Food Inspector, Palakkad Municipality v. Suresh Menon, N.S. Viswanathan, A.K. Dhingara, M/S Lipton India Limited and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 CRL.A.No. 248 of 2002() ST.49/1991 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... - APPELLANT/COMPLAINANT: FOOD INSPECTOR, PALAKKAD MUNICIPALITY (MR.A.B.ALIKUNJU), PALAKKAD. BY ADV. MR. V.CHITAMBARESH MR. SHAMIER MARICKAR ## - RESPONDENTS/ACCUSED: 1. SURESH MENON, S/O. N.C.MENON (RADHASREE, PUTHUR, PALAKKAD) LICENSEE & SALESMAN OF TRIVENI DEPARTMENT STORE, 6/605-1, PUTHUR ROAD,PALAKKAD. 2. N.S.VISWANATHAN, MANAGING PARTNER, V.N.TRADERS, MARKET ROAD, PALAKKAD. 3. A.K.DHINGARA, BRANCH MANAGER, LIPTON INDIA LTD., 150 LUZ CHURCH ROAD, MYLAPORE, MADRAS-600 004 (NOMINEE OF M/S. LIPTON INDIA LTD., P-44, HIDE ROAD, CALCUTTA) 4. M/S. LIPTON INDIA LIMITED, - P-44, HIDE ROAD, CALCUTT-700 088, REPRESENTED BY A.K.DINGARA, BRANCH MANAGER, LIPTON INDIA LTD., 150, LUZ CHURCH ROAD, MYLAPORE, MADRAS(NOMINEE OF THE COMPANY). 5. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. N.SUBRAMANIAM FOR R2 MR. M.S.NARAYANAN FOR R2 MR. P.VIJAYA BHANU FOR R1 MS. K.S.CHANDRIKA FOR R1 MR. S.VIJAYAKUMAR FOR R4 MR. N.A.MURALEEDHARAN FOR R3 & R4 ADV. MS. M.K. PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **“CR”** ## V. RAMKUMAR , J. ------------------------------------------------------------Crl.A. No. 248 of 2002 -----------------------------------------------------------Dated this the 9[th] day of October, 2009. ## **JUDGMENT** In this appeal, the Food Inspector, Palakkad Municipality challenges the order of acquittal passed by the Chief Judicial Magistrate, Palakkad in S.T. No. 49 of 1991. Respondents 1 to 4 herein were acquitted of the offences under Section 2(ia) (m); 7(i)(v) and Rule 5 and Appendix B-A.11.02.15 read with Section 16(1)(a)(1) of the Prevention of Food Adulteration Act, 1954. 2. The following facts are admitted:- On 20.12.1990, at about 3.30 p.m., the Food Inspector visited the Triveni Department Store, Puthur Road, Palakkad and purchased from A1 salesman three packets of Anikspray dried skimmed milk powder each weighing 100 grams. A2 is the distributor from whom A1 had purchased the skimmed milk as per Ext.D1 cash bill. A4 is the company of which A2 is Crl. Appeal No. 248/2002 : 2 : the distributor. A3 is the nominee of the company. The Food Inspector (examined as PW1) took each packets as parts of sample and wrapped and sealed each packets. One part of the sample was forwarded to the Public Analyst who as per Ext.P13 report dated 05.02.1991 found the sample adulterated since the moisture content was found to be 5.15%, which is above the limit of 5% fixed under standard A11.02.15 of Appendix B of the Food Adulteration Rules as it stood then. The Public Analyst also found the solubility of the sample at 95.4% as against the minimum standard of 98.5 then fixed. 3. The Food Inspector was examined as PW1 during trial. PW2 is the independent witness who supported the prosecution. PW3 is the local Health Authority. The Public Analyst was examined on the side of the prosecution as PW4. PW4 gave evidence without reference to the laboratory records. Subsequently, after the examination of the accused under Section 313(1)(b) Cr.P.C, the accused adduced defence evidence by examining the very same public analyst as DW1 Crl. Appeal No. 248/2002 : 3 : who was summoned to produce the laboratory records. Instead of permitting the accused to summon PW4 again and cross-examine him, the court below erred in allowing the accused to examine PW4 as DW1 on the defence side. [vide **State of M.P v. Badri Yadav** – AIR 2006 SC 1769 = 2006 (3) KLT 205 = 2006 (9) SCC 549] However, the above procedure has not affected the case in any manner. DW1 produced the work sheet which was marked as Ext.D2. The accused also examined the former Director of the Central Food Laboratory as DW2. 4. The court below after trial, as per the impugned judgment dated 22.12.1994 acquitted respondents 1 to 4 herein under Section 255 (1) Cr.P.C of the offences charged against them. It is the said acquittal which is assailed in this appeal filed by the Food Inspector. 