P.A. Kulkarni, J.
1. The appeal by the Food Inspector, City Municipal Council, Mangalore is directed against the judgment of acquittal dt. December 21, 1981, passed by the I Additional C.J.M. Mangalore in C.C. 121/1979 acquitting the accused of the offence under S. 16(1)(a) read with S. 7 of the Food Adulteration Act (hereinafter referred to as the Act).
2. The material facts leading to the case on hand are as under :
On 31-3-1979 at about 7-30 a.m. the complainant PW-1 found the accused selling milk from a can kept in the autorickshaw MYG 5300 which had been parked in front of the Rajeshwari Bhavan hotel Boloor in Mangalore City. The Food Inspector purchased 750 ml. of milk from the accused for the purpose of analysis and paid Rs. 1.50 as the price thereof. He obtained a receipt from the accused as per Ex. P. 2. The Food Inspector PW-1 sampled the milk purchased from the accused in the presence of the accused and panch witnesses as per the procedure laid down under the Act and the rules framed thereunder. The Food Inspector issued a notice in Form No. VI as per Ex. P. 3 informing him that the purpose of the purchase of the milk was for getting it analysed at the hands of the public analyst. He prepared the mahazar Ex. P. 4. It was not only singed by the accused but also by the panch witnesses. The said sample was divided and put in equal quantity into three clean dry bottles. 24 drops of formalin were added to each of the three bottles. The said bottles were sealed with the paper containing signatures of the panchas and the accused. The food inspector sent one of the sample bottles to the public analyst by railway parcel along with memorandum containing specimen seal as per Ex. P. 5. He sent a copy of the memorandum with a specimen seal separately to the public analyst by registered post A.D. Ex. P. 6 is the postal acknowledgment in token of the public analyst having received the sample seal sent by registered post. The Food Inspector then handed over the remaining two bottles to the health officer of the municipality. The public analyst after analysing the sample immediately sent a report Ex. P. 7 to the effect that the sample was adulterated. The food inspector after obtaining the sanction from the District Health Officer as per Ex. P. 8, filed a complaint Ex. P. 10 against the accused. The health officer of the Municipality sent a copy of Ex. P. 7 to the accused along with the covering letter as per Ex. P. 11 by registered post. Ex. P. 12 is the registered acknowledgment signed by the accused for having received the registered letter.
3. The complainant Food Inspector examined himself as PW-1 and marked Exs. P. 1 to P. 12 in support of the prosecution case before charge. The learned Magistrate found on the said evidence that a prima facie case under S. 16(1)(a)(i) read with S. 7 of the Act had been made out against the accused. Accordingly he framed a charge against the accused for the said offence. The accused pleaded not guilty to the charge. As desired by the accused, PW-1 was offered for further examination.
The accused further cross-examined PW-1. The prosecution examined PW-2 and closed its case.
4. The accused was examined under S. 313, Cr.P.C. and he denied the truth of the prosecution evidence.
5. The learned Magistrate concluded that he was satisfied with the evidence of the food inspector as it was both trustworthy and reliable and that the food inspector had purchased the sample milk from the accused and sampled the same at set out in Ex. P. 4 and the for inspector had complied with all the requirements as per S. 11 and other provisions of the Prevention of Food Adulteration Act. However, the learned Magistrate found that Rule No. 7 had not been complied with and that it was mandatory and on that ground the learned Magistrate ordered acquittal of the accused.
6. The food inspector, being aggrieved by the acquittal, has come up with the present appeal.
7. The points that arise for our consideration are :
(i) Whether the prosecution proves that the accused sold or retained for sale on 31-3-1979 at about 7-30 a.m. in Boloor, Mangalore City for human consumption adulterated milk and thus committed an offence under S. 16(1)(a)(i) read with S. 7 of the Act
(ii) Whether the milk purchased from the accused by the food inspector is adulterated
(iii) Whether Rules have been complied with in this case
8. As can be seen from the evidence of P.W.-1, he has been appointed as a food inspector under the act, as per Government Notification Ex. P-1. As can be seen from his evidence, the District Health Officer, Dakshina Kannada, has been empowered by the Government as per Notification ex. P-9 to accord sanction for initiating prosecution under the Act.
