1. This is an appeal by the original complainant - the Food Inspector of Municipal Council at Jalna against the order of the Judicial Magistrate, First Class, Jalna, acquitting respondent No. 1 Gangappa Dhondiappa Pangulwale of the charge Under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.
2. Respondent No. I, who would hereinafter be referred to as 'the accused,' dealt in milk.
3. On January 21, 1974 Mr. H. T. Jadhav, the Food Inspector of the Jalna Municipal Council, noticed the accused coming to Jalna with a pitcher containing milk near S. T, Stand. The Food Inspector stopped the accused and purchased from him 660 ml. of milk for Rs. 1.25, after duly informing the accused that he was purchasing the same for sending it for analysis to the Public Analyst. This was done in the presence of three independent persons.
4. Then he followed the prescribed procedure of dividing the purchased quantity in three different equal parts and putting them in separate dry and clean bottles. He also added the necessary drops of formalin to the milk kept in each bottle and each bottle was properly corked and sealed. Necessary notice was given to the accused and receipt was also taken from him.
5. One of the samples was then handed over to the accused, one was retained by the Food Inspector and one was sent by him through the Chief Officer of the Municipal Council to the Public Analyst for analysis. The Public Analyst received the sample on Feb. 2, 1974 as disclosed from his report, Exh. 12. He examined the same and found that it contained 11.1% added water and that percentage of solid fat was also less than the prescribed standard of 9%. The accused was, therefore, prosecuted for committing an offence under the aforesaid provisions of the Prevention of Food Adulteration Act.
6. The accused admitted having sold the milk to the complainant. He also admitted his signature on the notices and the receipt but he denied that the sample bottles were duly sealed in his presence. He also denied to have received notices and the sample bottle. It appears that the validity of the sanction accorded for the prosecution of the accused was also challenged.
7. The learned Magistrate on the evidence found in favour of the prosecution that the sanction was duly proved, that notices as required Under Section 11(1)(a) and Rule 12 of the Prevention of Food Adulteration Rules were duly given to the accused, that a sample bottle was given to the accused and that the provisions of adding preservative were also properly complied with. The learned Magistrate, however, took the view that the provisions of Rules 17 and 18 were not duly complied with. According to him, the provisions contained in these rules were mandatory and infringement thereof was fatal to the prosecution. Consequently on this narrow ground, the learned Magistrate proceeded to acquit the accused.
8. Rule 17 of the Prevention of Food Adulteration Rules prescribes the procedure for sending the sample to the Public Analyst. It says that the container of sample for analysis shall be sent to the Public Analyst by registered post or Railway Parcel or air freight or by hand or by any other suitable means of transport available in sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed t0 the Public Analyst. It is not necessary to refer to the proviso to this rule at it is not relevant for our purpose.
9. Then Rule 18 requires that 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 t him or to any person authorised by him,
10. Reading these two rules together, it is obvious that under Rule 17 the sample of the Article is required to be sent along with the memorandum in Form No. VH which is prescribed under the Rules. This sample is to be duly sealed. Thereafter, Rule 18 requires that a copy of the memorandum which is sent Under Section 17 along with the sample and specimen impression of the seal used to seal the packet containing the sample should be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him.
11 Now, according to the learned Magistrate, in the present case there is no reliable evidence to show that as provided in Rule 18, a copy of the memorandum and a specimen of the seal used to seal the packet was separately sent. That they were sent is not disputed.
12. The evidence of the Food Inspector, however, shows that the sample was sent to the office of the Public Analyst through Ms office, that is, through the Chief Officer of the Municipality. It is true that a copy of the memorandum sent to the Public Analyst along with the sample has not been produced. However, a copy of the letter sent along with the sample has been produced at Exh. 20. It shows that this letter was signed by the Chief Officer of the Municipal Council. It further shows that along with the sample of milk taken ton the accused, five other samples taken and other different persons were also sent. She letter mentions them .separately under different .numbers. The number given to the sample taken from the accused is at serial No. 5 in the letter and it is given identifying mark 'AM/221' and against it has been stated the name of accused and that it was sample of buffalo milk.
13. Now, in the first place what is contended before me on behalf of the respondent accused is that Rule 18 requires that each sample must be separately sent and. therefore, it is contended that sending of .six different samples taken from six different persons was infringement of this Rule. It is, however, not possible to accept this contention. If several samples are taken, there is no rule which requires that all of them should not be sent in one packet provided they are differently marked in order to indicate as to from whom each sample wag taken.
14. Mr. Kankaria for the respondent-accused laid great emphasis on the indefinite article 'A'' appearing before the word 'copy' and the definite article 'the' appearing before the word 'memorandum'1 in Rule 18 and contended that it clearly shows that every sample must be separately sent. But it must be remembered that it is a general rule that is laid down and, therefore, an indefinite article 'A' has been used before the word 'copy' and the definite article 'the' before the word 'memorandum' has been used in order to indicate that the memorandum referred to is the memorandum which is referred to in the earlier Rule. I, therefore, do not think that there was any infringement of Rule 18 in sending all the six samples together in one package.
