R.N. Aggarwal, J.
(1) The facts relevant for the decision of this petition are these: On 17th September, 1976, Food Inspector Vinod Kalra lifted a sample of curd of cow's milk from the shop of the accused Tulsi Ram Verma at Nangalrai, Delhi. The Food Inspector divided the sample in three equal parts and poured them in 3 clean and dry bottles and after adding 16 drops of formalin sealed the bottles in accordance with the rules. The Food Inspector sent one part of the sample to the Public Analyst and the remaining two parts to the local health authority as required by sub-clause (c) to section 11 of the Prevention of Food Adulteration Act (hereinafter called 'the act'). The Public Analyst found the sample to be adulterated due to O.53 deficiency in milk fat percent. On receipt of the report from the Public Analyst the Municipal Prosecutor filed a complaint under section 7 read with section 16 of the Act against the accused. A copy of the report of the result of the analysis was also sent to the accused as required by section 13. The accused made an application to the Court for sending the sample kept by the local health authority for analysis to the Central Food Laboratory. On the application, the Magistrate gave a direction for the production of the remaining two parts of the sample. In compliance of the order of the Magistrate samples were produced before him and the Magistrate after satisfying himself that the mark and the seal and fastening are intact passed an order for sending one out of the two bottles of the sample to the Director of the Central Food Laboratory for examination and report. The Director, Central Food Laboratory, vide his communication dated 17th March, 1977 reported that the sample was found to be leaking and, thereforee, was declared unfit for analysis. It appears that the said communication did not reach the Court and on a query from the Court, the Director wrote on 10th June, 1977 to the Magistrate informing him that the sample was found to be leaking and, thereforee, was declared unfit for analysis.
(2) The Municipal Prosecutor made a request to the Court under the proviso to section 13(2C) of the Act for sending the third part of the sample to the Director Central Food Laboratory for analysis. The above request was opposed by the accused on the ground that the third part could only be sent if the second part of the sample was lost or damaged, but since the report of the Director was that the sample was leaking the case did not fall within the ambit of the proviso to section 13(2C) and, thereforee, the third part could not be sent for analysis to the Director.
(3) The learned Magistrate agreed with the contention of the counsel for the accused and consequently turned down the request of the Municipal Prosecutor, Against the aforesaid order the Municipal Corporation of Delhi has come in revision.
(4) It will be useful to discuss some of the relevant provisions of the Act and the rules framed there under. Section 11 of the Act lays down the procedure that is to be followed by a Food Inspector while taking a sample of food for analysis. Section 11(1)(b) provides how a sample is to be taken. Sub-clause (c) of the above said section provides that the Food Inspector shall send one part of the sample for analysis to the Public Analyst and the remaining two parts to the local health authority for the purposes stated therein. Section 13 lays down the steps that are or can be taken after the receipt of the report of the Public Analyst. The later part of sub-section (2) of section 13 gives a right to an accused, after prosecution is filed against him, to file an application to the court within a period of 10 days from the date of the receipt of the copy of the report to get the sample of the article of food analysed by the Central Food Laboratory. Sub-sections (2A), (2B) and (2C) of section 13 are relevant for the decision of this petition and it will be useful to reproduce them in extenso and they read as under:
'(2A)When an application is made to the court under sub- section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition.
(2B)On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and dispatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.
(2C)Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the Court : Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the pan of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B).'
(5) Rules 14 to 22-A which are contained in Part V of the Prevention of Food Adulteration Rules deal with sealing, fastening and dispatch of the samples. Rule 16 is relevant and it reads as under :
'R.16.Manner of packing and sealing the samples : All samples of food sent for analysis shall be packed, fastened and sealed in the following manner namely :
(A)The stopper shall first be securely fastened so as to prevent leakage of the contents in transit.
(B)The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive.
(C)The paper cover shall be further secured by means of strong twine or thread both above and across the bottel, jar or other container and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender.
Aseal or signature slip of the vendor may also be affixed on the sample if the vendor so desires.'
