M.S. Deshpande, J.
1. This revision application by the accused is directed against their conviction by the two courts below under section 7(1) read with section 16(1)(a)(i) and 17 of the Prevention of Food Adulteration Act, 1954 (for short, 'the Act'), and the other order sentencing the applicant No. 1 to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1000/-, and in default to suffer rigorous imprisonment for the three months; and the applicant No. 2, the firm, of which the applicant No. 1 is the partner, to pay a of Rs. 1000/-.
2. Food Inspector-Narvane of Nanded took a sample of catechu on November 8, 1978 form the shop of the applicants and sent it for analysis. The Public Analyst's report, dated December 14, 1978 was received and thereafter consent for the prosecution was obtained on January 24, 1979 and the complaint was filed on March 16, 1979. The Public Analyst, Aurangabad, having reported that the sample of catechu (elible) was adulterated and did not conform to the standard prescribed under Rule A. 20 of the Rules framed under the Act. The applicant No. 1 applied on March 29, 1979 for sending the sample for analysis to the Central Food Laboratory at Mysore in pursuance of the provisions of section 13(2) of the Act. The learned Magistrate sent a letter to the Chief Officer and Local Health Authority, Municipal Council, Nanded, on April 18, 1979, asking him to forward the sample, and after a reminder was sent on April 23, 1979, the sample was received by the Court on May 4, 1979. The learned Magistrate then sent the sample, after obtaining the escort, with a messenger, to the Central Food Laboratory, Mysore, along with his letter, dated May 16, 1979. The Central Food Laboratory issued a certificate on June 12, 1979, confirming that the sample was adulterated. The applicants ultimately came to be convicted on the basis of these reports.
3. The main submission of Shri Ganatra, the learned Advocate for the applicants, was that there was a total non-compliance of the mandatory provisions of section 13(2-B) of the Act and Rule 4 of the Rules framed under the Act. It may be not that both the Public Analyst and the Central Food Laboratory found the sample wanting in two of the requirements which are prescribed under Item 20, Clauses (c) and (d). While he Central Food Laboratory found it waiting also under Clause (f). The submission was that even the identity of the samples which came to examined by the two authorities, had been established, but it would be unnecessary for the purposes of this application to consider that position.
4. Under section 13(2-B) of the Act, it is the duty of the Court on receipt of the sample from the Local Authority to ascertain that the marks and seal or 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, is not tempered with and despatch the part, or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed from the date of receipt of the part of the sample specifying the result of the analysis.
Under Rule 4, Clause (1), the samples may be sent either through a messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form 1 in an outer cover addressed to the Director. Clause (2) requires the container as well a the outer covering of the packet to be marked with a distinguishing number, and under Clause (3), a copy of the memorandum and a specimen impression of the seal used to sell the container and the cover shall be sent separately by registered post to the Director. Clause (4) requires the Director or the Officer authorised by him to record the condition of the seal on the container.
5. In the present case, the sample for analysis was sent with a messenger. No memorandum in Form-1 was sent, but the learned Magistrate sent a letter on May 16, 1979, mentioning therein only that a sample was being sent and quoted therein the number of the Food Inspector which was mentioned on the sample and on the correspondence between him and the Local Health Authority. The particulars of the offence were not mentioned and the matter on which opinion was required was also not referred to in that letter. Even if the letter may not have been in Form-1, if it had satisfied these requirements, the mere formality of non-complying with the letter of Form-1 would not have made any difference. It has been held by this Court that Rule 4(2) requires that a distinguishing mark shall be made by the Court and the memorandum and a specimen impression of the seal should be sent separately. Under Rule 4(3), what is essential is the separate sending of the specimen impression by registered post. There is no evidence in this case of any receipt having been passed by the Central Food Laboratory and none has been produced.
6. The finality to the certificates issued by the Central Food Laboratory can attach only on the observance of the mandatory requirements of section 13(2-B) of the Act and Rule 4 of the Rules framed under the Act. This Court has consistently taken that view and I may refer only to Gopinath Babu More v. The State of Maharashtra, (1980)1 Prevention of Food Adulteration Cases 112); State of Maharashtra v. Dhyan Deo Ramchandra Patil, (1983)1 Prevention of Food Adulteration Cases 9 and The State of Maharashtra v. Omprakash Bulakhidas Agrawal, : 1983(2)BomCR572 . The learned additional Public Prosecutor contended that these points were not raised before the courts below. However, it is obvious that it was the duty of the prosecution to adduce evidence on all the essential aspects of the case, and if this was not done, this Court has to consider whether there is evidence to show that the mandatory requirements have been followed. The point can, therefore, be raised at the revision stage also, if the lacuna exists in the prosecution case.
7. In the result, the rule is made absolute. The order convicting and sentencing the applicants is set aside and they are acquitted of the offence with which they charged. Their bail-bonds are cancelled. Fine, if paid, be refunded to the applicants.