R.K. Tankha, J.
1. This is an appeal under Section 417(3) of the Code of Criminal Procedure, 1898, filed by the Administrator, Jabalpur Corporation, Jabalpur, against the order of acquittal dated 1-12-1967, passed by the Magistrate First Class, Jabalpur, in Criminal Case No. 986/67, under Section 7/16 of Prevention of Food Adulteration Act.
2. Brief facts of the case are that the respondent owns a shop in Mohalla Gorakh-pur of Jabalpur City. On 30th June, 1967, Food Inspector D. L. Patel (P.W. 2) purchased 475 grams of dalda from the shop of the respondent and paid Rs. 2.75 to him as the price of the same and obtained his receipt (Ex. P/2). Thereafter, D. L. Patel (P.W. 2) filled three bottles with the purchased dalda in equal quantity. All the three bottles were wrapped, fastened and sealed in accordance with the rules. One bottle was given to the respondent and receipt (Ex. P/3) was obtained from him. An Intention notice (Ex. P/l) was also served on the respondent. The Public Analyst H. G. Bapat after examination of the specimen submitted his report (Ex. P/6). He was of opinion that the sample was adulterated. Therefore, the respondent was prosecuted for the offence punishable under Section 7/16 of the Prevention of Food Adulteration Act, for selling adulterated dalda (vegetable hydrogenated oil),
3. In defence, the accused-respondent abjured the guilt and pleaded that he was not the dealer in ghee or oil and the dalda which was purchased by the Food Inspector D. L. Patel (P.W. 2) belonged to one Chhaba-lal (D. W. 1). It was further pleaded that the sample was taken under duress,
4. The learned Magistrate acquitted the accused-respondent on the ground that the sample was not taken by the Food Inspector D. L. Patel (P.W. 2) but by his peon and secondly the quantity of dalda sent to the Public Analyst was short of the quantity as prescribed in rules. Hence the appellant has come up in appeal challenging the said order of acquittal.
5. In the present case we are required to see if the two grounds on which the learned trial Court has based its order of acquittal can be sustained or not. With regard to the first ground the finding of the trial Court is that the Food Inspector D. L. Patel (P.W. 2) failed to perform his duties as contemplated under Section 11(1)(b) of the Prevention of Food Adulteration Act in the matter of taking sample of dalda, wrapping and sealing the bottles, which was done by his peon. According to the said Court that amounts to delegation of powers on the part of the Food Inspector to his peon which was not permissible. Therefore, the Food Inspector having acted contrary to the provisions of the Act, the benefit of which must go to the accused. As regards the delegation of powers is concerned, there can be no two opinions that the same cannot be delegated. But in the present case on perusal of the evidence of Food Inspector D. L. Patel (P.W. 2) and Narain (P.W. 1) in whose presence dalda was purchased and filled in three bottles, we are of opinion that the Food Inspector remained present throughout the process and the manual work might have been performed by the peon, but that would not mean delegation of powers to the peon by the Food Inspector. It is clear from the evidence of Narain (P.W. 1) that the Food Inspector was present throughout. It would be too much to say that in case the Food Inspector gets the work done in his presence and direction by his peon that would amount to abdication of duties as envisaged under Section 11(1)(b) of the Prevention of Food Adulteration Act. In case the Food Inspector would not have been present at the relevant time when the entire process-of Section 11(1)(b) of the Act, was being performed, then alone the reasoning given by the trial Court would apply, as in that case the Food Inspector would be clearly deemed to have acted in contravention of Section 11(1)(b) of the Act leaving the entire matter in the hands of his peon. We find no reason to disbelieve the evidence of Food Inspector D. L. Patel (P.W. 2) in regard to the performance of his duties under Section 11(1)(b) of the Act. That being so in the present case it cannot be said that the Food Inspector did not take the sample himself and perform other duties as contemplated in relation to the same sample under Section 11(1)(b) of the Act. We may also point out at this stage that the word1 'shall occurring in the opening of Sub-section (1) of Section 11 does not mean that the Food Inspector must do all that is contemplated under Sub-clause (b) of Sub-section (1) by his own hands. If he does all by his own hand that would be better, but if an assistance is taken from any of his subordinates and the process is gone through in his own direction and guidance that would not mean that the Food Inspector has not; acted in. accordance with, clause ,(b) of sub section (1). Jin our opinion the trial Court on the wrong potion, of the interpretation of Clause (b) of pub-section (1) of Section U of the Act came to p, wrong conclusion, in the present case.
