A.D. Tated, J.
1. The State has preferred this appeal against the judgment and order dated 13th April, 1979, passed by the learned Sessions Judge Sangli in Cri. Appeal No. 102 of 1978, allowing the appeal from judgment and Order dated 27th October, 1978, passed by the learned Judicial Magistrate, F.C. Miraj convicting the present respondents of the offence under section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act. (hereinafter for the sake of brevity referred to as the 'said Act') and sentencing them to suffer R.I. for six months and to pay a fine of Rs. 1000/-, and setting aside this conviction and sentence awarded by the learned Magistrate.
2. The facts have been stated in detail by the learned Sessions Judge in his judgment and it is not necessary to reproduce them. Briefly stated, the prosecution case was that the accused No. 1 Omprakash Agarwal is a licence holder of a canteen at the S.T. Stand, Miraj and the accused No. 2 Suresh Omprakash Agarwal is son of the accused No. 1, who was running the said canteen. On 21-2-1977, the Food Inspector, Sangli, visited the canteen and took samples of Rava after following the necessary procedure. One of the samples of Rava was sent to the public analyst and the report of public analyst Ex. 41 was received. The Rava was found adulterated. Thereafter after obtaining the necessary sanction for prosecution of the accused, both the accused were prosecuted for the offence punishable under section 7(i) read with section 16(1)(a)(i) of the said Act. The accused were supplied with a copy of the report of the public analyst on 19th July, 1977. On 22nd July, 1977, the accused moved the trial Court for sending a sample of Rava to the Central Food Laboratory at Calcutta. Accordingly a sample was sent and a report Ex. 16 was received from the Director of Central Food Laboratory. That report differed from the report of the Public Analyst that the Central Food Laboratory did not find iron filing which the public analyst had found and secondly the Public Analyst and found 20 number of rodent hair and excreta per kg. while the Central Food Laboratory found 12 number of rodent hair and excreta per kg. Thereafter the charge was amended and on the amended charge the accused were tried. The learned trial Magistrate found both the accused guilty and convicted and sentenced them as stated above. In appeal the learned Sessions Judge, Sangli found that the charge was not properly proved and, therefore, he allowed the appeal and set aside the conviction and sentence imposed on the accused.
3. The State feeling aggrieved with the acquittal of the accused preferred this appeal.
4. At the hearing of the appeal it is noticed that while sending the sample to the Central Food Laboratory the trial Court did not follow the procedure laid down in section 13(2)(b) of the said Act. The said sub-section 2(b) of section 13 reads as follows :---
'On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2-A), the Court shall first ascertain that the mark and seal of fastening as provided in Clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, one of the parts of the sample under its own seal to the Director of Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.'
5. The trial Magistrate before sending the sample to the Central Food Laboratory did not examine and ascertain that the marks and seals fastened as provided in Clause (b) of sub-section (i) of section 11 were intact and the signature of the panchas were not tampered with. As the trial Magistrate did not follow the procedure laid down in sub-section 2(b) of section 13 of the said Act, reproduced above, the report of the Director, Central Food Laboratory, Ex. 16, could not be made the basis for convicting the accused of the offence punishable under section 7(i) read with section 16(1)(a)(i) of the said Act. The learned Counsel for the State has fairly conceded that the learned trial Judge did not follow the said procedure. Therefore, on this point alone the appeal must fail and it is not necessary to consider the other points relied upon by the learned Sessions Judge for acquitting the accused.
6. In the result, there is no substance in the appeal and hence it is dismissed. The bail bonds are cancelled.