1. This appeal is from the judgment of acquittal of the charge Under Section 7/16 of the Prevention of Food Adulteration Act. shortly 'the Act.
2. The District Food Inspector of Jorhat purchased 450 grams of 'Kashmiri Mirchi Powder' from the respondent's shop 'Bisudha Masala Bhandar' for the purpose of analysis and sent one pun of the sample to the Public Analyst who reported it to be of adulterated chillies powder which wits artificially dyed with prohibited coal tar dye prosecuted, the respondent was charged Under Section 7 read with Section 16 of the Act to which he pleaded not guilty.
3. At the trial, the prosecution examined 3 while the defence examined 2 witnesses including the accused-respondent himself. As the respondent challenged the report of the Public Analyst, the sample produced by the Food Inspector in Court was sent to the Director, Central Food Laboratory, Calcutta Under Section 13(2) of the Act who also reported the sample to be adulterated. In his statement the respondent did not deny that the Food Inspector obtained the sample of chillies powder from him for the purpose of analysis but said that the chillies powder in question was not meant for sale as it did not belong to him but was brought by his customer, Chiranjilal More for grinding in hisChakki Mill. Before the trial Court the defence urged four grounds, namely, (i) that the Food Inspector had not complied with the mandatory provisions of Rule 14 of the Prevention of Food Adulteration Rules.1955, shortly 'the Rules' inasmuch as there was nothing to show that he took the chillies powder in clean dry bottles and hence the certificate of the Director, Central Food Labouratory could not be relied upon ; (ii) that there was no proper sanction order ; (iii) that the sample was analysed by the Central Food Laboratory after lapse of about three years from the date of collection and it underwent changes during this period ; and (iv) that there was no sale of the sample within the meaning of Section 2(xiii) of the Act in view of the statement of the respondent that it belonged to his customer. The trial court rejected grounds Nos. (ii), (iii) and (iv) but found sufficient force on the first ground i.e. ground No. (i). holding that the prosecution hud failed to establish that the containers of the chillies powder were dry and clean as enjoined by Rule 14 of the Rules and acquitted the respondent giving him benefit of doubt. Hence this appeal.
4. The learned Public Prosecutor, Mr. P.C. Gayan, submits that the District Food Inspector having deposed that he collected the samples by observing the requisite formalities and there being no cross-examination on the question whether the bottles were clean and dry, the court ought to have presumed that the official acts were properly done and it committed error in acquitting the respondent. Mr. S.S. Sarma, the learned Counsel for the respondent, counters submitting that a duty was cast upon the prosecution to comply with the mandatory provisions of Rule 14 by using clean and dry bottles for taking the samples and also to lead evidence at the trial to show that the bottles used were clean and dry. These having not been done, the respondent was rightly acquitted on benefit of doubt.
5. To appreciate the controversy we may refer to the relevant provision of law and the evidence on record. Rule 14 deals with the manner of sending samples for analysis. It provides :
Samples of food for the purpose of anlysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.
6. Ext. 1 is the notice in Form VI. It does not mention that sample of 450 grams of Kashmiri Mirchi Powder was taken in clean dry bottles or jars or in any other suitable containers. Ext. 2 is the receipt for the sum of Rs. 6.75 being the price of 450 grams of Kashmiri Mirchi Powder. There is no mention of any container into which each part of the sample was put. P.W. 1 is the District Food Inspector. He deposed. 'I purchased 450 grams of Chilly powder and the accused issued a receipt. Ext. 2 is that receipt. Ext. 2(1) is the signature of the accused which was put in my presence. I divided the purchased Chilli Powder in three equal parts. I packed and sealed them in presence of the accused and the witnesses. I gave one of the sealed samples out of them to the accused. I sent the second one for examination to the Public Analyst through the Civil Surgeon of Jorhat. I kept the third one in my custody'. There was no cross-examination as to the type of containers used for putting the samples in P.W. 2, Madan Chandra Bora, is a peon in the Civil Surgeons's office. He deposed ; 'The accused was informed about taking sample. The accused gave grams of Chilli powder by weighing. The chilli powders were divided into three parts'. There was no cross-examination as to the type of the containers used for taking the sample.
