Patna High Court
Gopal Sao vs State Of Bihar on 19 March, 1968
Equivalent citations: 1968(16)BLJR308
JUDGMENT S.P. Singh, J.
1. This application in revision has been preferred by Gopal Sao, a resident of Aurangabad town in the district of Gaya, who has been convicted of the offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954, and sentenced to rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/-, and in default to undergo rigorous imprisonment for two months by Shri Murli Prasad Sinha, Munsif Magistrate 1st class, Aurangabad and whose appeal has been dismissed by the Sessions Judge of Gaya.
2. It appears that on 18-12-1966 Mr. Abuzaffar Khan, a Sanitary Inspector of Aurangabad Notified Area Committee, acting as a Food Inspector, took certain quantity of mustard oil as sample from the shop of the petitioner in presence of his two peons. He divided the sample in three containers and gave one to the petitioner, sent another to the Public Analyst, Patna and kept the third one in his office. On receipt of the report of the Public Analyst showing that the sample sent to him was adulterated with linseed oil a prosecution was started against the petitioner with the result mentioned above.
3. Mr. Anjani Kumar Saran, appearing for the petitioner, has urged that the conviction of the petitioner cannot be maintained on account of the non-compliance of Rule 7 of the Prevention of Food Adulteration Rules and also for want of proper proof of the fact that the Sanitary Inspector of Aurangabad Notified Area Committee was authorised to act as a Food Inspector to take samples from the shop of the petitioner.
4. That a sample of mustard oil was taken on 18-12-1965 from the shop of the petitioner by Mr. Abuzaffar Khan (P.W. 2) who happened to be the Sanitary Inspector employed in the Aurangabad Notified Area Committee is not disputed. The question for consideration is whether P. W. 2 was authorised to take sample and if so, whether Rule 7 was complied with by the Public Analyst while examining the sample. In proof of the fact that Abuzaffar Khan (P. W. 2) was appointed a Food Inspector to exercise his powers within the local limits of Aurangabad Notified Area, a typed copy of the gazette notification dated the 22nd of July, 1963, issued by the Health Department, was produced in the trial court and marked as exhibit 3. Learned Counsel for the petitioner has urged that a mere typed copy attested by the Chairman of the Notified Area Committee could not be admitted into evidence. He has, in this connection, referred to a decision of this Court in the case of Janu Khan and Ors. v. The State showing that under Section 78 of the Evidence Act a copy of the gazette notification has to be certified by the head of the department which issued the notification. It can also be taken into evidence if the official gazette in which the notification purported to have been printed by order of the Government has been produced for inspection of the Court. Evidently, the copy of the notification which was produced in the trial court had not been authenticated by the head of the department. A mere attestation made by the Chairman of the Notified Area Committee is not enough obviously because it is not the Chairman who issued this notification. Learned Counsel, appearing for the State, has however, produced the printed copy of gazette notification here in this Court showing that the Sanitary-Inspector of Aurangabad Notified Area had been appointed to exercise the powers of a Food Inspector within the local limits of the said area as provided under the Prevention of Food Adultration Act.
5. Another objection of learned Counsel for the petitioner is that the copy of the notification regarding the application of the provision of the Prevention of Food Adulteration Act to the Aurangabad Notified Area was also not admissible as a mere typed extract of the gazette notification was produced. Furthermore, learned Counsel's argument is that there was no evidence to show that the petitioner's shop was within the local limits of the Notified Area. So far as the first objection raised on behalf of the petitioner is concerned, no doubt the copy of the notification that was produced in the trial court could not have been legally admitted into evidence. The gazette notification dated 12th October, 1955, however, has been produced in this Court from which it appears that under Section 2 of the Prevention of the Food Adulteration Act, 1954, all Municipalities, cantonments and Notified Areas were declared to be the local areas for the purposes of the Prevention of Food Adulteration Act. It would, thus, appear that the provisions of the Food Adulteration Act were applicable to the Aurangabad Notified Area. It cannot be said that the petitioner has been prejudiced on account of the production of the printed copy of the gazette notifications here because their typed copies had been produced in the trial court and at no stage it was urged on behalf o£ the petitioner that P. W. 2 had no authority to take samples or that Aurangabad was not a notified area. The aforesaid notifications therefore, could be perused here for clarification of the doubt that had been created.
6. So far as the existence of the shop of the petitioner within the local limits of the Notified Area was concerned, it appears from the evidence of P. W. 2 that the shop in question was within the bazar area of Aurangabad town. There could, therefore, be no difficulty in holding that the shop in question lay within the Notified Area. It is significant to mention that no such objection was taken either in the trial court or even at the appellate stage.
7. The next question for consideration is whether the samples were taken by the Food Inspector according to the rules prescribed under the Act and were examined by the Public Analyst in accordance with those rules. Learned Counsel for the petitioner has urged that there is nothing in the report of the Public Analyst (exhibit 4) to show that he complied with the provisions of Rule 7 of the Prevention of Food Adulteration Rules. Rule 7 provides as follows:
7. Duties of a public analyst: - (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.
(2) The Public Analyst shall cause to be analysed such samples of articles of food as may be sent to him by the food inspector or by any other person under the Act.
(3) After the analysis has been completed he shall forthwith supply to the person concerned a report in Form III of the result of such analysis.
