1. This is an appeal by the State against the order passed by the Metropolitan Magistrate acquitting the accused of the offence Under Section 16 (1) (a) (i) read with Section 2 (i) (1) and 2 (i) (h) and Rule 5A. 01.01 of the Prevention of Food Adulteration Act, 1954.
2. The respondent-accused No. 1 admittedly runs New Fine Cold Drink Depot at Bombay. In this shop the respondent engages himself in manufacturing for sale carbonated waters. It is stated that on April 12, 1974 some persons who had consumed aerated water manufactured in the shop of the accused had developed symptoms of food poisoning after consumption of the soft drink.
3. A complaint having been made with regard to this to the Food and Drug Administration, on the morning of April 13, 1974, Food Inspector Fariduddin Ahmed Parkar (P.W. 2) in company of independent witness by name More (P.W. 3) went to the shop of the respondent in company of Police Sub-Inspector. It seems that on receiving a complaint about symptoms of food poisoning, the police had already sealed the shop of the respondent on the previous night.
4. On the morning of April 13, 1974, when Food Inspector along with independent witness and police went to the shop, respondent-accused No. 1 Janar-dan Ramchandra was also present with them and in his presence, the seal which was put by the police on the previous night was opened by the police and ten samples of different varieties of soft drinks such as Lemon, Orange, Phalsa, Sharbat etc. manufactured in the shop of the accused were taken by the Food Inspector and after following the prescribed procedure, one part out of the three parts of each sample was sent to the Public Analyst for examination.
5. The Public Analyst having reported that out of the ten samples, eight were found to be adulterated inasmuch as they were found to contain some ingredients in excess of the permissible limit, the respondent along with one Shivram Bhiku More, who was his servant, were prosecuted for committing an offence of manufacturing for sale or storing for sale adulterated article of food which is punishable Under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act.
6. The respondent admitted that he was the proprietor of the said shop or Cold Drink Depot. He also admitted the visit of Food Inspector Parkar in company of independent witness to his shop on April 13, 1974. He, however, denied that any samples of aerated waters were purchased by the Food Inspector from him. But that fact has been established by documentary evidence and the same also has not been challenged before me. So also the respondent denied the Food Inspector having divided each sample into three parts and the same having been kept and sealed in different bottles. But that fact also has been established by the evidence of Food Inspector and that is also not disputed at least at this stage.
7. The prosecution examined Food Inspector Parkar and Vinayak Mahadeo More, one of the two independent witnesses present at the time.
8. On behalf of the accused, it appears to have been also contended before the trial Court that the samples were not taken in the presence of independent witnesses and that the procedure laid down in Rules 17 and 18 was not complied with by the Food Inspector.
9. It appears that the shop is divided by partition into two rooms and the independent witnesses were sitting in the front room and the Food Inspector and his staff picked out samples of bottles which were kept both in the front as well as in the inner room. From this, therefore, the learned Magistrate concluded that so far as the samples that were taken from the inner room were concerned, they cannot be said to have been taken in the presence of independent witnesses. Consequently he upheld the first contention raised on behalf of the accused.
10. Similarly the contention raised on behalf of the accused was that the procedure laid down in rules 17 and 18 was not followed inasmuch as the samples of aerated water and the Memorandum in Form No. VII and the copy of that Memo and specimen impression of the seal used to seal the packet of sample were not separately sent by the Food Inspector to the Public Analyst and thus there was infringement of Rule 18 which required that a copy of the memorandum and specimen impression of the seal used to seal the packet should be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him. In accepting this contention, the learned Magistrate relied on a decision of a single Judge of this Court in Laxmandas Sarvottamdas v. State of Maharashtra (1975) 77 Bom LR 408, which has later on now been disapproved by a Division Bench of this Court in Enayat Ali v. State of Maharashtra 78 Bom LR 293 : 1973 Cri L J 1837.
11. It also appears to have been contended before the learned Magistrate that since the shop was locked and sealed by the police on the previous day, the accused could not be said to have been in possession of the shop at the time the Food Inspector obtained the samples. But this contention was not accepted by the Magistrate. However, since the first two contentions prevailed with the learned Magistrate, he proceeded to acquit the accused on the spacious ground of giving benefit of doubt to the accused.
