B.N. Sarma, J.
1. This is an appeal with special leave Under Section 417(3) of the Criminal P. C. against the order of the Magistrate First Class (J), Tezpur, dated 27-11-1970 passed in C. R. Case No. 1217 of 1969, acquitting the respondents Mohanlal Tibriwal and Jugal Kishore Tibriwal of the charge Under Section 16 read with Section 7(i) of the Prevention of Food Adulteration Act, 1954, hereinafter called the Act. The case was instituted upon a complaint filed by the Chairman of the Tezpur Municipal Board, the appellant herein. The relevant facts may be stated in brief as below :
On 13-2-1969 Shri K. K. Ohoudhury, Urban Health Inspector, Tezpur, took samples of mustard oil from two tins in six bottles (in three bottles from each tin) from the premises of Shri Ganesh Das Oil and Rice Mills, Tezpur, in accordance with the relevant provisions of the Act and the Rules thereunder, on payment of the price thereof to respondent No. 1, Shri Mohanlal Tibriwal in presence of the respondent No. 2, Jugal Kishore Tibriwal, who is said to be a partner of the firm, owning the mill. After this, two bottles- one from each tin, were sent to the Public Analyst at Shillong for analysis. The Public Analyst, who received the sample on 21-2-1969, submitted his reports (Exts. 4 and 5) on 19-4-l969 to the effect that the samples did not conform to the standard. It was stated in each report that trace of sesame oil was present. The other ingredients were found according to the prescribed standard. After receipt of the reports of the Public Analyst, the Chairman of the Municipal Board lodged the complaint in Court on 14-5-1969 and accordingly both the accused respondents were summoned under the aforesaid section. On 29-1-1970, before any evidence was adduced in the case, the complainant, filed a petition before the Court Under Section 13(2) of the Act for sending the samples, given to the accused, to the Central Food Laboratory. This application was posted for hearing on 16-2-1970. As, on this date the respondents remained absent without showing any cause, the magistrate ordered for sending one of the sample bottles retained with the complainant to the Director of Central Food Laboratory, shortly the Director. On the same day, a sample bottle taken from the possession of the complainant was sent by the magistrate to the Director. The Director received the sample on 24-2-1970 and after analysis submitted a report (Ext. 9) on 18-3-1970 with the opinion that the sample was adulterated. The report reveals that the saponification value in the oil was found to be 177.4 i. e. 1.4 in excess of the prescribed limit. The other ingredients were found to be within the limit. The report does not indicate that any trace of sesame oil was found in the sample.
2-3. After receipt on the report of the Director, the complainant examined two witnesses, namely, K. K. Choudhary, Urban Health Officer, Tezpur (P. W. 1) and Shri Milan Das (P. W. 2) an employee of the Municipal Board and upon their evidence a charge Under Section 7(i) of the Act read with Rule 44 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) was framed against the respondents on the allegation that they manufactured and stored adulterated mustard oil for sale. Both the respondents pleaded not guilty. Respondent No. 1 denied that any adulterated mustard oil was stored by him. Respondent No. 2 stated that he had no connection with the Mill in question. No evidence was, however, adduced on behalf of the defence.
4. On a consideration of the evidence adduced by the complainant the learned Magistrate found that except the solitary statement of P. W. 1 there was no evidence to prove that the respondent No. 2 is the owner or partner of the mill in question. He further found that the requirements of Sub-section (7) of Section 10 of the Act were not fulfilled, in that no person was called from the neighbourhood to witness the taking of the samples. He also found that there is no evidence to show that the bottles in which the samples were taken were dry at the time, as required Under Rule 14. On account of the delay in submission of the report and for want of any evidence in what manner the samples were preserved and also in view of the discrepancy between the report of the Public Analyst and that of the Director, the learned Magistrate found it difficult to act on the report of the Director. In the result he held that the accused persons were not guilty of the charge and acquitted them thereof.
5. Mr. P. G. Barua, the learned Counsel for the appellant submitted before us that the learned Magistrate was wrong in rejecting the report of the Director, in view of the discrepancy with that of the Public Analyst, as Under Section 13(3) of the Act the report of the Director supersedes the report of the Public Analyst. According to him, there was no contravention of any Rule in taking the samples and the reports of the Public Analyst, as well as that of the Director, proved beyond doubt that the mustard oil from which the samples were taken was adulterated, firstly, because of the trace of sesame oil as found by the Public Analyst and, secondly, because of the excess of saponification value as found by the Director.
