(1) The Judgment in this Criminal Appeal will also dispose of Cr. Appeal 180 of 1971; it will, however, be sufficient to state the facts in Cr. Appeal 119/71. The respondent (Sunder Lal) in both the appeals is the same person and the facts are practically identical except that the samples in question were sent to the Director, Central Food Laboratory, Calcutta in this appeal, but not in Cr. Appeal 180 of 1971. Despite this difference it will be convenient to dispose of both the appeals by a common judgment.
(2) The Food Inspector, Shri M. M. Kathpalia (P. W. 3) purchased Hing (asafoetide) which the respondent Sunder Lal had kept for sale on behalf of his firm M/s Nand Lal & Co. (2nd accused) at shop No. 600, Katra Ishwar Bhavan. Delhi (the same of Hing in Cr. Appeal Iso of 1971 was purchased by the same Food Inspector from shop No. 918, Gali Chah Sharin, Frash Khana, Delhi (belonging to the second accused). The sample lifted was 300 gms; the price paid was Rs. 3.00 , for which a receipt (Ex. P.A.) was issued, it bears the thumb impression and signature of the respondent. The respondent is a partner of the second accused firm, which was discharged on the ground that no sentence of imprisonment could be passed on a firm.
(3) The sample was filled in three dry bottles, by dividing it equally, and sealed according to rules. One of the sample bottles was given to the accused: another was sent to the Public Analyst along with memo (Ex. P.B.) and the third was kept for being produced into court when needed. In his report (Ex. P.B.) the Public Analyst had found that the sample contained 2.38% by weight of total ash; O.50% by weight of ash insolube in dil. Hcl; unpermitted coal tar dye and less than 1% starch. The alcoholic extract with 90% alcohol by U.S.P. 1936 method was 9.7 per cent; Galbanum, Colophony and most foreign resins were absent.
(4) The sample which wa.s examined by the Director Central Food Laboratory, Calcutta was found to contain 25.5% of total ash: 15.1% of ash insoluble in dilute HCI: alcoholic extract with 90 per cent alcohol by Usp 1936 method was 48.9%, starch was present in traces and test for colophony, galbanum. ammoniacum and other foreign resin was negative; coal tar dye was also absent.
THEstandard specifications for asafoctida has been fixed in Appendix B (under Rule 5 of the Prevention of Food Adulteration Rules, 1955) as per A. .04 as follows :
'ASAFOETIDA(Hing or Hingra) means the oleo-gum-resin obtained from the rhizome and roots of Ferula alliacea, Ferula rubricaulis and other species of Ferula. It shall not contain any colophony resin, galbornum resin, ammoniacum-resin, or any other foreign resin. Hing shall conform to the following standards, namely :
(1) Total ash content shall not exceed 15 per cent by weight. (2) Ash insoluble in dilute hydrochloric acid shall not exceed 12.5 per cent by weight. (3) The alcoholic extract (with 90 per cent alcohol) shall not be less than 12 per cent as estimated by the U.S.P. 1936 method. (4) Starch shall not exceed 1 per cent by weight. Hingra shall conform to the following standards, namely : (1) The total ash content shall not exceed 20 per cent by weight. (2) Ash insoluble in dilute hydrochloric acid shall not exceed 8 per cent by weight. (3) The alcoholic extract (with 90 per cent alcohol) shall not be less than 50 per cent as estimated by U.S.P. 1936 method. (4) Starch shall not exceed I per cent by weight. (Compounded asafoetida or Bandhani Hing is composed of one or more varieties of asafoetida (Irani or Pathani Hing or both) and gum arabica. atta, or rice flour or both. It shall not contain : (a) colophony resin, (b) galbanum resin, (c) ammonia-cum-resin, (d) any other foreign resin, (e) coal tar dyes, (f) mineral pigment, (g) more than 10 per cent total ash content, (h) more than 1.5 per cent ash insoluble in dilute hydrochloric acid, (i) less than 5 per cent alcoholic extract (with 90 per cent of alcohol) as estimated by the U.S.P. 1936 (Method).'
(5) 'THE trial Magistrate acquitted the accused in the view that the samples had not been taken according to the quartering system, that is, the entire sample of asafoetida had not been grounded and equal parts of asafoetida put in each of the three bottles; hence the prosecution failed.' The trial Magistrate, however, did not accept the plea of the accused that asafoetida was not fit for human consumption but only meant for use as pesticide in agriculture. The Municipal Corporation of Delhi has obtained special leave to file this appeal against acquittal.