12. The State of Maharashtra has now preferred this appeal,
13. Mr. Hombalkar for the State contended that the view taken by the Magistrate on both the points, viz. that the samples were not taken in the pre-sense of independent witnesses and that the procedure laid down under Rule 18 was not followed by the Magistrate is not factually correct. There is considerable substance in this contention.
14. Parkar, the Food Inspector, stated in his evidence that he was accompanied by two independent witnesses by name More and Lazardo. More, who was one of the two independent persons was also examined by the prosecution and he too admitted that he was present at the time the Food Inspector collected the samples. Indeed, accused No. 1 in his statement recorded Under Section 313 of the Cr.PC has even admitted that Food Inspector Parkar had come to his shop in company of two witnesses on April 13, 1974.
15. More, however, did not further support the prosecution because he stated that he and the other person were sitting on the bench outside the shop and the officer was keeping the bottles in drum and again taking them out. In the cross-examination he denied that the samples were taken in his presence. But obviously this witness has departed from truth.
16. Now, in order to come to the conclusion that the samples were not taken in the presence of independent persons, the learned Magistrate has relied only on the fact that in cross-examination the Food Inspector Parkar stated that independent witnesses were in the shop but at the same time he stated that the samples were taken inner and outer room and that the witnesses were in the outer room. The Food Inspector has also stated that these witnesses were sitting in front of himself and his party.
17. What appears to have happened is that out of the stock, some bottles were taken as sample and were brought in the outer room and in the presence of witnesses samples were taken. In these circumstances it is difficult to conclude that the samples were not taken in the presence of independent witnesses. I am, therefore, unable to agree with the view taken by the learned Magistrate that the independent witnesses were not present when the samples were taken.
18. The other ground relied on by the learned Magistrate for the purpose of acquitting the accused is that the mandatory provisions of Rules 17 and 18 were not followed. These rules and the other rules from Rule 14 are contained in Part V which is headed 'Sealing, fastening and despatch of samples.' Rule 16 prescribes the manner of packing and sealing the samples. Rule 17 prescribed the mode in which containers of samples should be sent 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 to the Public Analyst. The proviso prescribes additional requirement where sample of food has been taken from Agmark sealed container. Rule 18 then says 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 to him or to any person authorised by him.
19. In short, therefore, what these rules provide is that sample along with a memorandum addressed to the Public Analyst and giving particulars in Form No. VII should be sent in a sealed packet to the Public Analyst and a copy of this memorandum, which is referred to in Rule 17 and the impression of the seal used for sealing the packet of the sample should be sent to the Public Analyst separately. Although at one time there was some difference of opinion as to how the sample along with the memorandum and the copy of the memorandum and the specimen of the seal should be sent whether they should be sent with one person at one and the same time although in different packets or whether they should be sent with two separate persons or at different times the controversy is now set at rest by the decision of the Division Bench in Enayat Ali v. State of Maharashtra 78 Bom LR 293 : 1976 Cri Lj 1837. The Division Bench held that where the cover containing the sealed packet of the sample for analysis enclosed together with a memorandum in Form VII was sent along with another packet containing the memorandum and specimen of the seal with the same person, there was no infraction of Rule 18 of the Prevention of Food Adulteration Act. The Division Bench held that it was clear that the word 'separately' used in Rule 18 was intended to convey the sense that the specimen of the memorandum and the impression of the seal was to be sent independently of the articles that were required to be sent under Rule 17. It was further held (at p 1842 of Cri LJ) :
As long as the copy of the memorandum that was required to be sent under Rule 18 was not sent together, in the sense that all articles were not to be in the same packet or the same cover as the article referred to in Rule 17 and the memorandum which was required to be sent under Rule 18 was sent independently in a different cover, notwithstanding the fact that both are taken to the Analyst by the same Peon, they must be said to have been sent independently of each other. The mere fact that the two packets were carried by the same peon would not mean that the material articles, namely, the samples and the memorandum on the one hand and the copy of the memorandum on the other are sent together. Sending of the packets together, would not amount to sending the articles inside in the packets together, because the object of Rule 18 is to furnish an independent means of cross-checking the identity of the seal on the sealed packet of the sample to be analysed.