6. Mr. J. P. Bhattacharjee, the learned Counsel appearing for the respondents resisted' the above contentions of Mr. Barua. According to him the prosecution of a partner of a firm in the absence of prosecution against the firm, which is a company within the meaning of Section 17 of the Act, is not maintainable. In making this submission he relied on a single Bench decision of this Court in Hanuman Prasad Lohia v. State of Assam, 1973 Assam LR 169, where it was held that in such a case the company also must be prosecuted. At any rate, he submitted that there is no case against the respondent No. 2, for the simple reason, that there is no evidence at all to show that he is a partner of the firm owning the mill, far less to prove that he was in charge of, and was responsible to, the Company, for the conduct of the business of the company, as required Under Section 17(1) of the Act. Mr. Bhattacharjee supported all the findings of the learned Magistrate.
7. Though in the single Bench decision of this Court in Hanuman Prasad Lohia v. State of Assam, 1973 Assam LR 169, in agreement with the decision of the Madras High Court in B. K. Verma v. Corporation of Madras : AIR1971Mad40 , one of us (Sarma J.), took the view that prosecution of a partner without the prosecution of the firm itself is bad, we are now of the opinion that it was not a correct view. What Sub-section (1) of Section 17 provides, is that in such a case besides the person, who at the time the offence was committed, was in charge of and responsible to, the Company for the conduct of the business of the Company, the Company (which also includes a partnership) would also be deemed to be guilty and shall be liable to be proceeded against. It will be straining the language of this sub-section too much, to hold that such a partner cannot be prosecuted unless the firm is also prosecuted. But then, the other view taken in the case, namely, that to successfully prosecute a partner in such a case, the prosecution must prove that such a partner was in charge of and responsible to the firm, for the conduct of the business of the firm, at the time of the commission of the offence, was correct and it finds support from the decision of the Supreme Court in Manibhai v. State of Maharashtra : 1974CriLJ451 .
8. In the instant case there is no evidence at all except the oral statement of P. W. 1 to prove that respondent No. 2 Jugal Kishore is a partner of the firm owning the mill, not to speak of any evidence to prove that he was in charge of, and responsible to, the firm for the conduct of the business of the firm, at the time of the alleged offence. P. W. 1 simply stated that respondent No. 2 was also present at the time of taking the sample. He is belied by his own document in this regard. The notice Ex. 2 was addressed by him to respondent No. 1 and one R. K. Tibriwal. If respondent No. 2 was present at the time of taking the sample, it has not explained, why the notice was given to R. K. Tibriwal and not to respondent No. 2. In these circumstances we have no hesitation to hold that there is no case against the respondent No. 2 Jugal Kishore Tibriwal. The learned Counsel for the appellant also did not seriously dispute this position.
9. The respondent No. 1 has not denied that the samples of mustard oil were taken from him on payment of the price. His only contention was that the sample was not adulterated. The point for determination, therefore, is whether the prosecution has been able to prove that the sample taken from the respondent No. 1 was actually adulterated.
10. As we have already observed, the report of the Director does not indicate that there was any trace of sesame oil in the sample. The only defect found in the sample by the Director was that there was excess of saponification value, which was found to be 177.4, as against the prescribed limit of 176, at the relevant time. Even so, the learned Counsel for the appellant submitted, on the basis of the reports of the Public Analyst, that the sample contained trace of sesame oil and that this was an additional ground to hold that the sample was adulterated. As pointed out by Mr. Barua himself, while arguing the case on the saponification value, the report of the Public Analyst is superseded by the report of the Director, as provided in Section 13(3) of the Act. The report of the Director supersedes the report of the Public Analyst for all purposes. The appellant cannot be allowed to rely on a part of it which goes against the respondents and to reject another part which goes in favour of the respondents. The contention of Mr. Barua that the sample is adulterated for the reason that it contained sesame oil must be rejected, outright.
11. So far as saponification value is concerned, the report of the Director, no doubt, shows that it was 177.4 in place of 171.2, as found by the Public Analyst. The prescribed limit at the time was 1'68 to 176. It may be mentioned here that by the amendment of the relevant Rule in 1976, the limit has now been raised to 177.