7. From the above evidence on record several questions arise. Can it be said that the prosecution has proved directly that Rule 14 of the Rules, in the matter of use of clean dry bottles or other suitable containers for storing the sample, was complied with? If that was not done, then the question is, was it at all necessary for the prosecution to prove that the relevant Rules were fully complied with? Was it permissible for the Court in the absence of any direct evidence on record to presume that the Rules in this respect were duly complied with? Again, could it be held that in the absence of any cross-examination on the question the Court was to presume compliance with the requirement of law as to use of clean dry bottles or other suitable containers for storing the sample?
8. In the case of food adulteration offences the law does not impose strict or absolute liability on the accused. The prosecution has, therefore, to prove that the offence has been committed by the accused. The onus is on die prosecution to prove its case and the chain of evidence to sustain conviction should be complete. As was reiterated in Nisar Ali v. State of U.P. : 1957CriLJ550 , it is the cardinal principle of criminal jurisprudence that innocence of the accused is presumed till it is otherwise proved and that it is the duty of the prosecution to prove the petitioner's guilt, subject, of course, to any statutory exception. There being no statutory exception in the Act, the prosecution has to prove that the accused has committed the offence he is charged with under the Act. This was followed in Sitaram Thirani v. State of Orissa 1977 Cri LJ 681 where R.N. Misra, J. as he then was, observed that the fact that the offence was serious and the consequence was disastrous did not relieve the prosecution of proving its case beyond reasonable doubt as in any other case ; and on the other hand, it was appropriate that the prosecuting agency took adequate care to comply with the requirements of law and did not allow such anti-social offences to go unpunished for technical lacunae. The court should normally insist on strict proof of the offences alleged to have been committed by the accused in the manner required by law. The principles of circumstantial evidence will, of course, be applicable. There can, therefore, be no doubt that it was the burden of the prosecution to prove that the sample was stored in clean dry bottles or in any other suitable containers as required under Rule 14. Only when evidence is produced to that effect or statement is made that the requirements were complied with, the question of cross-examination on the point would arise. Where evidence is led to that effect and defence failed to cross-examine and the accused did not challenge it in his statement the court will have no material to doubt the evidence. Often it is found that the Food Inspector deposes that he collected the samples after complying with all the requirements of law without specifying the different steps. In such a case in the absence of cross-examination, and its denial by the accused in his statement Under Section 342, Cr.P.C. considered in the light of the other evidence on record, it may be reasonable for the court to presume that the requirement as to clean dry bottles or other suitable containers was also complied with. Where the prosecution has failed to make even such a statement it would not ordinarily be reasonable for the court to presume what was not at all expressly or impliedly stated in evidence. It is an accepted principle of evidence that suspicion, however, strong, cannot take the place of proof. In case of circumstantial evidence there must be no missing link. In the absence of any such evidence the veracity of the Food Inspector may also be doubted.
9. In B. A. Sawant v. State AIR I960 Bom 353 : 1969 Cri LJ 1344 it has been observed that the breaches in the performance of his duties under Rule 14 may not necessarily result in vitiating the trial, but it certainly affects his credibility and that the Food Inspector who does not care to follow strictly the mandatory provisions of the Act and the Rules with which he is vitally concerned cannot be assumed to have much regard for truth. Even supposing that he may be truthful, the rule of prudence requires care to insist on some corroboration to his evidence. In that case the Food Inspector deposed that he divided the milk in three equal parts adding eight drops of formalin in each bottle, sealed the bottle and packed them in the presence of a witness. The Food Inspector did not examine the witness who had accompanied him at the time of taking the sample, and on the contrary, when he was examined as defence witness, he stated that he did not see the empty bottles when they were filled with milk. The benefit of doubt was given to the accused.