6. As regards second ground that the quantity of dalda, which was sent to the Punjab Analyst was short of the prescribed quantity required to be'sent and as such that was in breach of R. 22 of the Prevention of Food Adulteration Rules, 1955, which prescribes the quality of sample of food to be sent' to the Public Analyst 'for analysis. According to the trial Court the provisions being hiandafory, therefore,' non-compliance in the present case 'was fatal for' a prosecution and tin that count also the said Court extended benefit of acquittal to the1 despondent. learned Counsel ap-earing for the appellant contended before his that even if the quantity sent to the Public Analyst for analysis was short of the quantity prescribed as in the present case, that would not make his report invalid; as the quantity of sample of food to be sent for analysis mentioned in JJ-,22 thus being only, an approximate; quantity sending of smaller .quantity than the, prescribed would be proper, compliance, with the rule, unless the Analyst finds difficulty, in, analysing because, of the sinfulness quantity .and prejudice is caused to, the accused. In the present case since; the Analyst did not express his difficulty, in analysing and insist on the prescribed quantity being sent, it could not be said that no proper analysis was possible upon a, lesser quantity than the and prescribed in the rules. in support , of his contention the learned Counsel jeremiad two decisions reported in Public Prosecutor y. Basheer Sahib : AIR1966Mad325 and Nagar ! Swagthya' Adhikari Nagar Mahapalika, Agra v.Ant Ram : AIR1985All32 . On the other hand, learned Counsel appearing for the respondent contended that compliance of the provisions of Rule 22 are mandatory in nature and noa-compliance of the same would be fatal to the prosecution. As we see the whole idea o| prescribing the elaborate method of taking an$ dividing up the sample is to have a check and counter check, on the report of the public analyst and the, clear intention is that if the sample of food taken is from a bulk supply the quantity taken must be sufficient to be divided into three sufficient portions for the proper quantity to be sent to the public analyst in accordance with the provisions of Rule 22.. A Perusal of Rule 22 makes it clear that for different items different quantity is prescribed to be sent to public analyst and the opening words of the said rule* are 'the quantity of sample of food to be sent to the Public Analyst/Director for analysis shall be as specified below.' In our opinion, the word .shall' used here makes the compliance of the quantity of sample specified mandatory. Therefore, therefore the revisions of R. 22 have to be read as, of 'mandatory character and that being so non-compliance of the same would vitiate &e; report of the public Analyst if sent on the basis of a lesser quantity. In the present case a table as given in Rule 22 at item No. 16 'Vanaspati shows the quantity required to be sent to the Public Analyst is 500 grams, but actually the quantity given to the Public Analyst in this very case was only 125 grams, Thus that quantity was not even approximate of 500 grams. Be that so, but in view of the recent decision of the Supreme Court the entire argument of the learned Counsel the appellant becomes meaningless and the view taken in the matter by the decisions , of the two High Courts on which a reli4pce has been placed, will not be correct view of the provisions-of Rule 22. In Rajal das G. Pamnani v. State of Maharashtra : 1975CriLJ254 their Lordship in para 17 observed as under:-
17. The appellant also contended that samples were not 'taken in accordance with the provisions of the Act and the rules there- under, Rule 22 states that in the case of asafetida the approximate quantity to be supped for analysis is 100 grams and in the (case of ) compounded asafetida 200 grams. The Publio Arialyst did not have the quan- ities mentioned in the Rules for analysis. The appellant tightly contends that non-compli- ianca with the quantity to be supplied caused not only infraction of the provisions but also injustice. His quantities mentioned are required for contact analysis. Shortage in quantity for analysis is not permitted by the statute.
In view of the above decision of the Supreme Court i it is new clear that non-compliance with the quantity to be supplied as prescribed in Rule 22 does not only amount to infraction of the provisions but also injustice to the accused. Hence, in the present case, in the light of the recent decision of the Supreme Court, we are of opinion that there was non-compliance of the statutory provisions and that being so, the report (Ex. P/6), although mentioned that the sample was adulterated, cannot be taken into consideration for holding the respondent guilty. Therefore, this ground taken by the trial Court in favour of the respondent is sustained. Although on the first ground we differ from the trial Court, but the order of acquittal can still be sustained on the basis of the second ground.
7. For the reasons stated above, this appeal is dismissed.