12. Mr. Barua, on behalf of the appellant, submitted that, as laid down in the proviso to Sub-section (5) of Section 13, the certificate of the Director is final and conclusive evidence of the fact that the saponification value in the sample was 177.4 i. e. higher than the prescribed limit and, that being so it must be held to be adulterated within the meaning of Clause (b) of Section 2(i) of the Act. Mr. Bhattacharjee, the learned Counsel for the respondents, does not dispute this position. He however submits that the report of the Director is no proof of the fact that the sample examined by him was the sample taken from the respondent ; nor does it go to prove that the same was adulterated at the time it was taken. It only proves that the sample was found to be adulterated at the time of examination at the Central Food Laboratory. He submitted that no reliance can be placed on the report of the Director (Ext. 9) to hold that the respondent No. 1 manufactured or stored for sale adulterated mustard oil, for the following reasons :
(i) the Health Officer did not weigh or measure that oil at the time of taking the samples ;
(ii) the prescribed formalities were not observed while sending the sample to the Director ;
(iii) there was inordinate delay in sending the sample to the Director and the possibility of the rise in saponification value due to this delay, cannot be ruled out.
13. Rule 22 of the Rules stated that in case of edible oil the quantity of sample to be supplied to the Public Analyst or the Director shall be approximately 125 grams. P. W. 1 stated in his evidence as well as in the notice Ext. 2 that he took 125 grams of mustard oil, in each bottle. He however stated that the oil was not weighed, 'as the bottles were brought by measuring,'
14. Mr. Bhattacharjee submitted, with reference to the provisions of Rule 22. that in the case of milk and aerated water the quantity to be supplied to the Public Analyst is mentioned in terms of milli-litres, whereas, in case of other articles it is mentioned in terms of grams. According to him the articles, in case of which the samples are to be supplied in grams, must be weighed and failure to do so would vitiate the proceeding. In support of this contention he relied on the decision of the Supreme Court in R. G. Pamnani v. State of Maharashtra : 1975CriLJ254 .
15. Rule 22 of the Rules speaks of only approximate quantity and not exact quantity. Therefore, if the samples were taken in bottles with the capacity to contain approximately 125 grams oil, there was substantial compliance with the Rules, in our opinion. It was not suggested by the defence to P. W. 1 that the bottles were too small to contain 125 grams of oil. The facts of the case reported in : 1975CriLJ254 have got no bearing on the present case, in that case the Food Inspector purchased only 300 grams of asafoetida from the dealer for three samples, whereas, the Rule requires that approximately 200 grams should be supplied to the Public Analyst. The quantity supplied to the Public Analyst could not, evidently, exceed 100 grams. In that view of the matter the Court held that non-compliance with the quantity to be supplied causes not only infraction of the provisions of the Rule but also injustice.
16. So far as the second ground is concerned Mr. Bhattacharjee submitted that there was non-compliance with the provisions of Sub-rule (3) of Rule 4 which deals with the procedure of sending the samples to the Director of Central Food Laboratory. According to Mr. Bhattacharjee the provisions of this Rule are mandatory and non-compliance with the same is fatal for the prosecution. Rule 4(3) is in the following terms--
4 (3). A copy of memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director.
17. P. W. 1 in his evidence stated that he did not see the magistrate doing anything except marking the seal. There is nothing in the record to indicate that a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover were sent, separately, by registered post to the Director. The report of the Director (Ext, 9) does not mention that any such memorandum or specimen impression of the seal were received by him from the magistrate. Neither the registration receipt nor the acknowledgement receipt in this connection was produced before the Court to show that the memorandum and the specimen impression of the seal were actually sent to the Director by registered post. We do not think that in the absence of any such material we can presume Under Section 114 of the Evidence Act that the rules were followed. The true effect of Section 114 of the Evidence Act is that if an official act is proved to have been done it will be presumed to have been regularly done. It does not raise any presumption that an act was done, of which there was no evidence and the proof of which is essential for the success of the prosecution. At any rate, the presumption Under Section 114 of the Evidence Act is only optional. In a case of this nature fraught with serious consequence to a party, we are unable to presume that the memorandum and the specimen impression of the seal were separately sent by registered post to the Director, in the absence of any evidence in that regard.
18. Rule 4(3) is analogous to Rule 18 which deals with the procedure of sending such sample to the Public Analyst. In a number of decisions of different High Courts Rule 18 has been held to be mandatory. In Mary Lazardo v. State of Mysore 1966 Cri LJ 1036 : AIR 1966 Mys 244 it was held :
This method of check and verification provided for 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 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.
On this reasoning, the view taken was that the Rules 7 and 18 of the Rules are mandatory and hence non-compliance with them affects the evidentiary value of the report of the Public Analyst and the conviction solely based upon it cannot be sustained.
19. Similar view was taken by the Gujarat High Court in G. H. Rabari v. S. V. Pandya : AIR1970Guj235 and by the Patna High Court in Daitari Mahto v. State 1971 Cri LJ 129 (Pat) and in many other cases.
