K.N. Seth, J.
1. The respondents were charged under Sections 7/16(1)(a)(i) and (ii) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) read with Rule 47 of the Rules framed thereunder. It was alleged that on 24-2-1968 the Food Inspector checked Nanak Chand selling and exposing for sale aerated water 'Gold Spot' at his shop in Chowk Sadar Bazar. Meerut. The Food Inspector purchased three bottles of 'Gold Spot' on payment of the requisite amount. The contents of the three bottles were mixed in a jar and thereafter the Food lnspector filled the contents in three separate clean and empty bottles which were sealed on the spot in the presence of the accused. One of the sealed sample bottles was handed over to the acoused and a receipt was obtained. One of the sample bottles was sent to the Public Analyst for analysis and report. The public Analyst reported that the sample of the said aerated water was sweetened with saccharin without any declaration. After obtaining the sanction from the Cantonment Executive Officer Nanak Chand was prosecuted.
2. Nanak Chand admitted the sale of three 'Gold Spot' bottles and the filling of their contents in three separate bottles which were then sealed. He also admitted his signatures on the notice (Ex. Ka. 1) and the receipt (Ex. Ka. 2). He, however, pleaded not guilty to the charge framed against him and claimed that he was working under a warranty of the 'Gold Spot' company.
3. The Proprietor of the Delhi Bottling Company (Private) Limited, Delhi, was also summoned as an accused in the case. D. J, Brahma, Branch Manager of the Company, appeared in response to the summons issued to the Company and stated that as its Proprietor and Manager he was over all incharge of the manufacturing and distribution of 'Gold Spot'. He also stated that warranty had been written on the cash memo. It was admitted that there was no declaration with regard to the use of saccharin and it was asserted no saccharin was used in the preparation of 'Gold Spot'. This accused contested the report of the Public Analyst.
4. The learned Magistrate held that the printed warranty on the cash memos could not be treated as a valid warranty under Section 14 and Rule 12 (A) which require a written warranty in the Prescribed form signed by the manufacturer, distributor or dealer. It was also held that the report of the Public Analyst did not suffer from any infirmity and it was established that the sample sent for analysis contained saccharin. The learned Magistrate further held that the prosecution of the respondents on the complaint filed by the Medical Officer of Health, on the basis of the report of the Chief Sanitary Inspector, was valid. The learned Magistrate, however, acquitted the respondents on the finding that the sample was not taken according to the prescribed procedure and that there was non-comipliance with the mandatory provisions of Section 10(7) of the Act inasmuch as the sample was not taken in the (Presence of one or more witnesses.
5. Rule 22 requires that in the case of carbonated water 600 ml. should be the quantity of the sample article to be sent to the Public Analyst/Director for analysis. In the present case the total quantity of the contents of three bottles of 'Gold Soot' amounted to 600 ml. and only one third of this liquid, i. e. '200 ml. was sent to the Public Analyst for analysis. The departure in following the perscribed rule in this respect would, however, not vitiate the trial. The primary object in prescribing the quantity of the article for analysis appears to be that 'the article must be sufficient in quantity to enable the Public Analyst to analyse its contents. In the absence of any grievance or evidence to the effect that the quantity sent to the Public Analyst for analysis was not sufficient to enable him to carry out the analysis or that it caused any prejudice to the accused, the trial would not be vitiated. In the present case there is absolutely no evidence indicating that the Public Analyst felt any difficulty in conducting the analysis of the sample article.
6. A more serious departure from the prescribed rules was made by the Inspector inasmuch as he did not send the sealed bottles for analysis but opened the Potties, poured their contents in a jar and then put the contents in equal quantity in three separate bottles. Rule 22-A requires:
Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may foe required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample.' 'This rule indicates that where food is sold in a sealed container, the sealed containers as such must be sent to the Public Analyst for analysis of the contents of the containers and it is only when they are sent in that condition that the containers shall be treated to toe part of the sample. If the contents are taken out from the sealed containers, there would be a clear violation of the mode prescribed for taking the sample for analysis. This intention behind 'Rule 22-A has been made clear in the Director General Health Services Circular No. 1-186/64 PH II dated 1-10-1964 and of even number dated 6-1-1955 addressed to A M. Os. The obvious object in framing with the sample and the accused may have confidence in the report of the Public Analyst, (sic) An article manufactured at one place may be sold at places far away from the place of manufacture. When samples are taken at the place where the articles are sold or stocked for sale or for distribution, the manufacturer would be nowhere near the place and would not be in a position to ensure that the; samples have not been tampered with before being sent for analysis. If the article on analysis is found to be adulterated, the manufacturer would be guilty under the Act although the vendor may be protected if he holds a warranty from the manufacturer. The manufacturer would be greatly handicapped in challengnig the report of the Public Analyst for he would not be in a position to lead any evidence that the article in question had been tampered with after taking the sample. On the other 'hand, if the sealed containers as such are taken as sample for analysis, the interest of the munfacturer is amply safeguarded.
7. It is not in dispute that 'Gold Spot' is marketed in glass bottles mechanically capped with metal corks which can be removed with the aid of a key. The bottles are firmly closed or secured with the corks to prevent access or leakage and serve as check against tampering or unauthorised opening. It is thus obvious that Rule 22-A is attracted in taking sample of an item like 'Gold Spot', . As the sample in the instant case was not taken and sent for analysis in the pre-scribed mode, the respondents cannot be convicted on the basis of the analysis of the material which had been taken out of the sealed containers. This circumstance alone is sufficient to justify the order of acquittal of the respondents and the question of violation of Section 10(7) of the Act need not be gone into.
8. In the result the appeal fails and is dismissed.