(6) From a reading of the above mentioned various provisions of the Act and the Rules it would appear that all samples of food which are taken for analysis are to be packed, fastened and sealed in the manner indicated in rule 16, and under section 13(2B) before the Magistrate decides to send any part or parts for analysis to the Director of Central Food Laboratory he has to ascertain that the mark and seal or fastening as provided in clause (b) of sub-section 1 of section 11 are intact and thereafter dispatch one of the parts of the sample under his own seal to the Director of the Central Food Laboratory, the contingency of sending the third part for analysis to the Director of the Central Food Laboratory under section (2B) only arises if the sample sent to the Central Food Laboratory is lost or damaged.
(7) The question arises in this case, when a sample can be said to be damaged. The learned Magistrate appears to be of the view that the sample can be said to be damaged only if the bottle is smashed but if the report is that the sample has leaked then the case will not fall within the meaning of the word 'damage' and, thereforee, the provisa to section (2C) would not be applicable. The Magistrate has drawn the distinction in the following words :
'THUSthere is clear distinction between words leakage' and 'damage'. The leakage of the contents is the result of improper sealing and fastening which is a breach of mandatory provision of rules whereas the damage in the circumstance which is not in the control of the prosecution nor in the control of the Food Inspector. The damage of a sample always occurs during transit.'
The Magistrate is further of the view that even if the sample is found to be decomposed by the Director, the case would not fall within the proviso to section (2C).
(8) I have given my careful thought to the reasons given by the learned Magistrate for his conclusion, but I am unable to agree with him. According to the Chambers Twentieth Century Dictionary the word 'damage' means hurt, injury, loss: the value of what is lost: the pecuniary reparation due for loss or injury sustained by one person through the fault or negligence of another, to harm, to take injury.
(9) Before sending a sample to the Central Food Laboratory, the Magistrate has to ascertain that the mark and the seal or fastening are intact. This would mean that in case the Magistrate finds that the seal has been tampered with or that the sample has leaked he would not send that part of the sample to the Central Food Laboratory under sub-section (2B), From the above it would follow that the loss or damage contemplated in the proviso to sub-section (2C) must occur after the sample is dispatched for analysis to the Central Food Laboratory, A sample can get damaged for a number of reasons including breakage and leakage. The possibility of a sample leaking by injury to the sample in transit cannot be ruled out. In my view the word 'damage' used in sub-section (2C) has a wider meaning and it would mean damage of any nature including leakage but the damage must occur after the sample is dispatched.
(10) SUB-SECTION (2C) of section 13 is in terms similar to sub- section 2 of section 11; sub-section (2) of section 11 provides that in case a sample sent to the Public Analyst under sub-clause (i) of clause (c) of sub-section (1) is lost or damaged then the Local Health Authority shall, on a requisition made to it by the Public Analyst or the Food Inspector, dispatch one of the parts of the sample sent to it under sub-clause (ii) of the said clause (c) to the Public Analyst for analysis. The words 'lost' and 'damaged' employed in sub-clause (2) of section 11 and sub-section (2C) of section 13 are to be given the same meaning. In both the cases the loss or damage must occur after the sample has been dispatched to the Public Analyst or the Director, Central Food Laboratory, as the case may be. In case the leakage is found to have occurred due to want of proper sealing and fastening, then the proviso to sub-section (2C) shall not be applicable.
(11) From the above discussion, .it emerges that it is not possible to define or enumerate the circumstances in which the proviso to sub- section (2C) will be attracted but it would depend on the facts and circumstances of each case whether the proviso is applicable or not.
(12) In the case in hand the original report of the Director, Central Food Laboratory, is not forthcoming on the record. In the letter dated 10th June, 1977, the Director has written that the sample was found to be leaking and, thereforee, it was not lit for analysis. There is nothing to show that the leakage had occurred on account of injury to the bettle. Even otherwise, I am of the opinion that it is not a fit case for interference. The revision petition is dismissed.