(6) On the first question whether the samples had been taken properly it is necessary to notice the provisions in the Act and in the Rules pertaining to the taking of samples by Food Inspectors appointed under the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act). They arc best appreciated in the background of the main provisions of the Act. Section 7 of the Act imposes a prohibition on the manufacture for sale etc. of certain articles of food; contravention of any of the provisions of the Act and the Rules made there under has been made punishable. Section 10 authorises a Food Inspector to take any sample of food from any person selling such article after paying its cost calculated at the rate at which the article is usually sold to the public to the person from whom it is taken. He is also enabled to take a sample to be sent to the Public Analyst appointed under the Act. Section 11 lays down the procedure to be followed by the Food Inspector while taking sample of food for analysis. He has to give notice in writing then and there of his inten- corporation to have it so analysed to the person from whom he has taken the sample and 'except in special cases provided by rules under this Act. separate the samples then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits'; the rest of the provisions relate to the delivering of the various samples which need not be noticed for the purpose of this case. Rule 14 lays down the manner of sending samples for analysis : such samples shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully scaled. Rule 15 concerns the labelling of those bottles or containers and how they shall be addressed; Rule 16 relates to the manner of packing and scaling the samples; Rule 17 relates to the mode of sending samples to the Public Analyst; Rule 18 relates to the Memorandum and impression of seal to be sent separately; Rules 19 to 21 relate to the adding of preservatives to samples and maintaining the samples in conditions suitable for analysis: Rule 22 lays down the quantity of sample to be sent to the Public Analyst; in the case of asafoetida it is approximately 100 gms but it is twice the quantity if it is compounded asafoetida. Rule 22-A was inserted by a notification, later on 17-11-1962, providing that 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 be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample.
(7) The observations of the trial Magistrate that the report of the Public Analyst and the certificate of the Direcor, Central Food Laboratory, Calcutta could not pertain to the same article, because of their being widely different, do not appear to be correct. Nobody even suggested that a different sample was sent. The Act provides that when a certificate is issued by the Director. C.F.L. under subsection (2) of section 13 it shall 'supersede' the report given by the Public Analyst given under sub-section ( 1 ). Any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.
(8) The appeal has, thereforee, to be disposed of on the footing that the samples analysed by the Public Analyst as well as the Director Central Food Laboratory, were parts of the same sample which had been taken from the respondent and which had been put separately into three equal bottles. The question whether the sample had been properly taken as required by law is, however, different and has to be discussed at some length. But before doing so it is necessary to notice the evidence that was let in by the respondent.
SHRIG. S. Vilkhu, Deputy Director, Indian Standards Institution, Delhi (D.W. 5) referred to a brochure published by the Isi regarding various methods of tests etc. and stated that the lot of the article out of which the sample was required to be taken, should be 'homogeneous'. He further stated as follows : '...THEdifferent varieties should be first separated if they exist and different lots prepared. Sample then should be taken from each of the lot (sic). In case of taking a sample from an article contained in a big container, parts of the article should be taken from different sides and positions of the container. The material so drawn should be mixed together to make it a composite sample. In case of lumps, these must be grinded and homogenized so as to ensure it is a true sample. The quantity of homogeneous sample should be at least three times more than the quantity required for analysis'.
(9) In cross-examination he admitted that the procedure of sampling laid down in the brochure was only for sampling generally and that no specific mention had been made for Hing or compounded Hing. On reading his entire evidence also we are left with the impression that he was only speaking generally and not with reference to Hing. He, however, agreed in answer to a question put by Court, that a sample not lifted according to the above mentioned method would not be a fully representative sample.
(10) The sample with the Food Inspector was directed to be produced before us at the hearing in order to ascertain realistically how the samples were taken. The sample bottles, in both the cases when produced before us show, that each of them has a narrow mouth; big lumps could not go into it. The asafoetida had thus to be broken into small bits of half inch etc. (many of the pieces were even much too small and even powdery). The argument for the respondent was that the entire 300 gms purchased from the respondent by the Food Inspector should have been ground into powder and then alone the same should have been filled up in those three separate bottles. It is worth recalling that D.W. 5 had admitted that the method of preparing a homogeneous sample of asafoetida had not been mentioned in the brochure. He was, thereforee, merely staling what in his view is the proper manner of taking samples, namely, sample from each lot. It is common knowledge that asafoetida for human consumption is being sold in lumps or pieces to buyers. There is no possibility of their becoming mixed, or settling down, in an even manner, as for instance curd does; that is why samples of curd should be taken after stirring etc. This has been so held (vide Municipal Corporation of Delhi v. Ghisa Ram, 18(1) ILR 1965 Pun 543; it was pointed out that the proper manner and method of taking a sample of curd is that the set curd should be divided vertically and one entire compartment should be taken, churned and then divided into three parts. This was based on the evidence of experts who were examined in that case and who agreed that the above was the proper manner and method of taking sample of curd. No reliance could be placed upon the results of analysis of a sample not properly taken.
