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Belgaum Borough Municipality by Its Prosecutor D.S. Sadre Vs. Shridhar Shankar Kundri and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 223 of 1966
Judge
Reported inAIR1968Mys196; 1968CriLJ952; ILR1967KAR1156; (1967)2MysLJ299
ActsPrevention of Food Adulteration Act - Sections 7, 16 and 16(1)(A); Code of Criminal Procedure (CrPC) , 1898 - Sections 417(3); Prevention of Food Adulteration Rules - Rules 7 and 18
AppellantBelgaum Borough Municipality by Its Prosecutor D.S. Sadre
RespondentShridhar Shankar Kundri and anr.
Excerpt:
.....that since there was an infringement of rules 7 and 18 of the rules framed under the prevention of food adulteration act which are mandatory, the prosecution had failed to establish the charge against the respondents beyond all reasonable doubt and he accordingly acquitted the respondents. malimath the learned counsel for the appellant that the view of the learned magistrate that there was non-compliance of the mandatory provisions of the rules to wit rules 7 and 18 of the rules framed under the prevention of food adulteration act is clearly erroneous. we are clearly of the opinion that kalagate j. malimath we have no hesitation in holding that the learned magistrate is perfectly justified in coming to the conclusion that the non-compliance of the mandatory rules, in particular rules 7..........the second respondent caused to be sold 360 milliliters of that adulterated safflower oil to the food inspector sri mendoza, in the court of the judicial magistrate. first class, belgaum city. in answer to the charged framed under section 7 of the prevention of food adulteration act both the respondents stated that they had not committed the offence. the prosecutor led evidence to prove that the first respondent sold safflower oil to the food inspector of belgaum city on 31-12-1964 and that the second respondent caused the same to be sold. the food inspector who purchased 360 milli litres of safflower oil from the first respondent in the presence of the second respondent who is the owner of the shop; that he divided the oil into three equal portions and put them into three empty clean.....
Judgment:

Hombe Gowda, C.J.

(1) The respondents were prosecuted for an offence punishable under Section 16(1)(A)(I) read with Section 7 of the Prevention of Food Adulteration Act on the allegation that on 31-12-1964 at about 2 p.m. they were found to have stored adulterated safflower oil (Kusumba) in their shop in house No. 655 at Raviwar Peth, Belgaum and that the first respondent sold and that the second respondent caused to be sold 360 milliliters of that adulterated safflower oil to the Food Inspector Sri Mendoza, in the Court of the Judicial Magistrate. First Class, Belgaum City. In answer to the charged framed under Section 7 of the Prevention of Food Adulteration Act both the Respondents stated that they had not committed the offence. The Prosecutor led evidence to prove that the first respondent sold safflower oil to the Food Inspector of Belgaum City on 31-12-1964 and that the second respondent caused the same to be sold. The Food Inspector who purchased 360 milli litres of safflower oil from the first respondent in the presence of the second respondent who is the owner of the shop; that he divided the oil into three equal portions and put them into three empty clean bottles in the presence of the respondents and sealed them. He also gave evidence to the effect that he intimated the respondents that he was sending the sample oil to the Public Analyst since it was adulterated and gave on of the bottles which had been sealed to the first respondent and obtained a receipt from him. he further gave evidence to the effect that he sent the other sealed bottle to the Public Analyst and kept back the other one with him.He subsequently produced the bottle containing the sample oil which was with him before the Court. He also stated that he sent the sample seals to the Public Analyst and that the certificate issued by the Public Analyst indicated that the oil had been adulterated. Mr. Sadre, who presented the complaint also gave evidence as P. W. 2 in the case. He stated that he received the report of the Food Inspector and also the Public Analyst's certificate and was convinced that the safflower oil that was sold by the respondents to the Food Inspector on 31-12-1964 was adulterated and it was necessary that the respondents should be prosecuted and thereafter filed a complaint. The respondents entered upon their defence but did not examine any witness on their behalf. On the materials placed on record, the learned Magistrate came to the conclusion that the prosecution had satisfactorily established by convincing evidence that the respondents sold safflower oil to P. W. 1 Mendoza on 31-12-1964 and that the said sample oil was adulterated. But the learned Magistrate held that since there was an infringement of Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act which are mandatory, the prosecution had failed to establish the charge against the respondents beyond all reasonable doubt and he accordingly acquitted the respondents. It is the correctness and legality of this judgment of the learned Magistrate that is challenged in this appeal which is filed under sub-section (3) of Section 417 of the Code of Criminal Procedure.

