P.K. Tare, J.
1. This is an appeal Under Section 417 (3) of the Code of Criminal Procedure, on special leave being granted by this Court against the order of acquittal passed by the Second Additional Sessions Judge, Jabalpur, in Criminal Appeal No. 266 of 1966, dated 28-1-1967, arising out of the conviction and the sentence passed by the Magistrate, 1st Class, Jabalpur, in Criminal Case No. 2245 of 1965, dated 13-9-1966. The trial Magistrate had found the respondent guilty of an offence Under Section 7, read with Section 16 of the Prevention of Food Adulteration Act, 1954, as amended by the Amendment Act No. 49 of 1964, and had sentenced him to rigorous imprisonment for 6 months and fine of Rs. 1,000/- or in default further rigorous imprisonment for 3 months for the said offence. However, the learned Additional Sessions Judge reversed that conviction and acquitted the respondent.
2. The facts leading to the present prosecution were that on 17-5-1965, the Food Inspector, Shri M. B. Shrivastava (P.W. 1) went to the shop of the respondent at about 7-30 in the morning. The witness apprised the respondent of the fact that he was Food Inspector and that he wanted samples for testing. At that time one Radhakrishna Gupta was sitting at the shop of the respondent. The witness took the samples of coconut-oil, for which he paid Rs. 1.78 paise as per the receipt, Ex. P/l, signed by the respondent. The respondent also signed another receipt, Ex. P/2, about a sample bottle being handed over to him in a properly sealed condition. The Food Inspector sent the said samples to the Public Analyst on that very day. The shop mentioned was the retail sale shop of the respondent and the necessary form, Ex. P/3, had been signed by the respondent and attested by Radhakrishna Gupta. The Public Analyst as per the report, Ex. P/5, dated 24-5-1965, found the oil to be highly adulterated. His findings were as follows:
B. R. reading at 540 C. 41. 34 to 35.5 Saponification value 275.3 250 to 260, and am of the opinion that the oil is highly adulterated.
The Public Analyst had also mentioned that the sample of coconut-oil had been received from the Food Inspector, Shri M. B. Shrivastava, through peon Ganga and that he had found the seal intact and unbroken over the bottles. On these allegations the respondent was prosecuted for the alleged offence Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954.
3. The respondent gave a written statement disclosing his defence. That was done on 18-3-1966. The respondent in that defence asserted that the shop from where the samples were taken belonged to one, Laxmichand. The respondent had gone to that shop in the company of a servant of Laxmichand. At the time the Food Inspector came, the respondent was in a nearby pan-shop. Radhakrishna Gupta while going to the market for purchasing vegetables had kept his coconut-oil bottle in the shop and had promised that he would take the same on his return. The sample was taken by the Food Inspector at that time. The samples were taken from the oil of Radhakrishna and the shop was that of Laxmichand. It was stated that samples had been taken from the respondent by the Food Inspector on threats being administered. The respondent also led some evidence in defence. We shall discuss it a little later.
4. The learned Magistrate held that the accused sold the adulterated coconut-oil from the shop belonging to him. In that view, the respondent was convicted. The learned Magistrate believed the assertion of the Food Inspector and discarded the defence evidence. On the other hand, the learned Additional Sessions Judge in a lengthy judgment propounding some wrong legal propositions acquitted the respondent, although he observed that the defence had put up a cock and bull story, which was highly incredible. The learned Additional Sessions Judge also felt that the defence story was most unnatural. From that point of view, the learned Additional Sessions Judge agreed with the findings of the trial Magistrate, but he expressed the view that there was another aspect. Although he thought that ordinarily a sale to the Food Inspector by way of a sample will be covered by the definition of sale unless it was proved by the prosecution that there had been compliance with the rules, the prosecution could not secure a conviction. So far as that aspect is concerned, we may observe that the matter is now concluded by a Full Bench decision of this Court in State of M. P. v. Chhotekhan Nannekhan Ghosi : AIR1970MP29 , wherein the Full Bench observed as follows:
The principle embodied in illustration (e) Under Section 114 of the Evidence Act is that when any judicial or official act is shown to have been done in a manner substantially regular, it ?s presumed that the formal requisites for its validity have been complied with. As we have indicated elsewhere, if the statute itself had provided that certain regulations and formalities must be complied with before the report of the Public Analyst could be admitted in evidence, the position would have been different,- for, in that case, it would be necessary to specifically establish that those regulations and formalities were duly observed. In the absence of such a provision, what purports to be report signed by a Public Analyst is, without any other proof, admissible in evidence and the presumption arising Under Section 114 of the Evidence Act to the re- gular performance of official acts also applies to it. The accused is not thereby prejudiced. He may rebut the presumption by cross-examining prosecution witnesses or leading other evidence. He has also been given under Sub-section (2) of Section 13 of the Act the right to show, if possible, that the report is incorrect. So, in Municipal Corporation of Delhi v. Ghisa Ram, : 1967CriLJ939 , the Supreme Court observed:Obviously the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence.
