B.N. Sarma, J.
1. The petitioner Baidya Nath Sah, a dealer in food-stuff at Panigaon within Nowgong Municipality was convicted by the Chief Judicial Magistrate, Nowgong under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced to R. I. for 6 months and also to pay a fine of Rs. 1000/- in default to R. I. for 2 months. In appeal the Sessions Judge, Nowgong having affirmed the conviction and sentence of the petitioner, he has come up with the present revision petition.
2. The prosecution case, in brief, was that on 5-6-1971 Dr. M.D. Sadullah (P. W. 1) who is the Urban Health Officer of Nowgong Municipality took 375 ml. mustard oil as sample from the shop of the petitioner by observing the necessary formalities. A part of the sample was sent to the Public Analyst, Assam, for examination. The Public Analyst submitted a report after examination of the sample that it was adulterated as the sample was found to vary from the prescribed standard in regard to three ingredients, namely, B.R.R., saponification value and iodine value. Besides, trace of linseed oil was also found in the sample. On receipt of the report the Health Officer (P. W. 1), after obtaining sanction from the Chairman, Nowgong Municipality, filed a complaint before the Magistrate against the petitioner under the aforementioned section.
3. The prosecution examined three witnesses, including the Health Officer who took the sample and on their evidence a charge under the aforementioned section was framed against the petitioner to which he pleaded not guilty. The petitioner did not dispute the fact that on 5-6-1971 P. W. 1 took sample of mustard oil from his shop. He resisted the case on several grounds, alleging contravention of various provisions of the Act and of the Rules made thereunder. We are not concerned with all those grounds in the present revision as Mr. A. C. Bora, the learned Counsel for the petitioner has urged only two grounds before me, namely (1) that the provisions of Section 10(7) of the Act and Rule 14 of the Rules were not complied with in taking the sample of the mustard oil.
4. The trial Court as well as the appellate Court repelled all the contentions of the petitioner and found him to be guilty of the offence he was charged with.
5. The first contention of Mr. Bora, the learned Counsel for the petitioner before me is that the Health Officer (P. W. 1) did not observe the provisions of Section 10(7) of the Act inasmuch as he did not take the sample in presence of any independent witness. Although two witnesses, namely P. W. 2 Dehiram Saikia and P. W. 3 Fazar Ali were said to be present at the time of taking the sample, Mr. Bora has drawn my attention to their evidence that they actually came after the sample was taken and they did not see who took the sample and wherefrom the sample was taken. That being so Mr. Bora has contended that the provisions of Section 10(7) were not complied with and for that reason the petitioner is entitled to get acquittal. The effect of non-observance of the provisions of Section 10(7) came up for consideration before the Supreme Court in Prem Ballab v. State (Delhi Admn.) : 1977CriLJ12 . In that case Bhagwati J., speaking for the Court, observed as below:
There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law : if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bribing panch witnesses. The conviction of the appellants cannot, therefore, be assailed as infirm on the ground that it rested merely on the evidence of Bhanot and Bhatnagar.
6. It is thus seen from the above decision of the Supreme Court that an accused in a Food Adulteration case is not entitled to get acquittal merely because the provisions of Section 10(7) of the Act are not complied with, unless it is shown that some prejudice has been caused to him. The Legislature has enacted this provision to guard against any malpractice by a Food Inspector at the time of taking sample. In the instant case it is in evidence that the petitioner himself put the sample oil into the bottle. It was not suggested by him to any prosecution witness nor did he say in his statement under Section 313, Criminal P.C. that there was any material defect or foul play in taking the sample. In these circumstances there is no scope to hold that due to absence of any witness at the time when the sample was actually taken, any prejudice has been caused to the petitioner to entitle him to get an acquittal on that score.
7. The next contention of Mr. Bora is that the provisions of Rule 14 of the Rules which are mandatory according to him, were not observed in the present case and therefore, the petitioner should have been acquitted by the Courts below. In the trial court, it appears, the petitioner did not take this ground. It was not suggested to P. W. 1 or to any of the P. Ws. that the bottle in which the sample was taken was not clean or that it was not dry. The petitioner who himself poured the sample oil into the bottle, did not mention in his statement under Section 313, Criminal P. C. that the bottle was not clean or dry as required under Rule 14.