20. Now, the Food Inspector Parkar in no uncertain terms stated in his evidence that he gave to the accused one part of each of the three parts of the samples so taken from the accused, and obtained receipts from him in token of having received the same. He further gave evidence that one part of each of the samples was sent to Public Analyst along with memorandum in Form No. VII. At the same time he also stated that copy of memorandum in Form No. VII along with specimen seal was separately sent by him to the Public Analyst. He produced receipt obtained by him from the clerk of the Public Analyst -acknowledging receipt of the samples; but as he stated that he was not able to identify the signature on this receipt, it was not exhibited but was simply marked 'X'.
21. In cross-examination on this point, the Food Inspector stated:
I gave the samples to the peon and he delivered them to the office of P. A. I do not know the name of the peon. It is not true that copy of memo VII was not sent. I have no receipt for having sent the sample.
22. Now, the learned Magistrate after quoting the aforesaid portion from the cross-examination of parkar observed:
It is thus clear that Inspector Parkar was not the person who delivered the sample, memo in form No. VII, copy of the memo and specimen seal impression.
23. It is difficult to follow the reasoning of the learned Magistrate as expressed in this observation; because Food Inspector Parkar never claimed that he himself personally carried these articles to the Public Analyst. Indeed, he explicitly stated that the sealed packet containing the sample along with the memorandum in Form No. VII was separately sent by him and he also sent separately a copy of the memo along with specimen of the seal used to seal the first mentioned packet.
24. Then learned Magistrate observes:
It has further to be noted that even in the cross-examination, he does not say that he had handed over the copy of memo in form No. VII and specimen seal impression to the peon.
It is true that in the cross-examination Food Inspector did not say that he handed over the copy of the memo and the specimen seal together in a separate cover to the peon. But obviously he could not say so, because he had to answer the question which was put to him in cross-examination. In the cross-examination no such question was put to him which was put to him in respect of sample. The Food Inspector, therefore, had in fact no opportunity to say this in his cross-examination.
25. The learned Magistrate then refers to the fact that the prosecution only produced the receipt marked 'X' regarding the delivery of samples together with the memo to the Public Analyst, but no such separate receipt with regard to the other two articles, viz. copy of the memo and the specimen seal, was produced and the receipt marked 'X' did not make any reference to these latter mentioned documents.
26. Then it has also been observed that the prosecution did not produce any witness from the office of the Public Analyst to prove that the office of the Public Analyst had received not only the samples but also a copy of the Memorandum and the specimen of the seal.
27. But the Food inspector himself stated on oath that he separately sent a copy of the memo and the specimen seal separately. This assertion made by the Food Inspector was even supported by the reports of the Public Analyst which were collectively produced at Exh. F. These reports of the Public Analyst clearly show that the seals affixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. Thus, the statement of the Public Analyst in the report goes to corroborate the word of the Food Inspector that he had in fact separately sent a copy of the memorandum and specimen of the seal to the Public Analyst.
28. In Kassim Kunju Pookunju v. K. K. Ramkrishna Pillai, Criminal Appeal No. 29 of 1968 decided by Supreme Court on Dec. 2, 1968, similar question arose before the Supreme Court. The contention raised before the Supreme Court by the appellants-accused was that the provisions of B. 18 of the Prevention of Food Adulteration Rules, 1955, were not complied with, inasmuch as it was not proved that the specimen impression of the seal used had been sent to the Public Analyst. It appears that no independent evidence was led. However, the Courts below relied upon the statement made in the report of the Public Analyst showing that Public Analyst had received from the Food Inspector a sample of the article properly sealed and packed and that he had found the seal intact and unbroken. The Public Analyst's report, however, did not state that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. However, the High Court relied on the presumption arising Under Section 114 of the Evidence Act that official acts must be presumed to have been regularly performed and since under Rule 7 the Public Analyst had to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for analysis presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression of the seal received by him with the seal on the container.
29. On the same reasoning, in our case, from the statement made in the report of the Public Analyst that specimen impression of the seal was separately received by him and it tallied with the seal fixed on the container, a presumption can very well arise that the duty enjoined upon the Public Analyst by Rule 7 was regularly done and therefore he must have received the specimen seal along with copy of the memorandum from the Food Inspector separately, because unless he so received, he could not have been in a position to compare the seal on the packet with the specimen of the seal sent to him.
