

IV Addl.  Sessions Judge, Ernakulam in appeal modified the

sentence  and  reduced  it  to  simple  imprisonment  for  six

months and a fine of Rs.1,000/- with default stipulation.  

3. Background facts in a nutshell are as follows:

On 22.5.2000 at about  4.00 p.m.,  the Food Inspector,

P.W.1  inspected  the  shop  of  the  appellant  by  name  “Bejoy

Fruits  and  Vegetables”.  He  found  four  bottles  of  Sarbath

(synthetic syrup) each of 700 ml. capacity, which were kept for

sale.  He  bought  one  bottle  of  synthetic  syrup,  on  paying

Rs.40/-, Ex.P.4 being the voucher for payment. He sampled it

according  to  the  procedure.  After  analysis,  he  obtained

2

Ex.P.12 report, which showed that the sample did not conform

to the  standards prescribed under  the  rules  and,  therefore,

was  adulterated.  Accordingly,  he  proceeded  against  the

appellant.  Since accused abjured guilt, trial was held.

4. Four witnesses were examined and 21 documents were

marked on the side of the prosecution and three documents

were marked on the side of the defence. After appreciation of

the evidence,  the appellant was found guilty,  convicted and

sentenced accordingly.   Appeal by appellant resulted only in

reduction of sentence.  The revision petition did not bring any

relief.    

5. Stand before the High Court was that articles purchased

by the Food Inspector (PW-1) were not kept for sale and as

such  the  same  were  not  the  food  articles.  It  was  further

submitted  that  there  was  no  enquiry  made  by  the  Food

Inspector as to whether these articles were kept for sale.  The

High Court did not accept the stand. Referring to the evidence

of PW-1, it noted that PW-1 had introduced himself as Food

3

Inspector and had expressed willingness to purchase 700 ml.

of ‘synthetic syrup (Sarbath)’ which was kept for sale. He had

purchased it after giving Rs.40/-. The High Court noted that if

the articles were not kept for sale the question of selling it to

the Food Inspector does not arise.  It found that the articles

purchased were for human consumable and were kept for sale

and on analysis did not conform to the requirement. It held

that there was no violation of Rules 17 and 18 of the Rules as

claimed.   Noting  that  the  minimum  sentence  has  been

imposed, revision petition was dismissed.   

6. Learned  counsel  for  the  appellant  submitted  that  no

enquiry was conducted of the samples as to whether articles

were kept for sale.  It was further submitted that the articles

were not meant for sale and, therefore, the said Rules have no

application.  

7. Learned counsel  for the respondent-State on the other

hand supported the impugned order. Admittedly, the sample

was collected by the Food Inspector after effecting purchase

4

and had given the receipt. As rightly noted by the High Court

the articles were intended for sale.  

8. The  complainant,  Food  Inspector,  Cochin  Circle  has

given evidence  as  PW1.  He  has spoken  about  Sarbath,  the

food article involved in this case from the shop of the accused

and also the various formalities done by him in sampling the

same. The fact that the sarbath was purchased from him is

not disputed by the accused. When he was questioned under

section 313 of the Code of Criminal Procedure, 1973 (in short

the ‘Cr.P.C’)  he conceded that he had sold sarbath to PW1.

Further  the  sale  of  sarbath  to  PW1  is  proved  by  Ex.  P4

voucher  issued  by  the  accused  towards  the  purchase  and

acceptance  of  its  cost  from PW1. He had also given Ex.  P3

Form VI notice to the accused, the receipt of which has been

acknowledged  by  him  as  per  Ex.  P3  (a)  endorsement  and

signature.  As PW1, the Food Inspector has stated that he had

disclosed  to  the  accused  the  intention  of  the  purchase  of

sarbath from him, what is contended by the accused is that

the sarbath purchased from him was not intended for sale as

5

such. According to PW1, the purchased sarbath was sampled

by him at the spot as provided in the Rules, and one part of

the sample prepared by him was sent to the public analyst for

analysis  and  the  remaining  two  parts  of  the  sample  were

forwarded  to  the  Local  (Health)  Authority,  and received  the

result of the analysis of the sample from  the public analyst,

through Local (Health) Authority. Ex. P12 is the report of the

Public Analyst, as per which the sample does not conform to

the standards prescribed for sarbath under the Rules and so

the  sample  is  adulterated.  On  receipt  of  the  intimation

regarding  the  launching  of  prosecution  against  him,  the

accused filed a petition before the court below seeking to send

one part of the sample kept with the local (Health) Authority to

the  Central  Food  Laboratory  for  analysis.  Accordingly,  one

part  of  the  sample  was  called  for  from  the  Local  (Health)

Authority and sent to Central Food Laboratory. Ex. P17 is the

report obtained from Central Food Laboratory, as per which

the  sample  does  not  conform  the  standard  prescribed  for

sarbath under the rules and is, therefore, adulterated. Thus

the prosecution has been able to establish that the sarbath

6

purchased from the accused by PW1 is adulterated.

9. One of the contentions of the appellant/accused is that

the  Food  Inspector  had  violated  the  mandatory  provisions

contained in Rule 17 & 18 of the Rules and so he is eligible for

an acquittal. Rules 17 & 18 of Rules are as follows:

"17. Manner of dispatching containers of samples :- The containers of the sample shall be dispatched in the following manner, namely:

a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be  sent  in  a  sealed  packet  to  the  public  analyst immediately  but  not  later  than  the  succeeding working day by any suitable means:

b) The  sealed  containers  of  the  remaining  two parts  of  the  sample  and  two  copies  of  the memorandum in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means:

(c) The sealed container of one of the remaining two  parts  of  the  sample  and  a  copy  of  the memorandum  in  Form  VII  kept  with  the  Local (Health) Authority shall within a period of 7 days be sent to the public  analyst on requisition made by him to it by any suitable means:

7

Provided that in the case of a sample of food which  has  been  taken  from  container  bearing Agmark seal,  the memorandum in Form VII  shall contain  the  following  additional  information, namely:

a) Grade

b) Agmark Label No. /Batch No.

c) Name of Packing station

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."

10. From the evidence of PW-1 it is clear that at one point of

time the  sample  was handed  over  to  the  public  analyst  on

23.5.2000 i.e. the succeeding day of taking the sample from

the shop of the accused. PW-1 also stated that other two parts

of the sample alongwith Form No.VII  Memorandum and the

specimen  impression  of  the  seal  used  to  seal  the  sample

bottles were handed over to the Local Health Authority by PW-

1 and copy of the information had been given to PW-2, the

Local Health Authority.  PW-2 stated in his evidence  that he

8

had received two parts of the sample alongwith Form VII and

the specimen impression of the seal used to seal the sample in

separate sealed cover. Therefore, as rightly held by the High

Court there was no violation of Rules 17 and 18 of the Rules.  

11. The accused in his examination under Section 313 of the

Cr.P.C. admitted that he had sold the articles in question to

PW-1.  The plea that the articles were not intended for sale

has no substance as noted above. The sentence imposed as

afore-noted  is  minimum  and,  therefore,  the  plea,  that  the

sentence is harsh, has no substance.  

12. Looked at from any angle,  the appeal  is without merit,

deserves dismissal, which we direct.  

…………………………J. (Dr. ARIJIT PASAYAT)

………………………..J. (P. SATHASIVAM)

New Delhi, July 7, 2008

9