20. We are in respectful agreement with the decisions in the above cases and we feel constrained to hold that the appeal cannot succeed for this infirmity in the case.
21. The other ground taken on behalf of the respondents is that there was inordinate delay in sending the sample to the Director. According to Mr. Bhattacharjee the rise in the saponification value to 177.4 in the sample when it was examined in the Central Food Laboratory from 171.2 as found by the Public Analyst, was very likely, due to this delay. This contention cannot be brushed aside lightly. In the book 'The Chemical Analysis of Foods' by David Pearson, Sixth Edition at p. 512--Saponification value of oil or fat has been defined as
the number of mg. of potassium hydroxide required to neutralise the fatty acids resulting from the complete hydrolysis of 1 g. of the sample.
This goes to show that higher the rate of fatty acids in any oil the higher the saponification value will be. P. W. 1 admitted in his cross-examination that when kept for long, the oil gets deteriorated due to increase in acids.
22. Mr. Barua, argued that mustard oil does not deteriorate with the lapse of time. In support of this contention he relied on a decision of the Allahabad High Court in State of U. P. v. Gauri Shankar 1974 FAC 407 : 1973 Cri LJ 910 (All), where P. N. Bakshi J., speaking for the Court observed :
Under the Food Adulteration Act rules have been framed for mixing preservatives in samples which are liable to deterioration. For instance formaline is mixed when a sample of milk is taken. This prevents the sample from deteriorating. For other articles different preservatives have been prescribed under the Food Adulteration Act, which are mixed therewith for the purpose of preserving the constituents of the sample. It is significant that mustard oil does not find place anywhere in these rules, or schedule, as a substance in which a preservative must be mixed at the time of taking the sample. The reason for this is obvious. Mustard oil does not deteriorate with lapse of time. On the contrary it is common experience that the quality of the mustard oil improves with the lapse of time, A3 a matter of fact, mustard oil itself is sometimes used as a preservative for pickles and the like.
23. With great respect to the learned Judges, we are unable to agree with the above view. There is no scientific authority in support of the view that the quality of mustard oil improves with the lapse of time. On the other hand, in the above mentioned book of David Pearson at p. 514 we find that 'with most oils and fats, the free acidity increases during storage'. It is further stated in the same book at the same page :
fats undergo changes during storage which result in the production of an unpleasant taste and odour, which is commonly referred to as rancidity.
It is thus seen that with the lapse of time oil and other fatty substances start deteriorating. The reason why no preservative is used at the time of taking sample of mustard oil is that it is not as quickly perishable as milk or similar other articles. It takes sufficient time for deterioration and within such period, it is expected that the analysis by the Public Analyst Or the Director would be completed.
24. Section 13(2), as it stood at the relevant time, provides that after the institution of a prosecution under the Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending a part of the sample mentioned in Sub-clause (i) of Sub-clause (iii) of Clause (c) of Sub-section (1) of Section 2 to the Director of the Central Food Laboratory for a certificate. This does not mean that at any time after the prosecution is launched, irrespective of the time elapsed, such an application will be allowed. The sentence 'after the institution of a prosecution' occurring in this section means, in our opinion, as soon as possible after the institution of a prosecution. To remove all confusion in this regard the Legislature has now amended the sub-section by Act XXXIV of 1976. The amended Section 13(2) is as below :
13(2). On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated the local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of food was taken and the person, if any, whose name, address and particulars have been disclosed Under Section 14A forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory.
25. Section 13(2), as amended, requires the Local Health Authority to send a copy of the report of the Analyst to the person or persons concerned, after the prosecution is launched and the time limit provided for making an application to the Court for sending the sample to the Director is only ten days from the receipt of such copy by the person or persons against whom the prosecution is launched.
26. In the instant case the sample was taken from the respondent No. 1 on 13-2- 1969 the Public Analyst submitted his report on 19-4-1969 ; the case was instituted on 14-5-1969 ; the application to the Court for sending the sample to the Director was made by the complainant on 29-1- 1970, i. e., after about eight months from the date of launching the prosecution, without assigning any reason for such long delay. It is thus seen that the sample to the Director was sent from the Court after more than a year from the date on which the sample was taken. Slight increase in the saponification value on account of this delay cannot, therefore, be ruled out, in our opinion.
27. On a consideration of the facts and circumstances of the case and upon the evidence on record as discussed above we do not find good and sufficient ground to interfere with the order of acquittal recorded by the learned Magistrate. The judgment and order appealed against are accordingly affirmed and the appeal is dismissed.
Ibotombi Singh, J.
28. I agree.