(2) It is urged by Mr. Malimath the learned counsel for the appellant that the view of the learned Magistrate that there was non-compliance of the mandatory provisions of the Rules to wit Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act is clearly erroneous. He contends that the Food Inspector had given evidence to the effect that he sent the sample seals with a memorandum to the Public Analyst along with the sealed bottle and that the evidence had not been challenged; that being so, the learned Magistrate was not at all justified in holding that because he had not specifically stated that he sent the sample seals along with the memorandum 'separately by post' to the Public Analyst, Rule 7 and Rule 18 of the Rules frame under the Prevention of Food Adulteration Act have been infringed. To appreciate this argument, it is necessary to quote the relevant rules framed under the Prevention of Food Adulteration Act, Rule 18 reads thus:

'A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by post.'

Rule 7 reads thus:

'On receipt of a package containing a sample for analysis from Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.................' The above Rules make it abundantly clear that it is obligatory on the part of the Food Inspector to send a copy of the memorandum and a specimen impression of the seal used to seal the packet to the Public Analyst separately by post. P. W. 1 Mendosa who is the Food Inspector and who purchase the oil from the first respondent had not stated anywhere in his evidence that he sent a copy of the memorandum and a specimen impression the seal used to seal the packet to the Public Analyst separately. The question for consideration, therefore, is as to whether the said Rule is mandatory and the non-observance of the same vitiates the entire trial and the order of acquittal in the circumstances is therefore, justified. The question as to whether these rules are mandatory or directory came up for consideration in Mary Lazrado v. State of Mysore 1965(2) Mys LJ 107 (AIR 1966 Mys 244). In the said case Tukol J. considered the question whether the non-compliance of the provisions of Rr. 7 and 18 of the prevention of Food Adulteration Rules in any way affects the evidentiary value of the report of the Public Analyst so as to vitiate the conviction under Section 7 read with section 16 of the Prevention of Food Adulteration Act and observed as follows:

'The rules which prescribe the procedure to be followed in packing, sealing and dispatching, the same by the Food Inspector in the discharge of his duties serve two objects; Firstly, they leave no scope for tampering with the article of food which is one sealed and packed in the prescribed manner in the presence of respectable witnesses. Secondly the requirement to send a specimen impression of the seal used by the Food Inspector in a separate packet is to enable the Public Analyst to verify the seal of the packet of sample before him and to ensure him that the sample he is to analyse is the self-same sample received from the Inspector. this method of check and verification provided for by the rules is the only guarantee against tampering and is a definite source of confidence both to the accused and to the court that the sample analysed was the very sample which had been submitted by the Food Inspector. In fact, it is the report or the certificate issued after such analysis that virtually concludes the accused against himself. The procedure prescribed by the Rules serves a great public purpose by guaranteeing impartial and honest handling of the sample despatched to and received for analysis by the Public Analyst.

To argue that the Rules could be regarded as directory because the accused is given the liberty of submitting the sample in his possession for analysis is to render the guarantee afforded by the Rules meaningless. The burden of proving the guilt of the accused is on the prosecution and if the report or the certificate is to be used as evidence without calling the Public Analyst or the Director of the Central Laboratory for evidence as the law now permits then it is imperative that all the rules prescribing the procedure commencing from the stage of purchasing the sample of food leading up to its analysis are strictly observed. To argue that the accused has got the liberty of getting his sample analysed to counter-act the effect of the report of the Public Analyst is to require the accused in every case to prove his innocence.'

We entirely agree with the observations of His Lordships and hold that Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act are mandatory in nature and any non-compliance of the Rules affects the evidentiary value of the report of the Public Analyst. As already stated, the learned Magistrate has come to the conclusion that the certificate issued by the Public Analyst has no evidentiary value.

(3) Mr. Malimath contended that another Bench of this Court has taken a contrary view in Laxman Sitaram Pai v. State of Mysore, 1966 (1) Mys. LJ 569 : (Air 1967) Mys 33) and in fact exactly in similar situation. He urged that in somewhat similar state of evidence that is now before us, Kalagate J. had held that the certificate issued by the Public Analyst was valid and could be acted upon. He, therefore, contended that we should accept the evidence of the Food Inspector given on oath and which is not seriously challenged in his cross-examination and hold that he must have sent the sample seals along with the memorandum by registered post separately to the public Analyst for purposes of comparison and the seals must have been compared by the Public Analyst. We are clearly of the opinion that Kalagate J. did not lay down any such proposition of law in the case referred to above. If it is construed to lay down any such proposition of law, we have no hesitation to say that it is wrong. The interpretation of Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act are mandatory and the non-compliance of those Rules affects the evidentiary value of the certificate and in the absence of extraneous evidence the conviction is sure to be vitiated.

(4) Having considered the contentions of Mr. Malimath we have no hesitation in holding that the learned Magistrate is perfectly justified in coming to the conclusion that the non-compliance of the mandatory rules, in particular Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act vitiated the certificate. There is no other reliable evidence on the basis of which the respondents could be convicted. Hence the acquittal of the respondents is justified.

(5) In the result, therefore, for the reasons stated above, this appeal fails and the same is dismissed.

(6) Appeal dismissed


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