30. The view taken by the learned Magistrate mainly relying on the single Judge's decision in Laxmandas Sarvottamdas v. State (1975) 77 Bom LR 408 which, as already stated above, has been disapproved by the Division Bench in Enayat Ali's case, is erroneous. There is reliable evidence on record to show that as a matter of fact the Food Inspector had sent sample along with memorandum in Form No. VII and he had also separately sent copy of that memorandum along with specimen seal to the Public Analyst. It is immaterial that no separate receipt was obtained from the Public Analyst in token of receipt of the latter part because, as already pointed out above, there is ample material on record to hold that Public Analyst had received the memorandum and the specimen seal separately.
31. Mr. Chitnis on behalf of the respondent-accused No. 1 in support of his contention that the prosecution has not proved that copy of the memorandum and specimen seal were separately sent to the Public Analyst, firstly placed reliance on an unreported decision of a single Judge of this Court in Criminal Appeal No. 664 of 1971 decided by Shah J. on Dec. 19, 1972 (Bom).
32. That was an appeal filed by the State challenging an order passed by the Magistrate acquitting the accused of a similar offence under the Prevention of Food Adulteration Act, 1954. The article of food in that case was 'chana dal1 which was found to be adulterated. It was contended on behalf of the accused that Food Inspector had not complied with the provisions of Rule 16 (b) of the Prevention of Food Adulteration Rules, That rule, as already noted above, prescribed the manner of packing and sealing of samples. In Clause (b) it was provided that the bottle, jar or other container shall be completely wrapped in fairly strong thick paper and the ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive. The Food Inspector in that case admitted in his evidence that ends of the paper were not affixed by means of gum or other adhesive. In the view of the learned Judge this was a very serious infringement or infraction of the rule inasmuch as the provision of affixing the ends of paper after folding by means of gum or other adhesive was intended to prevent tampering with the sample. Indeed in that case, the learned Judge called for the third part of the sample which was produced in the Magistrate's Court by the Food Inspector along with the complaint and it was found that the ends of the paper in which the sample was kept were not affixed by means of gum or other adhesive. It was further demonstrated to him that without in any way disturbing the seal that was affixed on this sample, it was possible to tamper with the contents of the bottle. On the facts of that case, therefore, the learned Judge held that the infirmity was serious and, therefore, confirmed the acquittal.
33. My attention was then invited to another unreported decision by a single Judge of this Court in Criminal Appeal No. 100 of 1975 decided by Deshmukh, J. on Aug. 25, 1976 (Bom). That was an appeal by the State for enhancement of sentence imposed on the accused for an offence under the Prevention of Food Adulteration Act. The article in that case was sample of 'shev', an eatable kept in a hotel. Since the appeal was for enhancement of sentence, the accused was entitled to challenge the order of conviction itself and the accused did exercise that right.
34. On behalf of the accused it was argued, as in the present case, that the provisions of Rule 18 of the Prevention of Food Adulteration Rules, which were mandatory, were not duly observed. The exact contention raised was that the Food Inspector had neither prepared a separate specimen of the seal used by him for sealing the packet containing the sample nor had he sent it to the Public Analyst for the purpose of verification by the Public Analyst of the sample to be analysed. It appears from the judgment that neither the Food Inspector nor the panch witness, who was present at the time the article was seized, stated in evidence that a separate specimen of the seal was ever prepared at all. The Food Inspector did not even give evidence that he complied with the provisions of Rule 18 by sending a separate packet containing duplicate copy of Form VII and the specimen of the seal. Since the Food Inspector did not even say that he had sent specimen of the seal for comparison, the learned Judge rightly took the view that the provisions were not followed.
35. In the case in hand, however, as I have already pointed out above, there is clear-cut evidence of the Food Inspector that he did separately send the specimen of the seal along with a copy of the memorandum to the Public Analyst. Thus, on facts the present case is distinguishable from the case decided by Deshmukh, J.
36. The third decision, again of a single Judge, to which my attention is invited is Criminal Appeal No. 531 of 1975 decided by Shimpi, J. on Sep. 24, lfl?6 (Bom). In that case the article of food seized was shahajire That was also an appeal against acquittal of the accused and the offence charged against him was under the Prevention of Food Adulteration Act.