15. Then what was argued before the trial Court and also before me was that there was no evidence to show that a copy of the memorandum and specimen impression of the seal used for sealing the packet sent to the Public Analyst were separately sent to the Public Analyst. But in that connection it is sufficient to make reference to the evidence of Sumant Narharrao Kulkarni (P. W. 2). It was he who carried the samples to the office of the Public Analyst and he has given evidence that along with the sample collected from this accused and other five samples collected from other five persons were received by him from the Food Inspector for being taken to the Public Analyst and he took those samples to the office of the Public Analyst and handed them over and obtained the receipt at Exh. 20. He has further stated that along with these samples he also gave specimen seals and memorandum form in a separate packet. This clearly shows that a copy of the memorandum and the specimen of the seal used for sealing the packet containing the sample was separately kept in a packet and entrusted to this witness &>r being given in the office of the Public Analyst. It is not necessary that the samples along with the memorandum should be sent with one person and a copy of the memorandum and specimen impression of the seal should be sent along with another person or that if they are sent with the same person, they should be sent at different times. This view was taken by me in Laxmichand Govindji v. State of Maharashtra decided by me on March 4, 1975 in Criminal Appeal No. 1327 of 1973 (Bom) (unrep). A contrary view was taken by Gandhi J. in Laxmandas Sarvottamadas v. State (1975) 77 Bom LR 408. Perhaps in view of the conflict of decisions of single Judges of this Court on this point, the matter was referred to Division Bench in Enayat AH v. State of Maharashtra : (1976)78BOMLR293 in which the Division Bench consisting of Justice Chandurkar and Justice Sapre approved of the view taken by me and dissented from the view taken by Gandhi, J. In view of this Division Bench ruling, therefore, the contention advanced on behalf of the accused is untenable.
16. Mr. Kankaria also invited my attention to the decision of Vimadalal, J.'in Criminal Appeal No. 1212 of 1973 decided on 11th Feb. 1975 (Bom) (unrep). In that that case also it appears that there was no evidence to show that the copy of the memorandum and the specimen impression of the seal were separately sent. Although the report of the Public Analyst contained a statement that the seal on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector, the learned Judge held that this statement could not be sufficient to prove the fact required to be proved under Rule 18. The aforesaid view taken by Vimadalal, J., however, runs counter to the decision of the Supreme Court in Criminal Appeal No. 29 of 1968 decided on December 2, 1968. In that case also there was no independent evidence to show that the copy of the memorandum and the specimen. impression of the seal were sent separately to the Public Analyst. However, the High Court relied upon the presumption that all official acts must be presumed to have been regularly performed and therefore, accepted the statement made to that effect in the report of the Public Analyst. Under Rule 7 the Public Analyst is required to compare the seals on the container and the outer cover with the specimen impression received separately and shall note the condition of the seals thereon. Therefore, a presumption was raised Under Section 114 that this duty cast on the Public Analyst must have been duly performed. The Supreme Court upheld this view taken by the High Court of Kerala.
17. Turning to our case, it would be found that the report of the Public Analyst at Exh. 12 clearly states that the sample concerned in this case was duly received from the Food Inspector, Municipal Council, Jalna for analysis properly sealed and fastened and that the seal was found to be intact and unbroken. It further states:
X X X X XThe seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and sample was in a condition fit for analysis.' It is true that this report is in a printed form. But only because it is in a printed form, there is no reason to disbelieve the statements made therein.
18. Mr. Kankaria then submitted that the number given to the sample in the letter of the Chief Officer of the Municipal Council does not tally with the number of the sample given in the report of the Public Analyst. In the letter of the Chief Officer of the Municipal Council which is at Exh. 20, the sample taken from the accused is mentioned at serial No. 5 and the number given to it is 'AM/22'1 and against that the name of the present accused is written and against the name of the accused is written 'Beff. Milk.'1 Now, in the first column in the Schedule contained in Public Analyst's report, Exh. 12, the letters 'AM/22' do appear. However, after the figure '22' again there Is a stroke and the figures '73-74' have been added and also in the column 'Name and address of vendor' the name of the accused appears.
19. Mr. Kankaria contended that the figure '73-74' do not appear in Exh. 20 and, therefore,, this sample can not be said to be the same sample which was taken from the accused. It is, however, obvious that the figures '73-74'' refer to. the year. Obviously this was recorded' in the office of the Public Analyst m order to indicate in what particular year this sample was received. Since, however, the name of the accused appears and the first part, of the number tallied exactly with the number given in Exh, 2ftt there' can be no dourest that the sample examined by the Public Analyst was the very sample which was; seized from the accused and was sent to the Public Analyst.
20. In this view of the matter, therefore, the view taken by the trial Court is incorrect. It is clearly proved in this case that the provisions of Rr. 17 & 18 of the Prevention of Food Adulteration Rules were duly complied with and, therefore, the very ground on which the trial Court solely based its judgment of acquittal cannot be sustained.
21. The appeal ius therefore, aHowed, the order of acquittal is set aside andi the accused is convicted of the charge undo Section 7(i) read with Section 16(1)(c) of the Prevention of Food Adulteration Act.
22. Before the Amendment made ins 1976, the minimum punishment paravideil for this offence was imprisonment for a term not less than six months and not exceeding six years and also fine which should not be less than Rs 10Q0/-. In the case of article of food adulterated within, the meaning of Section 2 (i) (1), discretion was however given to the Court to award lesser than minimum sentence for adequate or special reasons to be tioned in the judgment.
23. Having regard to the little quantity of added water which was only about 11% and also the age of the accused I do not think that this ease calls for imposing minimum sentence. I think a sentence of R.I. for two months and a fine el Rs. 1000/- would meet the ends of iustice, In default of payment of fine, the accused should undergo Rule 1. for one month. Order accordingly. Warrant of arrest issue.