For all these reasons, we are of opinion that the view taken in State of Madhya Pradesh v. Shankerlal, Criminal Appeal No. 180 of 1966, D/- 25-8-1966 and State of Madhya Pradesh v. Abbas-bhai 1967 MPLJ 872 : 1967 Cri LJ 1723 is not correct. In our opinion, the presumption Under Section 114 of the Evidence Act and illustration (e) thereunder in relation to regular performance of official acts applies to the report of a Public Analyst. It is however, a rebut-table presumption. That being so, such a report is not inadmissible only because it has not been specifically established by evidence aliunde that the requirements of Rules 7 and 18 of the Prevention of Food Adulteration Rules, 1955, were duly complied with.'
5. The other reason why the 4 learned Additional Sessions Judge acquitted the respondent was that he felt that the shop had been proved to be belonging to Laxmichand and not of the respondent. That is the only point that we propose to consider. As regards the other observations of the learned Additional Sessions Judge, we may say, that the view of the learned Additional Sessions Judge was absolutely erroneous. He envisaged the possibility of tampering with the sample in between the period of taking the sample and sending it to and its receipt by the Public Analyst. We may observe that that view is based more or less on conjecture and surmise and in view of the pronouncement of the Full Bench in : AIR1970MP29 (supra), the controversy on that aspect need not arise. The learned Additional Sessions Judge mentioned the cases of the other High Courts. We may observe that it is unnecessary to discuss %j all those cases, as the matter, in our opinion, now stands concluded by the said pronouncement of the Full Bench. If we may say so with due respect to the learned Additional Sessions Judge, he never cared to look into the Full Bench case of this Court and, therefore, he strayed into those academic questions and it was for that reason that he preferred to follow the view of the Kerala High Court and the Mysore High Court as opposed to the Allahabad High Court. As such, We may ignore that view of the trial Judge, which on the face of it, is clearly erroneous and as regards the findings, as the learned Additional Sessions Judge agreed with the findings of the trial Judge, we do not think it necessary to consider that aspect as well. However, the material question in the present appeal would be that while the trial Magistrate held that the shop belonged to the respondent, the learned Additional Sessions Judge in view of the defence evidence felt that the shop belonged to Laxmichand and not to the respondent. Therefore, the learned Additional Sessions Judge acquitted the respondent.
6. On this aspect we may observe that the testimony of the Food Inspector, Shri M. B. Shrivastava (P.W. 1) is very clear. The trial Magistrate was very much impressed with the straightforward version given by this witness. At the time the witness went to the shop, he found the respondent Lakhanlal and one, Radhakrishna Gupta sitting at the shop. The witness told Lakhanlal that he wanted to take samples of coconut-oil and accordingly, the samples were taken and all formalities were completed. The receipts were signed by the respondent and some of the forms were attested by Radhakrishna Gupta. The witness was specifically asked in cross-examination whether he knew the number of the house. The witness frankly admitted that he did not know, nor did he fill in the number of the house in the form. He also stated that he did not know whether the shop was being run in partnership or was owned by the respondent. He did not know the capacity of the respondent in respect of the said shop. Further, he stated that he had taken the samples from this very shop on earlier occasions from the respondent. Lakhanlal. But he had taken no action as those samples were found to be unadulterated. Thus, the testimony of this witness indicates that he had taken the samples on the earlier occasions and that it was the respondent, Lakhanlal who had given such samples. The presence of the respondent. Lakhanlal at the shop would imply that it was Lakhanlal who was owning the shop from which the samples had been taken. The witness also stated that the neighbouring shop-keepers refused to attest the receipts or the form. It may be on account of the fact that they may have undue sympathy for a member of their own profession. This witness was examined on 15-3-1966, while he was recalled for further cross-examination on 22-3-1966. In the meantime, the respondent on 18-3-1966 had filed his written defence. It appears that the defence made an attempt to create confusion by producing a certificate of registration of the shop (Ex. D/l) known as Ganesh Oil Stores in which it is shown that one, Laxmichand is the owner of the shop and that he has a servant for running the shop. The said certificate had been obtained on 9-4-1965, i.e. about a month before the samples had been taken by the Food Inspector. Therefore, the obtaining of the said certificate under the Shops and Establishment Act, 1958, can, in no case, be said to be suspicious.
