Patna High Court
Daitari Mahto vs State on 27 August, 1969
Equivalent citations: 1971CRILJ129
JUDGMENT Anwar Ahmad, J.
1. The petitioner was convicted Under Section 16 (1) of the Prevention of Food Adulteration Act, hereinafter referred to as the Act, and sentenced to undergo simple imprisonment for six months. On appeal, his Conviction and sentence have bean upheld by the Additional Sessions Judge, Singhbhum.
2. The prosecution case is that the Food Inspector (P.W. 2) of the District Board of Singhbhum visited the shop of the petitioner on the 7th November 1963 along with Hari Ear Bhattaoharya (P.W. l), Mata Karwa (P.W. 3) and one Abhay (not examined), purchased one and a half pao of gunja oil from the petitioner on payment of price, divided it into three equal parts, pat them in three separate bottles and, after affixing labels thereof, properly packed and sealed them. One of the bottles was given to the petitioner and one was sent to the Public Analyst, who, in his report, found the sample of gunja oil highly adulterated with linseed oil.
3. The prosecution of the petitioner was started on the basis of a complaint (Ext. 7) made by P.W. 2 after obtaining the necessary sanction as required by Section 20 of the Act,
4. The taking of the sample and the fact that it was found to be highly adulterated are not denied by the petitioner, His contentions before the learned Additional Sessions Judge that the District Medical Officer wag not empowered to sanction a prosecution and that the Public Analyst wis not duly authorised by the State Government have been negative by the learned Judge, and these two points have not been raised before us.
5. Mr. Nrijendra Narayan Roy, learned Counsel for the petitioner, has, however, raised a new point to the effect that gunja oil is not an edible oil and, as such, the petitioner cannot be convicted Under Section 16 (1) of the Act. There is no substance in this submission, as gunja oil is mentioned in Appendix B to the Bules framed by the Central Government Under Section 23 of the Act. The contention is, accordingly, overruled.
6. The next contention of Mr. Boy is that the conviction of the petitioner cannot be maintained because Rules 18 and 7 (1) of the aforesaid Rules have been infringed. These rules run as follows :
18. A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public Analyst separately by registered post or delivered to him or to any person authorised by him.
7 (1). On receipt of a package containing a sample for analysis from a food .Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.
In support of his submission, learned Counsel relied upon the following lines in the evidence of P.W. :
Public Analyst ko jo Sishi bheja uske sath ek forwarding mamo bhi bheja-yah usi ka office copy hai Mark (?) jo mere hastlekh me hai Mark Ext. 5. Is par yah dastkhat mere hai Mark Ext. 5/1. Uske sath jo seal sishi par diya tha uska fhaisla (?) mili bhi forwarding note ke sath bheja aur ek formal (?) rakb liyay yah wahi formali seal ka hai mark Ext. II.
The submission of the learned Counsel has to be accepted. Under Rule 18a, specimen impression of the seal had to be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him and, under Rule 7 (1), the Public Analyst was required to compare the seal on the bottle and the outer cover with the specimen impression received by him separately and to note the condition of the seal thereon. The evidence of P.W. 2 quoted above makes it clear that specimen impression of the seal was not sent separately and by registered post. The registration receipt granted by the postal Department has not been filed nor has the acknowledgment receipt been brought on record. In absence of any evidence on record, it is not possible to hold that the specimen impression of the seal was sent separately and by registered post and, thus, the provisions of Rule 18 have been violated. Further, there is no evidence on record that the facsimile impression of the seal was actually received by the Public Analyst and, thus, Rule 7 -1) must also be deemed to have been violated. It was not the case of the prosecution that the impression of the seal was delivered to the Public Analyst personally or to any person authorised by him.
7. It is by now well-nigh settled that Rules 18 and 7 are mandatory and the non-compliance with either of them vitiates the trialvide Mary Lazrade v. State of Mysore A.I.R. 1966 Mya 244; State of Gujrat v. Shantaben ; State of Madhya Pradesh v. Abbasbhai Tyab Ali Bohra 1907 Cri L J 1723 (M P). All the above cases have been followed by. 8. P. Singh, J,, in Gopal Sao v. State of Bihar 1968 B L J R 308. The decision in Gopal Sao's case 1963 B L J R 308 has been followed in a large number of cases by various Judges of this Court sitting singlyvide Anand Mohan Ohoudhary v. State, Criminal Rev. No. 1868 of 1967, DA 21.8.1968 (Pat); Hariohand v. State of.Bihar, Criminal Revn. No. 704 of 1967, D/- 20.9.1963 (Pat); Chhedi Sah v. State; Criminal Revn. No. 945 of 1968 decided on December 1968; Qamruddin v. State, Criminal Eevn. No. 726 of 1968, D/- 21. 1-1969 (Pat); Baluram Agirwalla v. State Criminal Revn. No. 846 of 1968, D/. 17-2.-1969 (Pat); Badrisah v. State of Bihar 1969 Pat L J R 217 and others. learned Counsel for the State drew our attention to the Single Judge decision of the Allahabad High Court in Kamal Singh v. State 1957 All L J 89, wherein Rules 7, 15, 17 and 18 have been held to be directory; but I would prefer to follow a recent Bench decision of the Mysore High Court in Ala 1968 Mys 196, Belgauin Borough Municipality v. Shridhar Shankar Kundri, wheroin their Lordships held that Rules 7 and 18 were mandatory in nature and non-compliance with the same affected the evidentiary value of the report of the Public Analyst and, in the absence of extraneous evidence, vitiated the conviction. In that oase, their Lordships quoted with approval the following observations of Tukol, J., made in Mary Lazrado's oase:
The rules which prescribe the procedure to be followed in packing, sealing and despatching the same by the food inspector in the discharge of his duties serve two objects. Firstly, they leave no scope for tampering with the article of food which is once sealed and packed in the prescribed manner in the presence of respectable witnesses. Secondly, the requirement to send a specimen impression of the seal used by the food Inspector in a separate packet is to enable the Public Analyst to verify the seal of the packet of sample before him and to ensure him that the sample he is to analyse, is the self.same sample received from the Inspector. This method of check and verification provided foe by the rules is the only guarantee against tampering and is a definite source of confidence both to the accused and to the court that the sample analysed was the very simple which had been ... submitted by the food Inspector. In fact, it is the report or the certificate ia3ued after such analysis that virtually concludes the accused against himself. The procedure prescribed by the Rules serves a great public purpose by guaranteeing impartial and honest handling of the sample despatched to and received for analysis by the public Analyst;
To argue that the Rules could be regarded as directory because the accused is given the liberty of submitting the sample in his pos- j session for analysis is to render the guarantee afforded by the Rules meaningless. The burden of proving the guilt of the accused is on the prosecution and if the report or the certificate is to be used as evidence without calling the Public Analyst or the Director of the Central Laboratory for evidence as the law now permits then -it is imperative that all the rules prescribing the procedure commencing from the stage of purchasing the sample of food leading up to its analysis are strictly observed. To argue that the accused has got the liberty of getting his sample analysed to counteract the effect of the report of the Public Analyst is to require the accused in every case to prove his innocence.
With respect, I entirely agree with the observations made in the above case and hold that Rules 7 and 18 ate mandatory in nature and any non-compliance with the same makes the conviction illegal.
8. The application is, accordingly, allowed, the conviction and sentence of the petitioner are set aside and he is discharged from his bail-bond.
K.B.N. Singh, J.
9. I agree.