10. In Ultadanga Oil Mill v. Corporation of Calcutta 1968 (2) Cri LJ 448, it was held that the Rules did not deal in details with the manner or procedure of taking samples except what was provided in Rule 14, but that Rule laid down a salutary provision that if the Phial or the bottle in which the sample was taken and was not clean and dry, in other words, if it contained other matter, sediments etc. which might be responsible for variations in the standard of quality, then it could not be said that the results of analysis, were dependable. As the Food Inspector did not describe how or in what manner he took the sample of oil from the tank or the drum it could not be said with certainty that the sample was taken in dry and clean phials and it could not be said with certainty that the analysis had been correct and could be depended upon. The accused was, therefore, held to be entitled to benefit of doubt. In Lachman Dass v. State of Punjab 1972 FAC 752 (Punj & Har) it has been held that the language of Rule 14 admits of no ambiguity that it is imperative for the prosecution to use clean or dry bottle or any other container depending upon the nature of the article of food recovered. A duty is cast upon the prosecution not only to comply with this mandatory provision of law by using clean and dry bottles for storing the sample but also leading evidence at the trial that the bottles used were clean and dry. This ruling was followed in Sadhu Singh v. The State 1975 FAC 295 (Punj & Har) where it was held that in the absence of any positive evidence on the point that the bottles used were clean and dry, the conviction of the accused could not be sustained. However, in Nagar Parishad, Alwar v. Ganga Lahari 1982 Cri LJ 2325, the Rajasthan High Court took the view that where there was a statement by the Food Inspector as to taking of sample and sealing and forwarding it for analysis according to the Rules and there was no cross-examination on that point, Clause (e) of Section 114 of the Evidence Act should be applicable and the presumption could be drawn that the bottles were clean and dry and there was compliance with Rules 14, It was observed that once the Food Inspector stated that the process of sealing etc. and taking of sample was done according to the Rules it would be for the cross-examiner or the accused's counsel to put question to show that the Rules were violated. In that case very lengthy cross-examination was conducted but not a single question was put that the bottle was not clean or not dry. The only question which was put was that he had not cleaned the bottle either before bringing it from the Municipal Council or at the time of taking the sample. The court relied on the decisions in State of Kerala v. Alasserry Mohammad : 1978CriLJ925 and in Kassim Kunju Pookunju v. K.K. Ramakrishna Pillai. 1969 Cri App R (SC) 15. In the latter case the Supreme Court held that official acts must be presumed to have been regularly performed and as the Public Analyst was required to compare the sea on the container he must be presumed to have acted in accordance with the Rules and he must have compared the specimen seal with the seal on the container. In Alasserry Mohammad (supra) it has been held that the use of the word 'shall' in Sub-section (3) of Section 11 and in Rule 22 indicates on its face that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed Rules.
10A. In Baidya Nath Sah v. State of Assam 1980 Cri LJ 142 (Gauh) where the accused did not even suggest to any of the prosecution witnesses nor did he mention in his statement Under Section 313, Cr.PC that the bottle in which the sample was taken was not clean or dry, as required under Rule 14 of the Rules, it was held that it could not be said that there was no compliance of Rule 14. 1969 Cri LJ 1344 : AIR 1969 Bom 353, 1972 FAC 752 (Punj), 1975 FAC 295 (Punj) and 1963 (2) Cri LJ 448 (Cal) were dissented from. In so dissenting the Court relied on Champalal v. State of Rajasthan 1977 (I) FAC 27 : 1977 Cri LJ NOC 169. The Court also relied on the decision of the Supreme Court in Gopal Das Baheti v. State of Assam Criminal Appeal No. 4 of 1961 decided on 2nd day of May, 1962 and reported in 'Supreme Court on P.F.A and Drugs Cases 1951-1977' at page 257, observing :
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 sample 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 'scaled 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.