9. The food inspector stated that on 31-3-1979 at about 7-30 a.m. he went to Rajeshwari Bhavan hotel in Boloor, Mangalore City and found the accused with 2 cans containing milk which had been kept for sale in the autorickshaw. He stated that the accused was selling mil. He stated that he disclosed his identity to the accused. He stated that he purchased 750 ml. of milk from the accused. According to him, the accused told him that it was cow's milk. He gave Rs. 1.50 as the price of the milk to the accused and obtained a receipt Ex. P-2. The accused has signed on it in his presence. His evidence makes it clear that the accused had brought two cans containing milk in an auto. He also stated that he divided equally the said milk measuring 750 ml. into three clean and dry bottles. He added 24 drops of formalin to the milk in each bottle as a preservative. Thereafter he corked all the three bottles and wrapped them in thick paper. He applied gum to the top. He also affixed a paper slip all aground the mouth of the bottles. He also attached a label containing Sl. No. 10 to each of the three bottles and tied them with twine thread and sealed each of the three bottles with seal 'AR'. He also took the signature of the accused on the paper slip attached to the bottles on which the seal was put. He also gave a notice in Form No. 6 to the accused that he had purchased it for getting it analysed at the hands of the public analyst. Ex. P-3 is the copy of the notice and it bears the signature of the accused. He prepared the mahazar Ex. P-4 sitting on the spot itself, mahazardars were present at that time and they too have signed the mahazar Ex. P-4. He sent one of the three sealed bottles to the public analyst along with memorandum Ex. P-5 by the railway parcel. That memorandum contained the sample seal. He sent another copy of the memorandum along with specimen sent by registered post to the public analyst. Ex. P-6 is the postal acknowledgment duly signed by the public analyst in token of having received the said copy of the memorandum and the sample seal. He received the public analyst's report Ex. P-7 which shows that the milk in question was adulterated. He also handed over the remaining two bottles to the District Health Officer. He sought the sanction of the D.H.O. to prosecute the accused. The D.H.O. accorded the sanction to prosecute the accused. The Government has authorised, as per Notification, the D.H.O. to permit and sanction the prosecution. He filed the complaint as per Ex. P-10. The D.H.O. sent a copy of the public analyst's report Ex. P-7 with a covering letter by registered post. Ex. P-11 is the copy of that covering letter. Ex. P-12 is the postal A.D. in token of the accused receiving it. He stood the cross-examination well. We do not find any infirmity, unnaturalness or contradictions in his evidence. His evidence sounds absolutely truthful and reliable and is quite safe to act upon. The learned Magistrate has rightly believed the evidence of P.W.-1.
10. Learned counsel Smt. Anasuya for the accused contended that there was no compliance with S. 10(7) of the Act and with R. 7. Under S. 10(7) of the act, the food inspector, while taking sample of the food for purpose of analysis, must call one or more persons to witness the same. The Panch witness PW-2, according to her, has not fully supported the prosecution. But, however, it cannot be forgotten that even PW-2 admits that he was present when the mahazar Ex. P-4 was drawn and when the sample milk was put into bottles. He also admits that Ex. P-4 bears his signature. He also states that there were cans containing milk in the autorickshaw. He supports PW-1 in all other respects except in relation to the person from whom it was purchased. He also admits that the said milk had been brought for sale and the person who had brought the milk, was present. It is not the case of the accused that he was not present there at all. Therefore even if the evidence of any witness is required, PW-2 supports the evidence of PW-1 in material particulars. Therefore it cannot be said that there is no compliance with S. 10(7) of the Act. In Prem Ballab v. State (Delhi Admn.), reported in : 1977CriLJ12 , it has been held that conviction can be based on the sole testimony of food inspector if his evidence is trustworthy. As already stated above, the evidence of PW-1 is wholly reliable and trustworthy and quite safe to act upon. Thus it is proved that the accused had come there with two cans containing milk and sold 750 ml. of milk to the compliant-food inspector for getting it analysed at the hands of public analyst and that PW-1 has fully complied with all the legal formalities. The procedure laid down under S. 10(7) of the Act has been completely complied with by the food inspector in the case. Hence, the argument of Smt. Anasuya the learned counsel for the accused, is rejected.
