1. This appeal by the State is directed against an appellate order of the learned Sessions Judge of Kumaun allowing an appeal preferred by the respondent against the order of learned Magistrate first class Tarai Nainital convicting the respondent of an offence under Section 16 of the Prevention of Food Adulteration Act XXXVII of 1954 hereinafter to be referred as the Act of 1954 read with Section 7 of that act and sentencing him to undergo rigorous imprisonment for a period of six months.
2. The respondent held a shop in Tanakpur and sold sweetmeat. On 16th May 1960 at about mid-day Sri Ziaul Haq Ansari, Food Inspector Fhatima went to the shop of the respondent and purchased 3/4 seers of Besan Laddoos for a sum of Rs. 1-14-0. He divided the laddoos into three equal parts and kept each part in a different phial and sealed the same. One of the phials was handed over to the respondent, the other was retained by the Food Inspector and the third was sent to the Public Analyst who reported that the laddoos were coloured with a coaltar dye known as mentanil yellow. According to Rule 28 of the Rules framed under the Act of 1954 the aforesaid dye was not permitted to be used in food-stuffs. The respondent was accordingly prosecuted and he was convicted and sentenced as indicated above.
3. On appeal it was, inter alia, contended that as Public Analyst had himself not analysed the sample sent to him the report submitted by him was not admissible in evidence. That contention found favour with the learned Judge and he acquitted the respondent.
4. On behalf of State it has been strenuously contended that it was open to the Public Analyst to have caused the sample to be analysed by one o his subordinates and as such the report submitted by him was admissible in evidence and the learned Judge erred in discarding it from evidence.
5. Sub-section (1) of Section 13 of the Act provides that the Public Analyst shall deliver,, in such form as may be prescribed, a report to the Food Inspector of the result of the analysis of any article of food submitted to him for analysis.
6. Rule 7 of the Prevention of the Food Adulteration Rules reads as below :
'Duties of Public Analyst (1). 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 seat on the container and the outer cover with specimens impression received separately and shall note the condition of the seals thereon.
(2) The Public Analyst shall cause to be analysed such samples of food as may be sent to him by the Food Inspector or by any other person under the Act.
(3) After the analysis has been completed he shall forthwith supply to the person concerned a report in Form III of the result of such analysis.'
7. It will be noticed that it is one of the duties ot the Public Analyst to cause a sample of food sent to him to be analysed and thus even if it be held that the Public Analyst did not himself analyse the sample of food in question he had not contravened any of the rules. Form III of Appendix E was amended by a Notification No. F 14-37/59 PH Government of India Ministry of Health and the words 'I have caused to be analysed the aforesaid samples and declare the result of the analysis' were substituted for the words 'I have analysed the aforesaid sample, and declare the result of my analysis'. It would thus appear that the Public Analyst was authorised to have the sampler of the article of food in question analysed by a sub-ordinate of his and to submit his report in the Form in which he has submitted it.
8. It has secondly been contended on behalf of respondent that Rule 7 referred to above was in excess of the powers of the Central Government conferred by Section 23(1), Clause (e) of the Act. The relevant portion of that section reads as below :
''The Central Government may after consultation with the committee and subject to the condition of previous publication, make rules......
(e) defining the qualification, powers and duties of food inspectors and public analysts.'
9. It would thus appear that power has been conferred upon the Central Government, inter alia, to define the duties of the Public Analyst and R. 7 referred to above defines the duties of the Public Analyst. The act of causing the sample to be analysed is one of the duties of the Public Analyst. It could not be contended with any show of reason that the rule-making authority exceeded its powers in providing that the act of causing the sample of food to be analysed will be one of the duties of the Public Analyst.
10. It has thirdly been contended on behalf of the respondent that as the Public Analyst was not produced as a witness the respondent did not have an opportunity to cross-examine him and no reliance should be placed in the report submitted by him. Under Section 13 of the Act it was open to the respondent to challenge the accuracy of the report submitted by the Public Analyst and to demand the examination of the sample by the Director of Central Food Laboratory. But no such step was taken by him and it is now too late in the day to contend that the report of the Public Analyst should not be read in evidence as he was not produced as a witness and the respondent did not have an opportunity to cross-examine him.
11. On behalf of the respondent reliance has also been placed upon the case of Haji Gokal Jetha v. Emperor AIR 1935 Sind 5. The aforesaid case was under the Bombay Prevention of Adulteration Act (5 of 1925). One of the provisions of that Act was that the accused can summon as a witness the Public Analyst who had analysed the article or sample in question. What happened in that case was that on an application filed by the accused for the examination of the Public Analyst the Magistrate allowed the application subject to payment of Rs. 50 and it was against that order that a revision petition was filed in the High Court. The order was set aside and it was observed that there was no sanction in law for making the accused pay costs before he can be allowed to summon Public Analyst as a witness. No such question arises in the instant case and the case cited by the learned advocate for the respondent has no application whatsoever to the instant case.
12. It has next been urged on behalf of the respondent that evidence adduced on behalf of the prosecution was not sufficient to fasten guilt upon the respondent. It was suggested on behalf of the defence that the laddoos purchased, by the Food Inspector were not divided into three parts soon after the purchase, rather the Food Inspector went to other shops and thereafter divided the laddoos into three parts. No such suggestion was made during the examination of the prosecution witnesses. The statements made by the Food Inspector (P. W. 1) and Ahmad Khan (P. W. 2) indicate that the laddoos purchased by the Food Inspector were divided into three parts soon after the purchase and each part was kept in a phial and thereafter the phials were sealed. There is thus no substance in the contention advanced on behalf of the respondent.
13. Even though no argument has been addressedto us on the question as to whether Sub-section (5) of Section 13 of the Act of 1954 which provides that any document, purporting to be a report signed by a Public Analyst, unless jt has been superseded under Sub-section (3), may be used as evidence of the facts stated therein in any proceeding under the said Act or under Sections 272 to 278, Penal Code is in violation of the principles of natural justice, we have considered that aspect of the matter also and are of opinion that as the report of the Public Analyst is open to challenge by the party feeling aggrieved thereby, no violation of the principles of natural justice is involved.
14. It has lastly been contended on behalf of the defendant that the sentence awarded by the learned Magistrate was very excessive. On behalf of the State on the other hand, it has been contended that the respondent had two prior convictions for the contravention of the provisions of Food Adulteration Act to his credit and as such the sentence awarded by the learned Magistrate was not excessive.
15. The relevant portion of Section 16 of the Act 1954 runs thus:
'If any person manufactures for sale, or stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or any rule made thereunderhe shall be punishable for a third and subsequent offences, with imprisonment for a term which may extend to four years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than three thousand rupees.'
16. Keeping in view the fact that Tanakpur is a small place and the respondent could not have commanded customers in an extensive scale the ends of justice, in our opinion, will be met by sentencing the respondent to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 200 and in default of payment of fine to undergo rigorous imprisonment for a further period of one month.
17. We accordingly accept the appeal, set asidethe order of acquittal and sentence the respondent toundergo rigorous imprisonment for three months andto pay a fine of Rs. 200 and in default of payment offine to undergo rigorous imprisonment for a furtherperiod of one month.