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Report No. 47

5.11. Non-enforcement of the law because of failure of report or failure to investigate the offence.-

Sometimes, there is no detection or investigation and this may be the principal cause of failure of enforcement.

5.12. Faulty investigation or delay in investigation (including administrative inefficiency).-

Faulty investigation is frequently responsible for failure of prosecution. For example, the right of the accused to get a sample examined under section 13(2) and 13(5) of the Prevention of Food Adulteration Act by the Director of Central Food Laboratory, may be defeated by inordinate delay in prosecution. If the sample becomes decomposed and hence impossible of analysis, the accused is deprived of his valuable right, and the conviction cannot be sustained1.

1. Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970: (1967) 2 SCR 116.

5.13. The finality and conclusiveness of the report under section 13 of the Prevention of Food Adulteration Act, is only to the extent that the sample as sent to the Central Food Laboratory contained what the report disclosed and in the proportions stated therein. The accused will still be entitled to lead evidence to show that the article of food in question is not adulterated food. The factors which he can rely upon in such cases, include the delay in analysis of the sample and its impact on the result obtained1.

1. Corporation of Delhi v. Om Prakash, 1970 Cr LJ 1047 (1050) (Del).

5.14. In an Allahabad case1, it was observed-

"The Prevention of Food Adulteration Act does not prescribe any time limit within which prosecutions may be launched. But it cannot be denied that articles of food are liable to deterioration and decay with lapse of time. Moreover, it is cardinal and fundamental principle of criminal jurisprudence that if an offence has been committed, the prosecution must be instituted without the least delay. The Mahapalika have not invited any attention to anything on the record to explain the delay. In most of the cases the prosecution was launched over a year after the date of the offence. In some cases, it has been launched more than two years after. It is reasonable to expect an explanation to explain such a delay. Even if it may not be possible to hold that the prosecution is invalid because of delay, this is a material circumstance on the question of sentence."

1. Chaturbhuj v. State, AIR 1968 All 21 (36), para. 34 (Satish Chandra J.).

5.15. In a Punjab case1, the accused was tried under section 16(1)(i) of the Prevention of Food Adulteration Act. It was clear from the evidence that there were a number of shops in the close proximity of the accused's shop, and there were also other persons near about the shop at the time when the sample was taken by the Food Inspector at about 3. P.M. But the Food Inspector did not even care to ask any of those persons to witness the transaction, and one of the two persons taken by the Food Inspector as a witness was his peon, who could not be said to be an "independent" person, and the other person stated that he actually reached after the sample had been taken by the Food Inspector. It was held that the provisions of sub-section (7) of section 10 had not been complied with. The provision was mandatory, and therefore, the accused was entitled to an acquittal.

1. Ram Sarup Tarn Chand v. State, AIR 1965 Punj 366 (J.S. Bedi J.).

5.16. Prosecution under the Prevention of Food Adulteration Act may thus fail because of defective reports of the public analysts1, or delay in the examination of samples2, or because the procedure prescribed by the Act for taking samples is not followed3.

1. State v. Gunjilal, AIR 1964 Punj 475.

2. Municipal Corporation of Delhi v. Surja Ram, (1965) 2 Cr LJ 571.

3. Food Inspector v. P. Kaman, AIR 1964 Ker 261.

5.17. On the other hand, a Bombay case1 illustrates the success of a prosecution.

The accused/petitioner was a dealer in foodgrains. A sample of bajari was sent for analysis, and the report of the public analyst stated that ergot was found. The report was written on form III, rule 7(3). In the certificate with which the report began, the Analyst stated that the sample had been properly sealed, and that he found the seal intact and unbroken. The accused was charged under section 16(1)(a)(i) of the Prevention of Food Adulteration Act read with rule 7(1). He was convicted of the offence. On revision, before the High Court, it was contended for the accused that rule 7(1) had not been complied with, in that there was nothing to indicate that the Analyst compared the seals on the container with the impression sent separately. Secondly, it was contended that there was no evidence to show that the specimen impression of the seal was separately sent by the Food Inspector.

1. K. Rajaram v. Koranne, AIR 1968 Born 247 (249).

5.18. As to these points, the court held that since the report of the public Analyst was in form No. III, it need not mention that the Analyst had compared the seal on the packet with the specimen seal sent separately; the form simply required a statement to the effect that the sample was properly sealed and intact1.

1. The court followed State v. Umacharan, AIR 1966 Ori 81 and disagreed with State of Gujarat v. Shantaben, AIR 1964 Guj 136 and Mary Lasado v. State of Mysore, AIR 1966 Mys 244.

5.19. The second argument on behalf of the accused was that the report of the Analyst did not indicate the percentage of ergot. In this case the prosecution was under section 2(1)(f) of the Act. Regarding this sub-clause of section 2, the Court said:

"The expression 'otherwise unfit for human consumption' is wide and of general character. It is necessary to note that clause (iii) of A. 18.06 speaks of grain having been affected internally. It is in this case only that the question of the percentage becomes relevant. If the damage is due to internal affection or purification, then the question of percentage may have significance."

It was held that what had happened was that the grains of ergot, which are similar in size to the grains of bajari and darker in colour, had got themselves inextricably mixed up with bajari. Since they were separate from the grains of bajari, there was no question of any "internal affection". At the same time, such bajari was unsuitable for human consumption. Hence the conviction was upheld.

5.20. Flaws in actual conduct of the case.-

Flaws in the actual conduct of the case may often result in failure of prosecution. For example, the Director's report under section 13(3), Prevention of Food Adulteration Act, is final. But, if material circumstances in the report are not put to the accused in the examination of the accused, the trial is vitiated1.

1. Municipal Committee v. Om Prakash, ILR (1969) 2 Punj 57 (68-72) (Sodhi and Koshal JJ.).

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