37. In that case, no gum was used for affixing the ends of the paper folds of the packet which contained the sample. No evidence beyond the word of the Food Inspector was led to prove that the samples were sent to the Public Analyst. There was also discrepancy in the evidence of the Food Inspector and the report of the Public Analyst as to the date on which the sample was handed over in the office of the Public Analyst. The evidence of the Food Inspector was that it was handed over on the 9th of November 1973 whereas the report of the Public Analyst showed that the sample was received by his office on Nov. 12, 1973. Thus there was ample room to doubt as to whether the sample examined by the Public analyst was the very sample which was seized from the accused and was sent to the Public Analyst. In these circumstances, this Court upheld the order of acquittal,
38. My attention was then invited to another decision of a single Judge of this Court in Criminal Appeal No. 329 of 1975 decided by Sapre. J. on Nov. 4,1976 (Bom). That again was an appeal against the order of the trial Court acquitting the accused of the offence under the Prevention of Food Adulteration Act, and the contention was that the provisions of Rule 18 had not been complied with. It would appear from the judgment that the Food Inspector, who was examined for the prosecution, did not specifically state before the Court that he had sent a copy of the memorandum in Form VII along with specimen impression of the seal separately to the Public Analyst. All that he had stated was that he had sent memo in Form VII with each sample along with separate specimen impression of the seal. It was not clear from his evidence whether he enclosed separate impression of the seal in the same packet in which the memorandum and the sample were contained or that he had enclosed it along with a copy of the memorandum in a different cover. The judgment also shows that the Food Inspector himself had not despatched either the sample or the copy of the memorandum and the specimen of the seal but he had left that job to the store-keeper who was not examined at all. On those facts, therefore, the learned Judge held that there was no evidence that a copy of the memorandum in Form VII was sent and delivered to the Public Analyst. It was observed by the learned Judge:
From mere specimen impression of the seal used to seal the packet of sample, the Public Analyst cannot connect the proper and right sample he is asked to analyse and about which he would be sending his report in due course.
39. Thus, that case is also distinguishable on facts inasmuch as in that case there was absolutely no evidence to show that copy of the memorandum in Form VII had in fact been sent to the Public Analyst by the Food Inspector.
40. To sum up, therefore, in the present case, as I have already discussed above, there is sufficient reliable evidence to show that the Food Inspector Parkar had himself sent the memorandum in Form VII, along with the sample in a sealed packet and he had also separately sent a copy of that memo along with specimen seal used to seal the first packet containing the sample and memo. I am, therefore, satisfied on the evidence that the Food Inspector did in fact, in this case, comply with the provisions of Rule 18 by observing all the formalities necessary to toe observed under that rule.
41. The view taken by the learned Magistrate, therefore that in this case there was an infringement of Rule 18 is obviously incorrect.
42. It was then urged on behalf of the respondent-accused No. 1 that there is no evidence to show that the bottles of aerated water were kept or stored by the accused in this shop for sale. In this, connection it was pointed out that the shop was already locked and sealed on the previous day by the police and it was only on the next day that in company of the police and two independent persons the Food Inspector came to the shop and after removing the seal and the lock they entered the same. It was submitted that in these circumstances it cannot be said that the respondent was in possession of the shop and that the bottles were meant for sale.
43. It is true that on the previous day the shop was locked and sealed by the police. It appears that there were some cases of food-poisoning on consumption of aerated water sold from this shop. However, for this reason it is difficult to hold that the respondent was not in possession of the shop. The possession of the Shop continued with the respondent. The police wanted to see only that the property inside the shop was not tampered with till the samples were obtained and hence they had simply locked and sealed the shop temporarily.
44. There is ample evidence on record to show that the accused was manufacturing and selling, before the shop was locked, these aerated water bottles from this shop. Therefore the bottles which were in the shop at the time when the shop was opened on the morning of April 13, 1974 were obviously meant for sale. It is not that they were kept there only as a show piece.
45. Reference to the decision of the Supreme Court in Delhi Municipality v. L. N. Tandon : 1976CriLJ547 is, therefore, not at all apposite.
46. Similarly the judgment of Jahagirdar. J, sitting singly in Criminal Appeal No. 62 of 1975 decided on April 15, 1877: reported in is also not of any assistance to us in the present case.
47. Lastly it was submitted that consent of the Commissioner of Food and Drug Administration obtained Under Section 20 of the Prevention of Food Adulteration Act for prosecution of the respondent is not valid, because on the face of it it does not disclose that the authority, had applied its mind before it accorded its consent.
48. Section 20 (1) of the Preventation of Food Adulteration Act, 1954, provides:
No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by the Central Government or the State Government or a local authority.
