Manmohan Singh Gujral, J.
1. Gurbachan Singh son of Hardit Singh was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and was sentenced to eighteen months' rigorous imprisonment and a fine of Rs. 1500/-. The appeal of the convict having been dismissed by the Additional Sessions Judge. Amritsar, by order dated 17th November 1970 he has challenged his conviction and sentence through the present revision petition.
2. On 11th September 1969 at about 7 a.m. Municipal Food Inspector Pal Dass went to the petitioner's shop and there found him selling milk, curd and other eatables. Pal pass after serving a notice on the petitioner purchased 660 mls. of cow's, milk which, it Was told by the petitioner, was for sale. The milk was divided into three equal parts and each part was put in a separate dry and clean battle. All the bottles were stoppered and sealed after formalin was added to the contents. One of the bottles was given to the accused, another was sent to the Public Analyst and the third was retained by the Food Inspector. From the report of the Public Analyst it transpired that the milk was adulterated and a complaint was then filed.
3. On 16th March 1970 the petitioner made an application that the sample retained by the Food Inspector be sent to the Director Central Food Laboratory. On this the bottle was produced in Court on 18th March, 1970. When the bottle was produced in Court, though the seal appeared to be intact, it was noticed that there were some marks on the neck of the bottle showing that the milk had spilt from the bottle. The contents of the bottle also appeared to be less. On the request of the learned Counsel for the petitioner, the sample bottle was sent to the Director in that very condition. The report from the Director reveals that the sample was highly decomposed and could not be analysed.
4. On the basis of the above facts it is urged on behalf of the petitioner that he is entitled to acquittal for the reason that his right to have the sample analysed from the Director, Central Food Laboratory, had been taken away by the conduct of the prosecution in not keeping the bottle properly sealed and stoppered. Reliance in support of this argument was placed on certain observations made by D. Falshaw. C.J., in Bhagwandass v. State and the view taken by. the Allahabad High Court in Chintamani v. State 1964 All LJ 893. In order to appreciate the argument raised on behalf of the petitioner, reference will have to be made to Section 11 of the Prevention of Food Adulteration Act. which is in the following terms:
11. (1) When a Food Inspector takes a sample of food for analysis he shall.
(b) except in special cases provided by rules under this Act. separate the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature Permits; and
(c)(i) deliver one of the parts to the person from whom the sample has been taken;
(ii) send another part for analysis to the Public Analyst; and
(iii) retain the third part for production in case any legal proceedings are taken or for analysis by the Director of Central Food Laboratory under Sub-section (2) of Section 13, as the case may be.* * * * * *
This provision came up for interpretation in Bhagwan Dass's case 1962 (2) Cri LJ 400 and D. Falshaw, C.J., made the following observations:
The whole idea of prescribing the elaborate method of taking and 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. The sample to be given to the accused is solely for his own protection, and obviously is intended to enable him to have it analysed privately for the purpose of producing evidence at the trial if necessary, to contradict the report of the public analyst. The third sample is kept in reserve for the matter to be decided by the Director of the Central Food Laboratory in case either party in prosecution is not satisfied with the report of the Public Analyst. In these circumstances it is of the utmost importance to ensure that three samples are of uniform quality. Otherwise the whole value of the check and countercheck is completely lost.
The above observations show that the third sample, which is kept by the Food Inspector, is retained in reserve so that it could be sent to the Director of the Central Food Laboratory in case either party is not satisfied with the report of the Public Analyst. The true meaning and scope of Sub-section (1)(c)(iii) of Section 11 were considered in Chinta-mani's case 1964 All LJ 893 and it was held as under:
In Section 11. Prevention of Food Adulteration Act, 1954. the word used is 'shall' the normal connotation of which is 'must'. There is no reason with it should not be given its natural and normal meaning. The direction given in Section 11(1)(c)(iii) is intended to be a command. It is in nature mandatory.
The Prevention of Food Adulteration Act confers on the accused a right of appeal against the report of the Public Analyst and the statute further entitles the accused to have the sample retained by the Food Inspector sent for examination in order to test the veracity of the report made by the Public Analyst and, if, due to the default of the complainant, the accused is deprived of this right, he is entitled to get the benefit of doubt.
The above observations are fully attracted to the facts of the present case. Admittedly, the sample bottle produced by the complainant was not found to be in good condition as the contents had leaked to some extent. It would, therefore, appear that the right of the accused to obtain a report of the Director of the Central Food Laboratory was taken away by the carelessness of the complainant to keep the bottle with the seal intact and in proper condition. In this situation, it would not be safe to hold the petitioner guilty of the offence beyond doubt. Accepting the view of the law stated in Chintamani's case. 1964 All LJ 893 I allow this revision petition and setting aside the conviction and sentence of the petitioner acquit him.