1. This appeal is filed by the State Government against the order of the learned Chief Judicial Magistrate, Kolhapur, acquitting the respondent of all the offences, with which he was charged, viz. those under Section 7(i) and 7(v) read with Section 16 of the Prevention of Food Adulteration Act.
2. The facts that are relevant for the purpose of the appeal are very few. The respondent was accosted by the Food Inspector while he was carrying certain quantity of milk for sale. According to the Food Inspector, who is the complainant in this case, the respondent informed him, when he was accosted, that he was carrying buffalo milk for sale. The Food Inspector took sample of the milk, divided it into three parts and one of the parts was sent by him to the Public Analyst as required by law, on the same day, that is to say on 8th November, 1977.
Section 11(c) of the Prevention of Food Adulteration Act, (hereinafter 'the Act') requires the Food Inspector to follow certain definite procedure in this behalf. He has to divide the sample of the article in three parts. One of them has to be sent to the Public Analyst for his analysis and the intimation of the fact that such sample is sent to the Public Analyst has to be given to the Local Health Authority. The remaining two parts of the sample are required to be sent to the Local Health Authority. Rule 17 framed under the Act prescribes the manner in which and the period within which the contents of the sample are to be despatched. The said Rule 17(b) also provides that the remaining two samples are to be sent to the Local Health Authority together with two copies of the memorandum in Form VII in a sealed packet. But evidently this provision under Rule 17(b) of sending two copies of the memorandum in a sealed packet is a provision independent of the provision relating to intimation contained in S. 11(c)(i) of the Act.
3. What the Food Inspector did in the present case was that although he sent one of the three samples to the Public Analyst no separate intimation of the same was sent by him to the Local Health Authority. He remained content with complying with the requirement of Section 17(b) only in part by sending the two sealed containers of the remaining two samples and the two copies of the memorandum in Form VII.
He received the Public Analyst's report which is produced at Exhibit 27 in these proceedings. The report purported to be in the prescribed form. The form requires him to state as to whether he had himself analysed the samples or had caused them to be analysed. But he kept the information on the point vague by not scoring off the inapplicable part of the question. The item of information expected of is alternative. He must inform as to whether he has him self analysed the sample or whether he has caused the same to be analysed by someone else. By not scoring off the inapplicable part of the information he has allowed the position to remain delightfully vague. In effect, the information given by him states that he has analysed the aforementioned sample and at the same time it also purports to state that he has caused the sample to be analysed, evidently by some one else. From the report, therefore, it cannot be found as to whether he himself has analysed it or the same was got analysed by his subordinate or by any other person. If he had got it analysed by somebody else he has not mentioned as to who that somebody else was.
After making that statement the Public Analyst has made declaration of the result of the analysis. The result shows that the total solids in the sample were 13% out of which milk fat was 5.3% and solids other than fat was 7.7%. He further expressed his opinion at the end of the report that the sample contains 14.4% added water and that the same does not conform to the standards of buffalo milk as per Prevention of Food Adulteration Rules.
4. On the basis of this report, it was contended by the prosecution that in view of the excess water found in the milk by the Food Inspector from the sample, it must be held that the petitioner was guilty of the offence punishable under Section 16 of the Act.
5. The defence of the accused on the other hand was that the milk of which sample was taken by the Food Inspector was not buffalo milk but cow's milk. He also complained about the non-observance with the mandatory requirements of Law by the Food Inspector and about the irregularity in the matter of the report of the Public Analyst.
6. The learned Chief Judicial Magistrate negatived the contention of the accused that what was sold by him to the Inspector was cow's milk and not buffalo milk. However, the learned Magistrate accepted two of the contentions advanced by the accused. Firstly, he held that the mandatory requirement of giving intimation to the Local Authority about the fact that the sample was sent to the Public Analyst as per S. 11(c)(i) was not complied with by the prosecution. Secondly he held that the Public Analyst's report does not clearly indicate as to whether the sample was analysed by the Public Analyst himself. He held that the accused has every right to contend, with success, that the sample was not in fact analysed by the Public Analyst but by somebody else. The learned Magistrate held that if that was the position it was incumbent upon the prosecution to examine the Public Analyst or the person who had analysed the sample to show that the opinion expressed by him was justified or not. Taking this view of the matter, he held that the complaint filed by the Food Inspector was not maintainable on account of the non-observance of the mandatory requirements of law. This is the reason why he passed the order of acquittal in favour of respondent-accused.
7. Before me, both the grounds on which the complaint has been dismissed have been reiterated by Shri Nathan on behalf of the respondent accused in support of the order under appeal. However, I may state here that to my mind having regard to the strict provision relating to the minimum penalty provided by the Statute, it must be held that the undoubted and uncontroverted requirement of sending intimation to the Local Authority of the fact that the sample is sent to the Public Analyst is a mandatory requirement. Since the requirement is admittedly not complied with by the Food Inspector, the prosecution against the accused is not tenable. In view of the fact that I am upholding the judgment of the trial Court on this short point I find it unnecessary to decide the correctness of the learned Magistrate's view regarding the second point.
8. The question for my decision in the present case is a very narrow question. But, unfortunately I received no assistant in that behalf from any earlier precedent. It was common ground before me that the question has not been dealt with by any other Court previously. At least none was brought to my notice. The short narrow question is as to whether the requirements that one of the three samples should be sent to the Public Analyst is coupled with the requirement that the intimation of the same should be sent to the Local Authority and that whether this requirement is of a mandatory character. If it is mandatory requirement, then non-compliance with the same will render the prosecution invalid.
9. The reason why I feel that the provision must be held to be mandatory is that the ultimate result of conviction of the accused is of very grave, serious and stiff character. If it is found, as a result of the analysis made by the Public Analyst of the sample sent to him by the Food Inspector that the sample contained more water than normally expected, the accused has to suffer rigorous imprisonment for a period of minimum six months in addition to the minimum fine of Rs. 1000/-. If this is the position of law, then it will be reasonable to assume that the legislature expected the officer concerned to comply with each of the formalities prescribed by the statute very strictly. This necessarily means that the provision is mandatory in character. It cannot be lightly assumed that the legislature wanted the citizen to be sentenced to stiff penalty in a light-hearted manner. If such stiff penalty is the ultimate result, the manner in which the stiff penalty should be imposed has to be prescribed and once the legislature prescribes such manner the same has got to be observed strictly by the person who has been entrusted with the duty of implementation of the law by paying attention to each of the mandatory requirements prescribed by the law. I do not think that the Court would be justified in taking the view that the legislature has made the provisions for intimation to Local Authority of certain facts an empty formality. The Act provides that before invoking the penal provision, certain requirements have got to be complied with. After compliance with those requirements the citizen may be sent to jail; but it cannot have been intended by the legislature that similar result would not follow even if the requirement was not complied with by the authorities concerned.
It is on this count that I am persuaded to hold that the requirement of giving intimation to the Local Authority of the fact that the sample is sent by the Food Inspector to the Public Analyst must be construed to be a mandatory requirement. Once the requirement is held to be mandatory and once it is found that the requirement has not been complied with by the Food Inspector, it must follow that the prosecution fails. The view taken by the learned Magistrate therefore cannot be cavilled at.
10. In this view of the matter, it is not necessary for me to go into the correctness of the second view taken by the learned Magistrate relating to certain omission on the part of the Public Analyst while giving his opinion in the report and hence I express no opinion on the correctness of the same, one way or the other.
11. The appeal, therefore, fails and the same is hereby dismissed
12. Appeal dismissed.