B.C. Misra, J.
(1) This appeal has with the leave of this Court been filed by the Municipal Corporation of Delhi and is directed against an order of a Magistrate 1st Class, Delhi, dated 6th August, 1966, by which the learned Magistrate acquitted the accused respondent of the offence under section 7/16, Prevention of Food Adulteration Act, 1954.
(2) The brief facts of the case are that Shanti Nath, Food Inspector, found that the accused-respondent was carrying cow's milk for sale on 22nd January, 1966 at about 7-30 A.M. at Esplanade Road, Delhi. The Food Inspector took a sample of the milk and sent it to the Public Analyst for test which reported 1.5 deficiency in fat vide report Exhibit P.E. which came to 42.8 per cent. As a result, the accused was sent up for trial and the sample was sent to the Director Central Food Laboratory at Calcutta who by report dated 31st May, 1966 stated that milk fat contained in the sample was 1.5 and he gave his opinion that the sample was adulterated.
(3) The learned Magistrate has after examining the evidence found that the Food Inspector in taking the sample added 16 drops of formalin in each of the three samples instead of 18 drops as directed by the notification of the Government dated 31st December, 1965 at the rate of two drops for 25 millimeter or 25 grams. The learned Magistrate found that the same contravened Rule 20 of the Prevention of Food Adulteration Rules and he thereforee, acquitted the accused.
(4) The learned counsel for the Municipal Corporation (appellant before us) has urged that the former notification required two drops of formalin to be added to each ounce of the sample and that it was on account of change to the metric system that the measurement was given as 25 millimeters or 25 grams and the rate was maintained at the same figure of two drops and on calculations, the new requirement would come to about 18 drops in a sample of 2.20 miligrams instead of 16 drops. The learned counsel, however, urges that the sample taken by the Inspector never decomposed and it was subjected to a proper test by the Public Analyst as well as by the Director of Central Food Laboratory, Calcutta and the accused has been prejudiced by the lack of drops of formalin. He has urged that the rule is only directory and its breach does not vitiate the trial. He has cited Public Prosecutor vs . Basheer Sahib, : AIR1966Mad325 and Ramdayal Kallooram vs. State of Madhya Pradesh, 1966 C LJ 1000.
(5) We find that there is force in the submission of the counsel for the appellant. The statutory rule 20 reads as follows :- '20. Preservative in respect of milk, cream and gur :- The preservative used in the case of samples of any milk (including - tone, separated and skimmed milk, standard milk chhanna, skimmed milk chhanna, cream, ice-cream, mixed ice-cream, ice-candy, dahi and gur) in liquid or semi-liquid form shall be the liquid commonly known as 'formalin'......' We are of the opinion that this rule has been added for the purpose of securing the sample and preserving it in good condition for the purpose of analysis and it is a rule which governs the collection of evidence in the case. The said rule is really directory and its breach per se does not not vitiate the trial and the essential test, apart from the reliability of the evidence adduced is one of causing no prejudice to the accused, This Court, construing the provisions of sub-section (7) of Section 10 of the Act, observed that the said provision related to collection of evidence and was not mandatory in the sense that non-compliance with the same would itself render the conviction illegal and that noncompliance may in some cases, where prejudice may be caused to the accused or evidence of the prosecution be otherwise shaky, result in the acquittal of the Accused. On the facts and circumstances of this case, we are satisfied that no prejudice has been caused to the accused and no infirmity can be found with the prosecution case on account of the lack of addition of some drops of formalin in the sample. Neither the Public Analyst nor the Director of the Central Food Laboratory reported that the sample had decomposed or was otherwise unlit for testing. The report of the Director is final and conclusive and since no other infirmity has been pointed out in the evidence on record, the order for acquittal made by the Magistrate cannot be sustained.
(6) The learned counsel for the accused-respondent has urged that the report of the Director of the Central Food Laboratory had not been put to the accused in his examination under Section 342 of the Code of Criminal Procedure. The examination of the accused took place before the Court on 15th April, 1966 and the sample had been sent to the Central Food Laboratory at Calcutta at the request of the accused made on 7th May, 1966 and the certificate had been received on 7th June, 1966. There was thereforee, no occasion for examination of the accused in respect of the report of the Director. Moreover, the accused had himself asked for the sample to be sent and the report of the Director also supports the prosecution case as disclosed from the report of the Public Analyst and it does not disclose any fresh facts or any fresh ingredient of an offence to which the attention of the accused was necessary to be invited. Besides the report is by virtue of section 13(5) of the Act final and conclusive evidence of the facts stated therein and so the accused cannot be allowed to challenge the facts contained in the report. We are of the view that the certificate of the Director may, so far as possible, be put to the accused for his affording such Explanationn in its respect as he may, consistent with the provision of law, be able to give, but on the facts and circumstances of this case, we find that no prejudice has been caused to the accused and it cannot be treated as a rule of law that the certificate should always be put to the accused, and failure to do so is fatal to the trial.
(7) The counsel for the accused-respondent has also urged that the report of the Director should indicate that the analysis had been made by him in person since the prescribed form and the rules require the Public Analyst to himself make the analysis or cause it to be done, although there is no such provisions relating to the report and certificate of the Director. In our opinion there is no substance in the submission. So long as the report, comes under the certificate signed by the Director of the Central Food Laboratory, it is not material as to who the person is who actually made the analysis, since the responsibility for the certificate attaches to the Director and it is the same that has been made final and conclusive under the law. Lastly, the counsel submitted that lack of formalin in the sample had caused prejudice to the accused since the reports of the Public Analyst and of the Director were different. We do not agree with the submission since there is no material or substantial difference between the two reports as both of them show that the fat content in the milk was extremely low and as such the sample was adulterated.
(8) The learned counsel for the respondent has also urged that the accused has now given up the trade of selling the milk and it is an extremely old case and the sample was taken on 22nd January, 1966 and that the accused be not awarded any heavy sentence. We are quite mindful of the circumstances- of the case.
(9) As a result, we allow the appeal and convict the accused-respondent under Sections 7/16 of the Prevention of Food Adulteration Act, 1954. In view of the fact that the accused has, as stated by his counsel, given up the trade of selling milk and that the offence occurred more than 5 years ago, we do not think it will be in the interests of justice to award sentence of imprisonment to the accused. On the record, it has been established that he had been fined a sum of Rs. 300.00 previously on 29th March, 1965 by the Court of Shri R.L. Joshi, Magistrate 1st Class, Delhi, for a similar offence of selling adulterated cow's milk punishable under sections 7/16 of the Act which has been admitted by the accused. Accordingly we sentence the accused to a fine of Rs. 500.00 and in default, he will undergo rigorous imprisonment for two months.