11. In the instant case, as we have already seen there was no mention of any container in the deposition of the Food Inspector, P.W. I or the witness P.W. 2 P.W. 3 was also silent on this point. The accused respondent in his statement Under Section 342, Cr. P.C. did not say that the sample was not taken in dry clean bottles or any other suitable container. The accused examined himself as D.W. 2 but he did not state that the sample was not taken in dry, clean containers D.W. 1 stated that the chillies were supplied by him for grinding but did not say that the samples were not taken in any clean dry bottles. The facts of the instant case are distinguishable from the above cases on one point, namely, here there is no evidence whatsoever as to in what type of container the sample was taken into. In Gopal Das 1979 FAJ 173(2) (SC) (supra) there was mention of a 'cloth sack. In Baidya Nath 1980 Cri LJ 142 (Gauh) (supra) it was in evidence that the petitioner himself put the sample oil into the bottle and it was not suggested by him to any prosecution witnesses nor in his statement Under Section 113, Cr.P.C. that there was any material defect or foul play in taking the sample. In State of Gujrat v. Kutubuddin Isafali 1981 Cri LJ 908 where the Food Inspector in his evidence said that the chilli powder which was kept for the purpose of selling in the shop of the accused kept in bags of paper and it was in powder form and also stated that he divided the quantity purchased into three samples, into there empty, dry, clean glass bottles in equal parts and in his cross-examination it was not suggested that any other container was used for keeping the sample when initially collected before it was distributed into three sample bottles, the court inferred the proper compliance of Rule 14. It was held that there was nothing to show that before the samples were put in three bottles they were kept in any other container as such. In B. A. Sawat 1969 Cri LJ 1344 (Bom) (supra) the Food Inspector mentioned that he divided the milk in three equal parts, added 8 drops of formalin in each bottles, sealed the bottles and packed them in the presence of a witness. In Ultadnga Oil Mill 1963 (2) Cri LJ 448 (Cal) (supra), the Food Inspector deposed in his evidence that all the formalities were duly complied with and there was no cross-examination on the point.
12. To throw the burden on the accused to show that the rules were not complied with without the Food Inspector saying that he did comply with those, it is necessary to decide the question as to who had the burden to prove that the rules were complied with. Unlike under the Prevention of Corruption Act where the burden is placed on the accused, under the Act the onus of proof is on the prosecution which has to discharge it. The requirement of Rule 14 as regards putting the sample in to dry clean bottles or other suitable containers, is very important and salutary provision. The purpose is to ensure that the Public Analyst receives the sample in the same state in which the Food Inspector collected it, except, after addition of the required preservatives under the law. In the instant case the Public Analyst's report was superseded by that of the Director of Central Food Laboratory. In the absence of evidence to show that the sample was put into any container it may not be reasonable to infer that it was in fact put into clean dry bottles so as to ensure its proper storing for analysis. There having been no statement as to the container used or even to the effect that the Rules as to storing of sample were properly observed, it would not be reasonable for this Court to infer or presume that those were actually complied with. This case accordingly is distinguishable. The benefit of doubt in our opinion was correctly given to the respondent and he was correctly acquitted.
13. For the reasons stated above we uphold the impugned judgment of acquittal and dismiss this appeal.
Dr. T.N. Singh, J.
14. I concur in the conclusion reached by my noble brother that the appeal should be dismissed but I would like to make it clear that in my opinion the acquittal ought to be upheld for the reason that the respondent is entitled, on the facts of the case, to the benefit of doubt and not on the ground of absence of proof of compliance by the prosecution with the provisions of Rule 14, as contended by learned Counsel for the respondent. My tentative view is that even if a provision is held to be mandatory that will not tantamount to holding that compliance therewith, even if not challenged, has to be affirmatively and positively proved also by the prosecution. I do not read anything in the language of Rule 14 to indicate that it placed any duty on the prosecution to prove compliance therewith to secure a conviction. Rule 14, according to me embodies a procedural safeguard and unless infraction thereof is complained burden to prove compliance therewith does not shift to the prosecution.
15. To divine the legislative intent of any particular statutory provision the primary judicial duty, in my opinion, is to ensure that the object of the statute is not frustrated as manifested in the modern rule of 'purposive interpretation.' The primacy of this rule in our legal and constitutional set up is self evident and need not be stressed. The master key to construction of a statute in our legal system is to be found in the Bill of Rights (Part III) and the Directive Principles (part IV) of the Constitution. As such, in the context of Article 47, the provisions of the Act have to be so construed as fulfilling the mandate thereof. In other words, prevention of Food Adulteration Act being a measure enacted to protect public health its provisions are not to be construed pedantically in a manner as may make it impossible to secure a conviction under the Act. And, it will so happen, in my opinion, if an implied duty is placed on the prosecution to prove affirmatively and positively compliance at each and every step, with the prescribed procedure, and performance of such duty is made a condition precedent for securing a conviction. However, as we are dismissing the appeal I would not like to add anything more on this aspect and would also not like to discuss the case-law to which a reference is made in the leading judgment.