Rule 18 of these rules provides that after the sample is taken by the Food Inspector, a copy of the memorandum and 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. It is on receipt of the sample packet that the Public Analyst before the commencement of the examination has to compare the seals on the container and the outer cover with the specimen impression received separately by him and he has to note the condition of the seals there on as provided under Rule 7. In this case it appears from the evidence of P. W. 2 that he did send a memorandum and a specimen impression of the seal used to seal the packet to the Public Analyst. But the report of the Public Analyst submitted in Form III (exhibit 4) does not at all show whether he received the memorandum and specimen impression of the seal sent to him separately by registered post as stated by P. W. 2 and if so, whether he compared the seals on the container and the outer cover with the specimen impression received separately. No doubt, the Public Analyst is to send his report in Form III as provided by sub-Rule (3) of Rule 7, which does not provide a column for mentioning the fact as to whether or not the Public Analyst compared the seals on the container and the outer cover with the specimen impression as required under sub-Rule (1) of Rule 7.
8. The question for consideration is as to whether a presumption as mentioned in illustration (e) to Section 114 of the Evidence Act can be raised in favour of the Public Analyst. In a Bench decision of this Court in the case of Commissioner, Purnea Municipality v. Faleh Chand Ranka I.L.R. 36 Pat. 989 their Lordships have held that illustration (e) to Section 114 of the Evidence Act only means that, if an Official Act, is proved to have been done, it will be presumed to have been regularly done; but it does not raise any presumption that an act was done for which there is no evidence and proof. It merely raises a presumption as to the regularity of procedure, if the official act is as a matter of fact proved to be done and not otherwise. In the present case had there been any material on the record to show that the Public Analyst had received the specimen impression and he compared the same with the seals on the container, a presumption to the effect that what he did must have been regularly done in accordance with rules could be raised. But in absence of any evidence to that effect, it is not at all possible to raise that presumption. In other words, I have to hold that there is nothing on the record to indicate that provisions of Rule 7(1) were complied with.
9. The next question that arises for consideration is whether non-compliance of this provision has the effect of vitiating the trial and conviction of the petitioner. If Rule 7 is a mandatory provision of the Statute, it will have that effect. If, on the other hand, it is merely directory, in that case the irregularity committed on account of the non-observance of the rule in question will not vitiate the trial. In the case of Mary Lazrado v. State of Mysore and Anr. A.I.R. 1966 Mysore 244 his Lordship T.K. Tukol, J. after an examination of the scheme of the various Section s of the Act and the rules framed thereunder, observed as follows:
The method of checking and verification provided for by the Rule 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 sample which had been submitted by the Food Inspector. In fact, it is the report or the Certificate issued 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 possession 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 Food 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.
In a Gujarat case, State of Gujarat v. Shanlaben the same view was expressed; namely, that where the report of the Public Analyst merely shows that the seals were intact and unbroken, but it does not show that the seals on the container were compared with the specimen seals sent by post to the Public Analyst, the Court cannot be sure that the sample, which had reached the Public Analyst, was not tampered with on the way. Rules.7 and 18 are framed in order to prevent such a possibility, It would, thus, appear that the provisions of Rules 7 and 18 are mandatory and non-compliance of either of these rules will cording to law. If "superior court" of the Madhya Pradesh High Court, State of M.P. v. Abbasbhai Tyab Ali Bohra 1967 Cr. L.J. 1723 their Lordships, relying upon the Gujarat case, have observed as follows:
The report of the Public Analyst is admissible under the Act provided certain formalities are observed. If the formalities are not observed, the report cannot be made admissible. That shows that the rules are mandatory. As the rules are mandatory there cannot be a presumption that official acts have been properly performed.
In the instant case, therefore, I have no option but to hold that the conviction of the petitioner is vitiated on account of the non-observance of Rule 7(1) of the Prevention of Food Adulteration Rules.
10. Learned Counsel for the petitioner has also urged that even the Food Inspector (P.W. 2) did not comply with the provisions of Rule 14 of the Prevention of Food Adulteration Rules which provides that samples of food for the purpose of analysis shall be taken in clean dry bottle or jars or any other suitable containers which shall be closed sufficiently tight to prevent leakage, evaportion or in the case of a dry substance enterance of moisture and shall be carefully sealed. According to learned Counsel, the evidence of one of the peons shows that on one and the same day, the Food Inspector (P. W. 2) took several samples from the shops of different dealers one after the other in the same jar and each time while taking the sample, the contents of the jar used to be wiped out with a towel. Learned Counsel's argument is that because the jar in which samples were taken was not thoroughly cleansed each time before taking another sample, the possibility of the mixture of the sample taken from one shop with those taken from the other shops could not be ruled out. From the evidence of the Food Inspector, however, it is clear that he used to clean the jar thoroughly before he took the sample of oil from any other shop in it, and as such, it is not possible to speculate that the samples taken by him were not in clean dry bottles or jars as required under Rule 14 of the Prevention of Food Adulteration Rules. No significance can be attached, therefore, to this part of the argument of learned Counsel for the petitioner. In view, however, of the fact that the provisions of Rule 7(1) of the Prevention of Food Adulteration Rules have not been observed in this case as indicated above, the conviction and sentences of the petitioner have got to be set aside.
11. The question is whether. it is necessary to send back this case for a retrial in order to give a chance to the prosecution to examine the Public Analyst with a view to show as to whether or not he had complied with Rule 7(1). Having regard to the fact that the petitioner has already suffered enough by being subjected to a prolonged prosecution, I do not think it is now necessary to order a retrial of the petitioner. The application is, accordingly, allowed and the conviction and sentences of the petitioner are set aside.