1 This appeal by the State is directed against the order of acquittal dated 11th March 1977 passed by the learned Chief Judicial Magistrate, Thane, in Criminal Case No. 192 of 1973 which was instituted against the accused under the provisions of the Prevention of Food Adulteration Act, the article of food being ice candy, sample whereof had been taken on 7th August 1972.
2. After obtaining the sample of ice candy on 7th August, 1972, the Food Inspector completed the usual formalities connected therewith and after receipt of Public Analyst's report dated 30th Sept. 1972, the present prosecution was instituted against the accused on the charge that the article in question was adulterated within the meaning of the Act. Defence was one of denial. The learned trial Magistrate acquitted the accused on two grounds viz., (1) that the sanction to prosecute was not legal and valid and (2) that there was non-compliance of Rule 20 of the Rules under the Act which rule in the view of the learned Magistrate, was mandatory.
3. In this appeal against the said acquittal, I have heard Mr. R.G. Deo, the learned Public Prosecutor for the State. The accused is represented by the learned Advocate Mr. J.A. Barday.
4. Mr. Barday for the accused stated before me that he is not in a position to support the reasoning and conclusion of the learned trial Magistrate on the question of sanction. The sanction accorded for the instant prosecution, he fairly conceded, was legal and valid and the prosecution cannot be said to be vitiated on account of the fact that in pursuance of the said sanction actual prosecution was instituted not by Drugs Inspector V. R. Dalaya but by the present Drugs Inspector S. P. Kamble.
5. The only surviving question, therefore, is whether the learned Magistrate was right in his conclusion that Rule 20 was mandatory and non-compliance thereof was fatal to the prosecution. I am afraid, the reasoning and conclusion of the learned Magistrate in the aforesaid behalf is also not right. Indeed, long prior to the learned Magistrate's decision, a Division Bench of our High Court had, in the case of Nagpur Corporation v. Sukhanandan : (1972)74BOMLR383 , held that the provisions of Rule 20 aforesaid were directory in nature and the report of the Public Analyst cannot be disregarded, though there is no strict compliance with the requirements of the said Rule 20. The said ratio has been subsequently affirmed in another Division Bench ruling of this Court in Enayat Ali v. State of Maharashtra : (1976)78BOMLR293 . To the same effect is the ruling in Public Prosecutor v. Venkata Swami : AIR1967AP131 . as also the ruling in Food Inspector Municipal Council v. K. Co-op. Society . In the face of these authorities and in the face of the aforesaid two rulings of this Court, the learned Magistrate was wrong in holding that Rule 20 was mandatory and non-compliance thereof was fatal to the prosecution. The reasoning and conclusion of the learned Magistrate in that behalf also, therefore, cannot be sustained.
6. This being the position on the two questions on which the learned trial Magistrate decided the matter, the impugned order of acquittal would normally be required to be reversed. But Mr. Barday, the learned Advocate appearing for the accused, submitted, as he was indeed entitled to do so, yet another ground in support of the acquittal. He did not any more dispute the proposition that Rule 20 was directory and not mandatory. But he submitted with vehemence that even on that basis the present prosecution must fail. In his submission, the fact that Rule 20 is directory does not permit the prosecution a total non-compliance herewith. The prosecution cannot ignore the said provision of law completely. He submitted on the facts of the present case that there was on the record clear and unambiguous admission of the complainant himself that he had not added any formalin to the article in question. In view of this positive and unequivocal admission, this was, in the submission of Mr. Barday, not a case of some insufficient compliance with Rule 20 or a substantial compliance with Rule 20 but a case of total non-compliance of the said rule. This case of total non-compliance cannot be equated with the case of substantial compliance and, therefore, the ultimate order of acquittal deserves to be confirmed. Mr. Deo, the learned Public Prosecutor, has, on the other hand, submitted that settled position being that Rule 20 is directory, the accused cannot take advantage even of a total non-compliance of the said rule and even if there is total absence of addition of any formalin whatsoever, benefit of such a lacuna cannot go to the accused. Considering the rival submissions in the light of the facts and circumstances of this case, I am of the view that there is considerable substance in the contentions of Mr. Barday and the same deserve to be accepted.
7 Now, on the basic fact, there is no dispute that to the article in the present case there was no addition of any formalin at all nor of any other preservative. Further undisputed position is that the sample of the article in question was taken on 7th August 1972 and report of the Public Analyst is of 30th September 1972. There is no evidence before the Court on the exact date of analysis. The Food Inspector does not say a word in that behalf and indeed he would not be aware of the said date. The Public Analyst has not been examined. One is, therefore, left in the dark on the exact date of analysis. In the circumstances, one would have to take the date of the report as the date of the analysis because an inference most favourable to the. accused in that behalf will have to be drawn. Consequence thus is that the article in question was analysed after a lapse of nearly two months. As already noted, the article in this case was ice candy. The purpose of adding preservative is clearly indicated in Rule 19 viz.,.for the purpose of maintaining it (sample) in a condition suitable for analysis.
This indicates that absence of addition of any preservative may result in the sample becoming unsuitable for analysis. The next Rule 20 says that in the case inter alia of ice candy, the preservative to be used.shall be the liquid commonly known as 'formalin' that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. or 25 grams.
This then is the normal object of adding a preservative and this also would be the normal requirement in the case of an article such as ice candy.
8. Now, even if Rule 20 is taken to be directory can one safely exclude the possibility of the ice candy in the present case, to which admittedly no formalin was at all added, remaining on the date of its analysis 30th September 1972 in the same original condition as it was on the date 7th August 1972 when the sample was taken? In other words, can one safely exclude the possibility of the article not having in any manner undergone any change, any disintegration or any alteration? If this possibility cannot be safely excluded, then to whom will the benefit of such a possibility go? Obviously, to the accused. It would require good evidence to come to a conclusion that in spite of the total absence of any preservative or formalin being added and in spite of the fact that the article was analysed after a lapse of nearly two months, the said article was nevertheless an article fit for analysis in the full sense of the said term. Evidence on the record is practically nil on that aspect. That Rule 20 is directory does not, therefore, mean that its non-existence and/or that a total breach thereof is also permitted. Total non-compliance of the said rule is a position altogether different from a substantial compliance of the said rule. In the context, 'directory' can only mean that strict compliance would not be insisted upon by the Courts. But it cannot be that total non-compliance will also be excused. In these circumstances, even on the well-set basis that Rule 20 is directory, I am of the opinion that total non-compliance of the said rule would, on the facts and circumstances of the present case, fail to bring home the impugned charge to the accused. In this view of the matter that I take, the ultimate order of acquittal passed by the learned trial Magistrate deserves, though for reasons altogether different, to be confirmed.
9. In the result, this appeal fails and the same is dismissed.