The proviso to this Sub-section which permits initiation of a prosecution by a private purchaser without obtaining such consent is not relevant for our purpose.
49. It is not disputed in this case that the Commissioner Mr. M. K. Rangnekar, was a person authorised in this behalf by the appropriate Government to accord consent to the prosecution for offences under this Act.
50. Now, the written order issued by him has been produced at fizh, 'A,' It reads as follows:
In exercise of the powers vested in me Under Section 20 of the Prevention of Food Adulteration Act, 1954 read with Government Order, Urban Development, Public Health and Housing Department, No. PFA. 1069/74029-V, dated 22nd Aug. 1970, I, M. K. Rangnekar, Commissioner, Food and Drug Administration, Maharashtra State, Bombay hereby give my consent for the prosecution of Shri Janardan R. Narwankar Proprietor and 2) Shivram Bhiku Khambe of M/s. New Fine Cold Drink Depot situated at 140, Mhatar Pakhadi Rd., Mazgaon, Bombay 10 for an offence alleged to have been committed by them as regards manufacturing for sale and selling of concentrated falsa on or about 13-4-1974 in contravention of Section 7, punishable Under Section 16 of the said Act.
51. Now it is contended that this order should have on the face of it disclosed that the Commissioner applied his mind to the facts of the case before he accorded his consent to the prosecution or at least the prosecution should have led some extraneous evidence to show that in fact the Commissioner had so applied his mind.
52. It is pointed out that the sanction merely refers to Section 7 without mentioning the definite clause of that section which was, in the opinion of the sanctioning authority, contravened. In this connection a reference was also made to the definition of the expression 'adultered' occurring in Section 2 (i). It is pointed that this clause contains several sub cls. and, therefore, it was necessary for the Commissioner to specify as to under what particular clause these samples Were said to have been adulterated.
53. But, in my view, this argument is not tenable. The Food Inspector, Parkar, has stated in his evidence that he submitted the papers to Mehta, the Assistant Commissioner. It appears that it was the Assistant Commissioner who forwarded the papers for consent to the Commissioner, Mr. Rangnekar. Presumably, therefore, Mr. Mehta must have also forwarded the papers to Mr. Rangnekar, the Commissioner and he must have after going through the papers accorded his consent Under Section 114 of the Evidence Act, a presumption arises that all official acts have been regularly performed.
54. Besides, it must be remembered that Under Section 20 of the Prevention of Food Adulteration Act only consent of the Commissioner is necessary and not sanction. There is obvious difference be tween 'consent' and 'sanction'. 'Consent' implies mere concurrence or agreement whereas 'sanction' confers authority on the person in whose favour sanction is granted. Therefore, the considerations applicable in the case of 'sanction' would, in my opinion, not be applicable to a case where mere consent is required.
55. Before concluding, it is necessary to state that after the arguments on both sides were concluded and the learned Public Prosecutor was also heard in reply, and delivery of judgment was to be just started, the learned Advocate for the respondent stated that he wanted to urge one more point. Since, however, the arguments were already concluded on the previous day and the reply of the learned Public Prosecutor was already started on the 17th and it was even concluded on the 18th, I did not think it proper to allow the Advocate for the respondent to raise a new point which was not only not raised in the trial Court but was not even raised in this Court before the arguments were concluded on both sides. However, in the interest of justice I have now decided to hear the respondent on that point also.
56. It is contended that Rule 9 of the Prevention of Food Adulteration Rules sets out the duties of Food Inspector and under Clause (j) of that rule it is the duty of the Food Inspector to send by registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. It was submitted that in this case a copy of the report in Form III received from the Public Analyst was supplied to the respondent by hand delivery, and not by registered post and that too beyond ten days from the receipt of the report. It is therefore argued that there being thus contravention of Rule 9, the prosecution is bad.
57. In support of this contention, reliance is placed on an unreported judgment of a single Judge of this Court in Criminal Revision Application No. 22 of 1977 decided on Aug. 29, 1977: (reported in in which it appears that my learned brother Naik, J. has taken the view that such an infringement of the mandatory rule vitiated the prosecution.