8. Mr. Bora has submitted that whether or not the accused took any such plea in his defence, it was obligatory on the part of the prosecution to lead evidence to show that the provisions of Rule 14, which are very material, were strictly observed. In support of this contention he relied on the decision of the Bombay High Court in B. A. Sawant v. State : AIR1969Bom353 ; Lachhman Dass v. State of Punjab 1972 FAC 752 (Punj); Sadhu Singh v. State 1975 FAC 295 (Punj); Ultadanga Oil Mill v. Corporation of Calcutta 1963 (2) Cri LJ 448 (Cal). In all these cases it was laid down that Rule 14 casts a duty upon the prosecution not only to comply with the mandatory provisions of law for using clean and dry bottles for storing the sample but also to lead evidence at the trial that the bottles used were clean and dry. As in the instant case no such evidence was led by the prosecution, Mr. Bora submitted, the petitioner is entitled to acquittal.
9. Mr. S. C. Das, the learned Public Prosecutor has vehemently resisted this contention. According to Mr. Das, taking of sample by Food Inspector under the Act is an official act and that being so under Section 114 of the Evidence Act, Illustration (e), it is to be presumed that it was regularly done, that means done in accordance with the Rules. Of course, this presumption is rebuttable, but as in the present case there is not even a suggestion, not to speak of any rebutting evidence, Mr. Das submits that the Court should presume that all formalities required by law and the Rules were observed by the Food Inspector while taking the sample. In support of this contention he relied on a decision of the Rajasthan High Court in Champalal v. State of Rajasthan (1977) 1 FAC 27 and also on a decision of the Supreme Court in Gopal Das Baheti v. State of Assam Cri. Appl. No. 4 of 1961 decided on 2nd day of May, 1962 : reported in 'Supreme Court on P. F. A. and Drugs Cases 1951-1977' at page 257. It was submitted in that case by the counsel for the appellant that the Health Officer in putting the sample of tea leaves in 'cloth sacks' violated the provisions of Rules 14, 15 and 16 framed under the P. F. A. Act and that on account of exposure to moisture because -of defective packing the samples must have deteriorated, and if they did not conform, on analysis, to the prescribed standard, the appellant could not be held guilty of the offence charged. The Supreme Court repelled this contention with the following observation:
There is no evidence on the record that the samples were not put in any suitable container .... sufficiently tight to prevent entrance of moisture'. The plea that the samples were not put into containers as required by the rules was never raised in the trial court nor even in the Sessions Court. It is true that in Ext. 2 which is the receipt given by the appellant to the Health Officer, it is stated that the sample was in a 'sealed sack' but there is nothing to show that this sealed sack was not put in a container as required by the rules. The Sessions Judge has found that the sample of tea leaves could not have deteriorated in the interval between the date on which it was attached and the date on which it was analysed.
10. It is clear from the above decision that there was no evidence from the side of the prosecution to prove that the provisions of Rules 14 to 16 of the Rules were duly complied with. Even then the Supreme Court rejected the above contention of the appellant on the ground that no such plea was taken by the petitioner in the Courts below. In view of this decision of the Supreme Court I am in respectful agreement with the view taken by the Rajasthan High Court in Champalal v. State of Rajasthan (supra) which has been relied on by the learned Public Prosecutor and with great respect I am unable to agree with the view taken in the cases relied on by the learned Counsel for the petitioner, as mentioned above.
11. In the instant case, as I have already observed, the petitioner did not even suggest to any of the P. Ws. nor did he mention in his statement under Section 313, that the bottle in which the sample was taken was not clean or dry, as required under Rule 14-That being so, it is difficult for this Court to hold, at this stage, that the provisions of Rule 14 were not complied with, as alleged.
12. The last contention of Mr. Bora is that even if the conviction of the petitioner is upheld, the case is covered by the proviso to Section 16(1) of the Act, as it then stood, inasmuch as the sample of mustard oil was found to be adulterated as it did not conform to the prescribed standard and thus bringing the case under sub-clause (1) of Clause (i) of Section 2 of the Act. Mr. S.C. Das, the learned Public Prosecutor does not dispute that the case of the petitioner comes under sub-clause (1) of Clause (i) of Section 2 of the Act, but he submits that the petitioner is not entitled to get a lenient treatment simply because it is covered by sub-clause (1) unless there is some special reason to deal with him leniently. According to him in the instant case there is no such extenuating circumstance to deal with the petitioner leniently,
13. The variations found in the report of the Public Analyst from the prescribed standard do not appear to be great. It appears from the record that the petitioner filed an application before the Court to summon the Public Analyst for cross-examination at the cost of the State due to his inability to bear the expenses and this application was rejected by the Court. This shows that the petitioner is a poor shop keeper. It is also seen that the petitioner has already served 20 days of his sentence of imprisonment In these circumstances I feel that it will meet the ends of justice if the sentence of imprisonment is reduced to the period already served by him. In this view of the case I reduce the sentence of imprisonment from R. I. for six months to the period already served by him; but I maintain the fine of Rs. 1000/- imposed by the learned Court below. With this modification of the sentence, the revision petition is dismissed.