11. Smt. Anasuya then contended that Rule 7 of the Prevention of Food Adulteration Rules is mandatory and that it had not been complied with by the Food Inspector, R. 7 reads as follows : 'On receipt of a package containing a sample for analysis from a food inspector or any other person, the public analyst or an officer authorised by him shall compare the seals on the container and the outer cover with the specimen seal received separately and shall note the conditions of the seals thereof'. The Public analyst's report Ex. P-7 clearly reads as, 'I hereby certify that, I, the Senior Chemist, Public Health Institute, Bangalore-9 Public Analyst for City Municipal Council, Mangalore duly appointed under the provisions of the Prevention of food Adulteration Act, 1954, received on the 12th April, 1979 from the Food Inspector, City Municipal Council, Mangalore a sample of cow's milk vide letter No. Nil dated 31-3-1979 for analysis, properly sealed and fastened, and that I found the seal intact and unbroken. The seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis'. Thus, it becomes clear by the perusal of the public analyst's report that he had received the specimen impression of the seal sent separately by the food inspector by a registered post and that sample impression tallied with the seals found on the bottle. That certificate also shows that the seals found on the bottle were intact and unbroken. The sample seal was also intact and unbroken. Therefore we really fail to understand as to what more could be expected in the case S. 13(5) of the Act reads as;
'Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the I.P.C.'
Therefore the certificate Ex. P-7 is a substantive evidence in the case as laid down by S. 13(5) of the Act. If the accused though that the recitals therein were not correct he could have requested the court to secure the public analyst for cross-examination Admittedly no such request has been made on behalf of the defence. Smt. Anasuya, learned counsel for the accused contended that the words showing the tallying of the specimen seal with the seals on the bottle were printed and that it would not be sufficient to show that the public analyst had applied his mind to the same. It cannot be expected of a public analyst to write down everything in his own hand because he has to send hundreds of certificates every day. If the seals on the bottle and the specimen seal sent to the public analyst did not tally, he would have scored off the printed portion. Merely because it is in printed form, one cannot jump to the conclusion that the public analyst had not observed the seal at all and he had not applied his mind to that aspect at all. Therefore the said argument advanced by Smt. Anasuya does not appeal to us in the least. The learned Magistrate appears to think that what would be admissible under S. 13(5) is only the result of analysis like the fat content and solids content etc. His view that the recital in the certificate that the specimen seal tallied with the seals affixed on the bottle, cannot be read in evidence, is opposed to S. 13(5) of the Act itself. Rule No. 7 also requires that the public analyst should not the conditions of the seals. S. 13(5) of the Act, says that the certificate may be used as evidence of the facts stated therein in any proceeding under the Act. Therefore, the view of the learned Magistrate, is opposed to R. 7 as well as S. 13(5) of the Act. Smt. Anasuya referred us to Food Inspector, Mangalore Municipality v. K. S. Raphael, 1981 Cri LJ 1149 (Kant) and contended that non-compliance with Rule 7 was fatal and if R. 7 had not been complied with, the accused is entitled to be acquitted. The learned single Judge has stated in para 17 : 'It was argued, as provided under S. 13(1) of the Act and sub-rule (3) of R. 7 of the Food Adulteration Rules, the Public Analyst had furnished a report in Form No. 3 regarding the result of the analysis, certifying to the effect that the sample sent for analysis was properly sealed and packed and the seals were intact and unbroken. Therefore there was no scope for contending that the sample sent was in any way tampered with. But it appears, there is not much substance in this contention. S. 13(1) and sub-rule (3) of R. 7 provided for furnishing a report regarding the result of analysis and as such the report Ex. P-7 was admissible only to prove the result of analysis and not the fact of comparison of the seals on the container and the outer cover with the specimen seal received separately and their condition. Therefore, like any other fact, it was obligatory on the prosecution to prove that the seals on the container and the outer cover were compared