(11) The question now for consideration is whether the manner of taking samples in the case of liquids or semi-solids (like curds) has any relevancy in the case of an article for human consumption like asafoetida which is sold in lumps and not even in a powdered state.
(12) Several English decisions were cited at the bar, one of which is the decision of the Court of Appeal in Smith v. Savage 1905 (2) K.B. 88. The appellant who was an officer on duty appointed by the Wilts County Council as inspector under the Sale of Food and Drugs Acts, 1875, visited the respondent's place of business as a grocer. The appellant saw some packets of cream of tartar in the shop and asked the respondent if he sold cream of tartar, whereupon the respondent produced a box containing packets labelled 'Finest Cream of Tartar 98 per cent Bicarbonate of Potassium. B. P. 1898'. The appellant asked for four packets, and was supplied with four packets. which were all similar in size and outward appearance and label and were taken from the same box. The appellant paid four pence for them and told the respondent that the purchase had been made for the purpose of analysis by the county analyst. The appellant emptied the contents of the four packets into one place and then divided the whole of the contents or matter into three parts and sealed them up. From the certificate of the public analyst it appeared that the sample sent to him, which weighed about 1-3/4 oz.. contained lead in the proportion of three-fourths of a grain per pound; cream of tartar preiared according to the British Pharmacopoeia should not contain lead. The Justices dismissed the summons on the ground that the appellant made four separate purchases, each packet being an article and that the appellant by mixing together the contents of the four packets and then dividing the substance so mixed into three parts had not complied with section 14 of the said Act. The appellant contended that there were not separate packets but four separate articles; in other words, each packet was not a separate article within the meaning of section 14 but that the four packets formed one entire purchase. Four packets had to be purchased in order to obtain sufficient quantity for analysis. It was contended for the respondent on the other hand, relying upon Mason v. Cowdary 1900 (2) Q.B.D. 4191 that there had been no compliance with the said provision of the Act. Lord Alverstone, C.J. observed as follows :
'HEREthe appellant asked for cream of tartar, which, as he saw, was put up in penny packets for the purpose of measurement; he said that he would take four penny packets, and I cannot say that, because four Packets of the same article similarly labelled were bought at the same time as cream of tartar and then mixed together and divided for the purposes of analysis, the mixing of them together was a good objection to the proceedings subsequently taken upon the analyst's certificate'.
(13) It will thus be seen that it was not the case of any one that the packets containing cream of tartar ought to have been mixed; per contra, the contention was that mixing them amounted to a violation of the Act. The question which arises turn consideration in the present case is whether the Food Inspector is bound to mix the entire sample of hing, powder it and then divide
(14) In Mason v. Cowdary purchase was made of six two penny bottles of camphorated oil; the oil was exposed for sale in bottles which were apparently not prepared by the respondent but each of which bore a label with the name of a chemist in a neighbouring town upon it. After the samples were taken the inspector divided the six bottles into three lots of 2 bottles each, sealing each separate lot of two bottles in a separate bag. The public analyst's certificate revealed that the camphorated oil in those two bottles contained 17-1/2 per cent of camphor, whereas it should have contained 20 per cent. The Justices were of the opinion that there had been no compliance with the requirement of section 14 because they were not satisfied that the contents of the two bottles analysed by the public analyst were identical in nature and substance with the other two sets of bottles in the hands of the seller and the appellant respectively. The question turned on the applicability of section 14 of the Sale of Food and Drugs Act, 1875, which read as follows :
'THEperson purchasing any article with the intention of submitting the same to analysis shall, after the purchase shall have been completed, forthwith notify to the seller or his agent selling the article his intention to have the same analysed by the public analyst, and shall (offer to) divide the article into three parts to be then and there separated, and each part to be marked and sealed or fastened up in such manner as its nature will permit, and shall, if required to do so, (proceed accordingly, and shall deliver one of the parts to the seller or his agent. He shall afterwards retain one of the said parts for future comparison and submit the third part. if he deems it right to have the article analysed, to the analyst'.
THEappeal against the decision of the Justices was dismissed by Darling, J. holding that the six bottles contained those articles which were required to be divided into three parts and not one of those six articles was divided at all. This was, thereforee, held to be no comptiance with the section. This case is not applicable to the present situation: asafoctida had not been kept in this case in separate containers like bottles and there was no occasion, thereforee, for dividing each container.
