Court upheld conviction for selling fat-deficient milk, ruling government chemist's certificate is sufficient evidence.

[*396] 1982 February 20

(PAPAS, D.J.)

IN THE DISTRICT COURT OF PAPHOS

Medical Department,

v.

Alexis Tsappis,

Accused.

(Case No. 1634/81).

Sale of Food and Drugs Law, Cap. 261 - Sale of cow milk which was not genuine - Sections 4(I) (2)(a) (4) and 19 of the Law - Certificate of analysis by Government chemist constitutes sufficient evidence to support conviction - Section 15 of the Law.

K. Chrysostomou, for the prosecution.

Chr. Tsielepos, for the accused.

JUDGMENT

The following judgment was delivered by:

PAPAS, D.J.: The accused is[*397]

charged that on the 14.481 at Yeroskipou, he sold to the prejudice of one Andreas Vladimirou of. Paphos, for one Christis Georghiades, a quantity of cow milk which was not genuine, i.e. it was defficient by 10% in fat, contrary to sections 4(1), (2a), (4) and 19 of the Sale of Food and Drugs Law, Cap. 261 and Law 34/67 and of the Sale of Food and Drugs amendment Regulation, 1941.

The Prosecution in support of its case, called three witnesses. Prosecution witness No.I, Andreas Vladimirou, who stated that on the 14.4.81 the accused sold him milk and from this milk samples were taken by P.W.2 who is the Health Inspector in the area of Paphos. The evidence of. this witness has not been challenged in cross-examination, as a matter of fact it is common ground that the accused sold milk on the said day to P.W.I and that from this milk samples were taken for analysis by P.W. 2 and that these samples were given to P.W.3 Georghios Papadopoullos who conveyed these samples to the Government Analyst, Mr. Lovarides for examination.

P.W.2 described to the Court in his evidence the way the samples were taken from the milk containers and in cross-examination it was suggested to him that his method of obtaining milk samples for purposes of analysis was not the proper one.

P.W.3's evidence was also challenged by the defence that the way the samples were transfered to Nicosia was not the proper way.[*398]

P.W.2 produced to the Court a certificate of analysis of the samples of milk which

were taken, signed by the Government Analyst and dated 17.4..81 and this certificate was put in as Exhibit I. This certificate was

issued in accordance with the provisions of s.II(3) of Cap. 261 which states that

"The Government Chemist shall, as soon as practicable, analyse any sample submitted as aforesaid "and shall give to the person by whom the sample is "sent a certificate specifying the result of the "analysis in the form set forth in the Schedule or "a form to the like effect."

It is worth noting that a provision is made in this certificate that in the case of a certificate regarding milk, butter or any article liable to decompensation, the Government Analyst shall specifically report whether any change had taken place in the constitution of the article that would interfere with the analysis. In this certificate, i.e. Exhibit I, no report was made to such an effect.

The accused gave evidence to this effect stating that he was present when the samples were taken from the milk he sold to P.W.I and he described how the samples were taken.

D.W.2 is an Agriculturist who stated that he had specialised in the analysis of milk and he stated to the Court what is the proper way in his opinion, by which samples[*399]should be taken so that no alteration should be brought about in the composition of the milk and he described to the Court how sample taking should be.

Counsel for the accused in his address to the Court, alleged that the samples of milk which are the subject matter of these proceedings, arrived at the Government Analyst altered and in his opinion the result of the analysis carried out by the Government Analyst is not correct and he based this contention on his allegation that the sample taking which was described by P.W.2 was not the proper one.

I have considered the whole evidence before me and I have also considered the provisions of s.15 of the Sale of Food and Drugs Law, Cap. 261 which reads as follows:-

"15. In any prosecution for an offence under the "provisions of sections 3,4,5,7,8 and 9, the production by the prosecuting officer of a certificate "of the Government Chemist in the form described "by this Law shall be sufficient evidence of the "facts stated therein unless the accused requires "that the Government Chemist shall be called as "a witness".

In view of the provisions of this section, the facts stated in Exhibit I, i.e. the certificate of analysis constitutes sufficient evidence to support a conviction as per charge sheet. No mention is made by the Government Analyst that any change had taken place in the constitution[*400]of the said samples of milk that would interfere with the analysis.

In view of the whole evidence before me, I find that on the 14.481 the accused sold to P.W.I milk which was deficient by 10% in fat.

Having made this finding, I decide that the Prosecution proved its case beyond reasonable doubt and I find the accused guilty as per charge sheet.

Accused found guilty as per charge