5. I heard both sides. 6. The grounds on which the order of acquittal is based is as follows:- A)The minimum quantity for the purpose of finding out Crl. Appeal No. 248/2002 : 4 : the percentage of moisture in the sample is about 5 gms. whereas DW1, the Public Analyst had taken only 2 gms. Admittedly, the procedure for determination of moisture in dried skimmed milk food is made by the pubic analysts by following the guidelines in Ext.D3 Hand Book of Food Analysis issued by the Indian Standards Institution. Part XI of the said Hand Book deals with dairy products. Infant milk products and malted skimmed milk food are found in paragraphs 121 to 132 of the said Hand Book. Para 121.2.1 gives the minimum quantity of dried skimmed milk to be taken for the purpose of determination of moisture content. It is about 5 gms. Even though DW1, the public analyst while examined as PW4, deposed that he had taken 5 grams for determination of moisture, the said statement was made without reference to the work sheet prepared by him during analysis. He when examined as DW1, after referring to Ext.D2 work sheet confessed that he had taken only two grams for Crl. Appeal No. 248/2002 : 5 : determination of moisture. Hence, the analysis made by DW1 could not have given the correct results. B) While determining the solubility percent of the sample, no doubt, DW1 had taken the minimum quantity of 4 grams as stipulated under paragraph 128.1.1 of Ext.D3 Hand Book issued by the ISI. But, a perusal of Ext.D2 work sheet shows that the conclusions reached by DW1 are demonstrably erroneous. DW1 had prepared 2 samples of milk each of 2 ml. In the case of the first sample, the weight of 2 ml. of milk was found to be 1.9960 gms. before centrifuge whereas after centrifuge, the weight of milk was found to be 2.005. It is a matter for inference that the weight of milk can only decrease after centrifuge. With regard to the second sample, DW1, however, came to the sensible conclusion that the sample of 2 ml. of milk before centrifuge was having a weight of 2.0070 grams and after centrifuge, it had come down to 2.0030 grams. Crl. Appeal No. 248/2002 : 6 : C)There is also disparity in the weight of 2 ml. of milk before centrifuge. In the case of the first sample, the weight of milk alone was 1.9960 grams for 2 ml. of milk. But in the case of the second sample which is also 2 ml. of milk, the weight was found to be 2.0070. This disparity also should not have occurred since both samples were 2 ml. of milk. A perusal of Ext.D2 work sheet shows that the calculations are palpably wrong. If so, the result of analysis was also wrong and therefore Ext.P13 report issued by PW4=DW1 was liable to be discarded and the prosecution has failed to establish that the sample purchased by the Food Inspector was adulterated for the reason that the moisture content and solubility did not conform to the standards laid down under A11.02.15 in Appendix B of the Rules. 7. I fully endorse the above reasoning by the trial court. While it is comforting to notice that Ext.D2 work sheet had been preserved in a tamper-proof state, it is startling to find Crl. Appeal No. 248/2002 : 7 : that as per the recorded data in the work sheet, the conclusion as has been reached under Ext.P13 report was not possible. Experts should realise that even a small degree of error on their part may send an innocent person to jail. The conclusion reached by the court below cannot be said to be erroneous. The accused were rightly acquitted by the court below. I see little scope for interference with the order of acquittal. This appeal is accordingly dismissed. Dated this the 9[th] day of October, 2009. ## **V. RAMKUMAR, JUDGE.** rv Crl. Appeal No. 248/2002 : 8 : V. RAMKUMAR, J. **------------------------------------** Crl. Appeal No. 248 of 2002 ---------------------------------------- 9[th] day of October, 2009. JUDGMENT Crl. Appeal No. 248/2002 : 9 :