(15) Shri Bawa Gurcharan Singh, learned counsel for the respondent. also drew our attention to a case decided by the Queens Bench Division in Skeate v. Moore (reported in All India Prevention of Food Adulteration Cases 1975 at p. 315) (4). This case was decided under the provisions of Food and Drugs Act, 1955 which was the codification of the law pertaining to food and drugs. That was a case where the sampling officer employed by the local authority purchased six of the (Cornish pasties offered for sale for purposes of analysis. He divided the six pies into three lots of two each. One lot of two pies was sent to the Public Analyst for analysis; another he gave to the vendor (appellant) and retained the third for production in the court in case it was needed. The analysis of the two pies sent to the Public Analyst showed that the aggregate of meat in the two pies represented a smaller percentage of the total content of the two pies than the percentage required to be contained in a meat pie under the regulations, and it was on the basis of that analysis, which logically showed that one at least of the two pies analysed had been deficient in meat content, that the appellant was charged and convicted of the offence of selling a meat pie in contravention of the regulations. The procedure adopted by the sampling officer in taking six meat pies and treating them as a sample for the purpose of the Act, dividing them into three lots in the way he had done, was the only practical way of sampling meat pies; if that procedure was technically defective it would amount to the Meat Pie Sausage Roll Regulations, 1967 not being practically possible to be enforced. The Justices reached the conclusion, after referring to section 93 of the Food and Drugs Act of 1955, the relevant portion of Schedule 7 part I, and pointed out that the Court if it thinks fit and must, if asked to do so by either of the parties, order that third part of the sample shall be subject to an independent analysis, and that this procedure presupposed that if not even precisely homogeneous the three parts of one sample should be fairly representative of the whole.
(16) Rule 22A of the Indian Act was noticed earlier, but it may be read:
'CONTENTSof one or more similar sealed containers having identical labels to constitute the quantity of a food sample.
WHEREfood is sold or stocked for sale or for distribution in scaled containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample'.
(17) It was considered necessary to provide thus for articles in separate containers: obviously there was no need to make a separate provision for articles, like Hing, sold in lumps or pieces but not in separate containers.
(18) The argument for the appellant in Skeate v. Moore was that the sample which was to be dealt with in accordance with the English Act must be either co-extensive with the subject matter of the charge or must be a representative sample of larger entity to which the charge relates. Support was sought to be derived from the language of that Act (s. 108) which contained in more than one place reference !o the phrase 'proceedings in respect of an articls or substance sampled' which was held clearly to mean 'as article or substance sampled in accordance with the statutory procedure'. Bridge, .1. in Skeate v. Moore attempted a 'rhetoric' question as to how the proceedings could be said to be in respect of 'a substance sampled' if the proceedings related to part only of the sample taken The whole thing thereforee rested on the language of section 108, which was thus construed. The provisions of the present Act in respect of sampling docs not seem to require the same kind of interpretation except to the extent that when such a homogeneous sample has to be taken when the nature of the article requires it should be so taken. In other words, the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.
(19) One more decision of the Court of Appeal in Lowery v. Hallard 1906 (1) K.B.D. 398 discussed at the bar may also hereferred to. The sample purchased in that case consisted of halt.' a pint of brandy which was divided into three parts, one containing five ounces, another about three ounces and yet another about two but less than two and half ounces. The other requirements of the Sale of Food and Drugs Act, 1875 were complied with. The sample containing Five ounces was sent to the Public Analyst who reported that it was adulterated. It was admitted that it would not be possible to get a complete and satisfactory analysis of brandy containing only two and a half or three ounces. It was contended that since the sample had been divided into three unequal parts the requirements of section 14 of the said Act had not been complied with. The Justices held that there was a sufficient compliance and convicted the respondents whose appeal was allowed on the ground that each of the three parts must enable what has been called a 'checking' analysis to be made. The two parts not fulfillling that purpose the conviction was quashed. Lord Alverstone C. J. with whom the other two learned Justices concurred refused to be constricted by the consideration that there may be cases in which it is impossible to divide the articles into three sufficient parts: in his experience he had not come across such cases and that if there should be any it will be a matter for the legislature. This case was also different because only one of the three parts of the sample was of the requisite quantity and the others were insignificant for the purpose of analysis.
