1. This order will govern Ori. Appeals Nos. 180 of 1966 and 181 of 1960, as in both the cases the question is the same.
2. The respondents Shankerlal and Abbasbhai in both the cases were proceeded against under Sections 7 and 16 of the Prevention of Food Adulteration Act. Both were convicted by the Magistrate First Class Thandla but have been acquitted in appeal. The acquittal is on the ground that while the articles were sent for analysis by the Food Inspector to the Public Analyst certain rules were not observed,
3. The Rules 7 and 18 which are subject-matter of this appeal read as follows:
On receipt of a package containing a sample for analyst from the Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seal on the container and the outs; cover with specimen 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 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 the-Analysis.
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 (registered post or delivered to him or to any person authorised by him.)
4. It has been argued by the learned Government Advocate that when there is no evidence indicating that the seal was not sent, it is to be presumed that the seal was sent and therefore one cannot say that the rules were not observed. The other argument is that it is not very material whether the rules are observed or not. The rules . are not mandatory but they are merely directory.
5. Reliance was placed on a case reported in : AIR1964All199 , Municipal Board Faizabad v. Lalchani in which their Lordships have observed:
The report that the analyst had submitted-described in a more accurate manner what he was actually expected to do and in fact he did-though there was a deviation from the form. In any case, even if the report was not on the prescribed form, under Section 13(5) of the Act, it was a document purporting to be a report signed by a public analyst and was evidence of the facts stated therein.
But the observations in Allahabad case arose but of the following facts:
The last point that was urged on behalf of the respondents was that there is no link evidence in the case indicating that the sample that was actually sent to the public analyst was the same that was taken by the Food Inspector. As to this we have the statement of the Food Inspector that the sample was sent from the-office. We have the report of the Public analyst that the seals were found intact when the sample was received. We have however no evidence of the person who actually despatched the samples and where these bottles remained in the mean time. The respondents were also given a sealed bottle at the time of the taking of the sample from them. If they wanted to challenge the fact that the sample that bad been sent to the Public analyst was not the same that bad been taken from them, or that the sample that had been sent had been tampered with during the course of transit or during the period it was stored in the office of the appellant, they could have Bent their own sample for analysis as provided under Section 12 of the Prevention of Food Adulteration Act, 1954. This point also therefore has no force.
6. From what is quoted above, it is clear that the rules which are subject matter of this appeal were not at all discussed by their Lordships. The above observations were made without referring to the non-observance of the rules, but because the accused wanted to challenge the report of the public analyst on the ground that there was a possibility of tampering the sample.
7. The next case cited by the learned Government Advocate is , Swaroopram v. State, in which the observations are 'There is presumption that seals were not tampered with'. But these observations were made by his Lord, ship on the following facts:
Finally it was argued that no evidence was produced to prove that the samples were not tampered with after they had been taken. The samples were duly sealed by the inspector in presence of the applicant. They were received by the analyst in a sealed condition. There is no material on record from which any suspicion might arise that the bottles were tampered with. The presumption therefore is that the seals were not tampered with.
8. On the other hand Gujrat High Court in : AIR1964Guj136 State v. Shantaben have discussed the effect of non-observance of Rules 7 and 18 and have held:
When the rules were not followed one cannot be sure that the sample which reached the public analyst has not been tampered on the way'. 'These rules are framed in order to prevent the possibility of tampering with the sample before it reaches the public analyst. There is nothing on the record to show that these rules have been complied with either by the Food-Inspector or the public analyst. The report of the public analyst merely shows that the seals were intact and unbroken, but it does not show that the seals on the container, were compared with the specimen seals Bent by post to the public analyst. Unless this is done we cannot be sure that the sample which has reached the public analyst, was not tampered with on the way, and Rules 7 and 18 are framed In order to prevent such a possibility. As this has not been done, we cannot Bay that the report of the Public Analyst refers to the sample of the milk that was attached from the respondent. On this ground there la no reason to interfere with the acquittal.
9. In Criminal Revs. Nos. 398 and 399 of 1965 (Madh Pra), (Ramkiaan v. State) decided on 28-7-1966, the same question arose for consideration before Sen J. In those cases he agreed with the view expressed in AIR 1964 Guj 136 and held that the Rules 7 and 18 are mandatory.
10. It cannot be doubted that the report of the Public Analyst is admissible only under certain circumstances. It is admissible under the Prevention of Food Adulteration Act provided certain formalities are observed. If the formalities are not observed, the report cannot be made admissible. That shows that the rules are mandatory. If the rules are mandatory there cannot be a presumption that official acts have been properly performed. The fixing of the seal is no doubt an official act and sending the sample of the seal also is an official act; but the admissibility of the document depends on the performance of the official acts which should be proved by evidence. There is not an iota of evidence in this respect Section 13(5) of the Act says that the report signed by the public analyst can e used as evidence of the fact stated therein. It is therefore clear that the public analyst must mention in his report that he received the seal intact and be had compared the seal with the specimen seal that was sent to him by the Food Inspector and they tallied. If that is done, no other proof may be necessary.
11. It is true that the respondents were given samples at the time of taking samples by the Food Inspector and they could have sent their Own samples for analysis; bat we do not think that the accused have got any obligation to send the samples. They are given to the accused and they may take advantage of it or not; but that does not mean that once the sample is given to the accused, the Food Inspector and public analyst are immune from observing the rules.
12. No other point has been raised in these appeals. We therefore agreeing with the view taken by the Gujrat High Court in : AIR1964Guj136 and the view taken by Sen J. in Cri. Revs. Nos. 898 & 399 of 1965 dismiss both the appeals.