with specimen impression separately received and condition of the seals thereon was noted. What has been stated in Ex. P-7 in this behalf cannot be read as substantive evidence. As stated above, both Rules 7 and 18 are mandatory in nature and compliance thereof had to be established. If there is no compliance of the Rues 7 and 18, that vitiates conviction'. In para 18 it is ruled as : 'This Court in Mary Lazrado v. State of Mysore, reported in (1965) 2 Mys LJ 107 : (1966 Cri LJ 1036) : (AIR 1966 Mys 244), following the decision in State of Gujarat v. Shanthaben : AIR1964Guj136 held as follows; (at p. 34 of Cri LJ).'Non-compliance of Rr. 7 and 18 which prescribed the procedure to be followed in packing, sealing and despatching of the sample by the Inspector affects the evidentiary value of the report made by the public analyst so as to vitiate the conviction under S. 7 read with S. 16 of 'the Act'. The same view has again been reiterated by this Court in Belgaum Borough Municipality v. Shridhar Shankar Kundri, reported in (1967) 2 Mys LJ 299 : (1968 Cri LJ 952) : (AIR 1968 Mys 196). It is held (at p. 954 of Cri LJ) Rr. 7 and 18 of the Prevention of Food Adulteration Rules are mandatory in nature. Thus, where there is no evidence that the Food Inspector sent a copy of the memorandum and a specimen impression of the sea, used to seal the packet to the Public Analyst separately by post, there is non-compliance of the Rules which vitiates the evidentiary value of the report of the Public Analyst'. In the said case (1968 Cri LJ 952) : (AIR 1968 Mys 196) there was no evidence to show that the specimen impression of the seal was sent by registered post as required by R. 18 and other provisions of the Act. In the said case, it was found as a fact that there was no evidence to indicate that the food inspector had sent a copy of the memorandum and the specimen seal to the public analyst separately by post and thus there was no compliance with Rr. 7 and 18. But in this case, as already stated above, the evidence of the food inspector and the postal acknowledgment Ex. P-6 clearly establish beyond doubt that the food inspector had sent the copy of the memorandum along with specimen seal or impression to the Public Analyst by Regd. Post A.D. Therefore, the facts available in this case are altogether different from the facts available in the said case.
12. Smt. Anasuya contended that it had been held in the said case that the public analyst's report was admissible only to prove the result of the analysis. According to her, it was not admissible to prove that the seals were found intact and that they tallied with each other. She stated that what had been stated in the public analyst's report cannot be read as substantive evidence in this connection. With due respect to the learned single Judge, we are of the opinion that the principle laid down in Food Inspector, Mangalore Municipality v. K. S. Raphael, 1981 Cri LJ 1149 (Kant) is opposed to R. 7 and S. 13(5) of the Act.
13. In the result, the prosecution has proved by satisfactory cogent and reliable evidence beyond a pale of doubt that the accused has committed an offence punishable under S. 16(1)(a)(i) read with S. 7 of the Act. So the order of acquittal is set aside and the appeal is allowed and we convict him of the offence under S. 16(1)(a)(i) read with S. 7 of the Act.
14. Smt. Anasuya contended that the accused was a poor man. The fact that he was carrying two big cans containing milk, that too for selling to the hotel, would belie her contention. He appears to be a milk vendor on a large scale. The offences under the Act are offences against the society, and are motivated only with the object of making profit at the cost of public health. The temptation to get rich at the cost of public health cannot be countenanced at all in our poor country. She also urged that the accused was a first offender S. 16 prescribes a minimum imprisonment of 6 months and a fine of Rs. 1000/- even in respect of the first offenders. It is no doubt true that the subsequent provision says that if there are any adequate or special reasons, to be mentioned in the judgment, the Court may impose a sentence of imprisonment for a term which shall not be less than three months and a fine of Rs. 500/-. But we find that there are no reasons, much less adequate and special, in this case to reduce the minimum sentence prescribed in the Act. Therefore, the accused is convicted of the offence under S. 16(1)(a)(i) read with S. 7 of the Prevention of Food Adulteration Act and he is sentenced to undergo R.I. for six months and to pay a fine of Rs. 1000/- or in default to undergo further R.I. for 1 1/2 months.
15. Appeal allowed.