(20) In the present case there is no difficulty on account of the sample or parts of it, not being sufficient for analysis. There is also no difficulty of the kind which semi-solids, like curds, pose in the matter of taking homogeneous samples. It also seems to us that in a case like the present it may not be possible to get three samples precisely similar to each other, even by grinding the entire sample into powder. The entire sample of Hing purchased was broken into tiny pieces, such as would go inside the narrow mouth of the bottle (the bottles were identical in shape and size) after making sure that each of the three samples were 100 gins in weight. It is not even alleged that there was any picking and choosing, when the contents of the sample were put inside those three bottles. It was at random. It would not, thereforee, seem possible to contend that any one sample was not fairly representative of the other. The learned Magistrate seems to have assumed, and too readily, that the difference in the results of analysis made by the Public Analyst and by the Director, C.F.L., Calcutta were due to the sampling not having been done properly, there seems to be no warrant for this inference. The evidence of the expert, examined in defense, docs not even appear to bear out such an inference being drawn.
(21) We are, thereforee, of the view that the sample taken in the present case was in substantial compliance with section 11 of the Act. The report made by the Director, C.F.L., Calcutta superseded that of the Public Analyst. Even though it does not show the presence of coal tar dye still it is a sample which contravenes other specifications in respect of Hing for human consumption, i.e. excessive total ash, ash insoluble in dilute Hcl and alcoholic extract. There was no attempt to show that it was not adulterated by the standards prescribed for asafoedita for human consumption.
(22) On the question whether what was sold was Hing fit for human consumption or whether it was as insecticide for agricultural purposes the finding of the trial Magistrate, as a fact. is against the respondent Having heard the Seamed couinsel for the respondent fully, who took us through the entire evidence both for the prosecution and for the defense in this respect, we see no sufficient ground to come to a contrary conclusion, on this aspect. The question is not whether Hing cannot be used as insecticide, it could well be. It is not even a case of the price of Hing for human consumption being 10 times costlier than that used as insecticide. For 300 gms a sum of Rs. 3 had been paid to the respondent as demanded by him which works out to about Rs. 10 per kilogram. Even according to the defense evidence Hing, as insecticide, costs about Rs. 4 to 5 per kilogram. It has not even been explained by the respondent why he still charged at twice the rate of the price of Hing that is usually chargeable for Hing to be used as insecticide. When a Food Inspector asks for a sample of Hing it is to be normally assumed that he is asking for a sample of Hing fit for human consumption. If it was not so the person selling would naturally point out to the Food Inspector that it was not fit for human consumption but only for use as insecticide in agriculture. In none of the documents contemporaneously prepared at the time of taking the sample was any reference made to the sample of Hing being used as an insecticide in agriculture. If such a representation had been made or, as it was suggested, a board had been put up that it was not fit for human consumption the Food Ins- pector himself would not have gone to the respondents place of business and asked for the sample; even if lie had done so without looking at the board, which is said to exist, he would have been told by the respondent that the sample of Hing was not fit for human consumption and surely he would have made a record of that in the document (s) which he signed in this connection under section 10(9) he would incur penal consequences if he acts vexatiously and without reasonable grounds. Even in the statement which the respondent made when examined under section 342 Criminal Procedure Code . he did not say that he had sold the sample of Hing as one not fit for human consumption but only for use as insecticide in agriculture. If this was so he would have said so during his statement. Instead we find that only a random suggestion was made to the Food Inspector in the course of crossexamination. This was not even followed up by the accused/respondent in his statement under section 342 Criminal Procedure Code . He had then said that the premises from where the sample was taken was godown and that it had not been kept there for sal7e. This is totally different from saving that it had been kept there not for human consumption but only for sale as insecticide in agriculture. The learned triai Magistrate was, thereforee, perfectly justified and correct in rejecting the defenco version that the sample of Hing was sold not for human consumption but for use as insecticide in agriculture.
(23) In the result we set aside the acquittal of the respondent and convict him under section 7 read with section 16 of the Act of 1954.
(24) The next question is one of sentence. The learned counsel for the respondent pressed upon us that the sample in this case was taken as early as in 1970 and there is a lapse of about 5 years since then. We do not think that this circumstance by itself will warrant any leniency being shown towards the respondent. If the facts establish. as we hold they do, that the article sold was not fit for human consumption and was yet sold as fit for human consumption the mere passing of time should not make any difference in the respondent's favor. Nor do we think that the learned counsel for the respondent could invoke any leniency in favor of the respondent by relying on section 16(1) proviso which enables the Court to pass a sentence less than the minimum assuming the present case comes under sub-clause (1) of clause (i) of section 2. It is needless for us to discuss the applicability of the said provision in this case. Even if it does, we do not think that we would be inclined to use our discretion to show leniency to the respondent. We, thereforee, impose upon him the minimum sentence provided by the Act, namely, imprisonment for six months and fine of Rs. 1000. We may clarify that the sentence is imposed not because it is the minimum that is required but because the respondent seems to deserve it. In the result the order of acquittal passed by the trial Magistrate is set aside and the respondent is convicted and sentenced as above. The appeal is allowed accordingly.