7. Radhakrishna Gupta (D. W. 1) asserted that the oil belonged to him and that the samples were taken from his bottle, which he had kept in the shop of Laxmichand. Evidently, that defence was discarded by the Courts below and we have no reason to take a different view. There can be no doubt that the samples were taken from the shop of the respondent and those samples were given by the respondent. The question will be as to from what shop exactly the samples were taken.
8. There can be no doubt that Laxmichand (D. W. 2) owns the shop, known as 'Ganesh Oil Stores', as is clear from the registration-certificate, Ex. D/l, and in that shop Govindprasad (D. W. 3), is a servant. The Courts below rejected their testimony with reference to the ownership of Radhakrishna Gupta regarding the oil. But the learned Additional Sessions Judge appears to have been impressed by the fact that Laxmichand was owner of the 'Ganesh Oil Stores' and he Imagined that the samples had been taken by the Food Inspector from the shop of Laxmichand. 'We may observe that this was merely an attempt on the part of the defence to create confusion. It may be that Laxmichand may be owner of the shop known as 'Ganesh Oil Stores' which is registered under the Shops and Establishments Act, 1958. But we have, no doubt that the Food Inspector, Shri M. B. Shrivastava (P.W. 1) took the samples from the shop of the respondent and not from the shop of Laxmichand, known as the 'Ganesh Oil Stores'. From the description in the documents and particularly, Exs. P/l, P/2 and P/3, as also from the testimony of the Food Inspector, it is clear that the respondent's shop is a retail oil shop and that it is located in a small place. Had the samples been taken from the shop known as 'Genesh Oil Stores', the respondent would have refused to give the samples from the shop of some body else with which he had no connection. Similarly, the respondent would have insisted on mentioning in the documents that the samples were taken from the 'Ganesh Oil Stores'. The respondent is undoubtedly a shop-keeper selling oil in retail and has a small shop. The very action of the respondent in not insisting on the name of the Stores being mentioned would indicate that the respondent carries on the business of selling some food stuff, including the oil on a small scale and that his shop or his business has nothing to do with the 'Ganesh Oil Stores' belonging to Laxmichand (D. W. 2) of which Govindprasad (D. W. 3) may be a servant. It is too # much to expect that the respondent would willingly give samples from the shop of some one else with which he had no connection. If, it was so, he should have refused to give the samples and should have faced the prosecution for refusing to give samples. This conduct of his clearly indicates that the defence was altogether false even on the point of ownership of the shop and the defence accordingly purported to create confusion by evolving this defence with the help of another shop-keeper, namely, Laxmichand (D. W. 2). We have no doubt that the trial Magistrate was right in holding that the samples were taken from the shop of the respondent. There was no reason for the learned Additional Sessions Judge to have reversed the view of the trial Magistrate in this behalf. It may be that Laxmichand may own another shop, known as 'Ganesh Oil Stores', but the same cannot be allowed to be confused with the petty retail shop of the respondent.
9. As a result of the discussion aforesaid, we are of the view that the learned Additional Sessions Judge altogether acted under a misapprehension and purported to reverse the judgment of the trial Magistrate on such misapprehension of fact as also of law. We have already indicated that it is not necessary to deal with the questions of law as they would not arise and moreover, they would stand concluded by the pronouncement of the Full Bench decision of this Court in : AIR1970MP29 (supra). However, as regards the misapprehension on the question of fact, we feel that the learned Additional Sessions Judge unnecessarily got confused by this subterfuge resorted to by the defence at a late stage when the examination-in- t chief of the Food Inspector Shri M. B. Shrivastava had already been completed. It was just after that this ingenious false defence was thought of and from that point of view, the defence took steps to have the Food Inspector re-called for further cross-examination.
10. In the view that we take, we feel that the judgment of acquittal was clearly erroneous and illegal. Consequently, we allow this appeal and set aside the order of acquittal and instead restore the judgment of conviction passed by the trial Magistrate. Consequently, the respondent would stand convicted of an offence Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 and would stand sentenced to rigorous imprisonment for six months and a fine of Rs. 1,000/- or in default further rigorous imprisonment for three months, which is the minimum prescribed sentence Under Section 16 of the Act.