58. In the present case, the Food Inspector gave evidence that he supplied copies of the reports of the Public Analyst to the accused. There was no cross-examination on this point to show whether he supplied them within ten days or not. The prosecution produced the receipt under the signature of the respondent-accused acknowledging receipt of these reports. This receipt is dated Nov. 29, 19-74, and the reports of the Public Analyst appear to have been signed by the Public Analyst on April 26, 1974. However, there is no evidence as to when these reports were actually received by the Food Inspector. Rule 9 (j) requires copies of such reports to be sent to the accused within ten days of the receipt of the said report by the Food Inspector, In the absence of definite date as to when these reports were actually received by the Food Inspector, it is difficult to hold that the copies were not supplied within ten days of the receipts of the reports of the Public Analyst by the Food Inspector. The respondent-accused could very well have cross-examined the Food Inspector on this point. Besides, this point was not even raised in the trial Court and now for the first time and that too, as already noted above, at such a belated stage this point has been raised. In the absence of the above factual data therefore it is not possible to uphold this argument,
59. Then the only question that remains is whether it can be said that because the copies were not sent by registered post, the entire prosecution is vitiated. In my view, it is too technical a view to take that such reports, if handed over personally by the Food Inspector to the accused, would be an infringement of the rule. We must see what the intention of the Legislature is. The intention is to supply the accused with the copy of the report of the Public Analyst soon after they are received by the Food Inspector so that he should know the contents thereof. Whether the copy is sent by registered post or is handed over personally by the Food Inspector is therefore immaterial. The main point is whether such copy has been supplied to the accused or not. The mode of supply would not go to the root of the matter. I do not see how instead of sending a copy by registered post, if it is handed over personally by the Food Inspector to the accused, any material difference is made. The object of this rule is fully achieved by handing over the copy per-( sonally. In my opinion the rule cannot be regarded as mandatory. The use of the word 'shall' is not decisive.
60. In the case decided by Naik, J. it appears that the point was raised in the trial Court itself and it was on that ground that the order of discharge was passed. The State had come in revision against that order and the learned Judge refused to interfere holding that the non-compliance with the provisions of Clause (j) of Rule 9 being mandatory, no error was committed by the trial Court in discharging the accused, I, therefore, think that that ruling would not be applicable to the present case.
61. In the end, therefore, since the prosecution has established that the respondent-accused No. 1 had manufactured and stored for sale adulterated aerated waters which are articles of food, the offence charged against the respondent has been satisfactorily established.
62. At this stage, the respondent was heard on the question of sentence. Under Section 16 of the Prevention of Food Adulteration Act, 1954, such an offence is punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with a fine which shall not be less than one thousand rupees. There is a proviso which says that if the offence is under sub-Clause (i) of Clause (a) and is with respect to an article of food which is adulterated under sub-cl. (1) of Clause (i) of Section 2 or misbranded under sub-cl. (k) of Clause (ix) of that section; or if the offence is under sub-cl. (ii) of Clause (a), the Court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
63. There can be no doubt that the article of food in this case was adulterated within the meaning of sub-cl. (1) of Clause (i) of Section 2 of the Prevention of Food Adulteration Act, inasmuch as its constituents were in excess of the prescribed quantities. In these samples, zinc was found beyond the prescribed limit of 5.0p. p.m. and some of them also contained dulcin which was a non-permitted constituent in such aerated waters under item A. 01.01 of Appendix B of the Prevention of Food Adulteration Rules. Therefore, if there are adequate and special reasons, lesser than the minimum prescribed punishment can be imposed in this case.
64. The only point that was urged in this behalf was that since the Food Inspector in his evidence stated in cross-examination that he did not find any manufacturing process in the shop, the respondent cannot be said to have himself manufactured these aerated water bottles. But that by itself would not be a special and adequate reason within the meaning of Section 16.
65. The other point that was urged was that this offence was detected in April 1074 and the respondent is being convicted now in October, 1977, that is, after a lapse of more than three and a half years. But that again, in my view, is not a special and adequate reason for imposing lesser than the minimum sentence. In the trial Court, the trial was concluded in October, 1975. Thereafter in normal course the appeal came up for hearing within two years.
66. In the result, the appeal is allowed, the order of acquittal recorded by the trial Court is set aside and the respondent is found guilty of the offence punishable Under Section 16 (1) (a) (i) read with Section 2 (i) (1) of the Prevention of Food Adulteration Act, 1954, and for this offence he is sentenced to suffer R.I. for six months and to pay a fine of Rs, 1,000, in default of payment of fine the respondent to undergo R.I. for two months more.
67. The respondent to surrender to his bail within two weeks.