Anna Chandy, J.
1. This appeal is by the Food Inspector of the Cannanore Municipality against the order of acquittal passed by the Sessions Judge in a case in which the District Magistrate convicted the accused under Section 16(1)(a) and 16(2) read with Section 7 of the Prevention of Food Adulteration Act and sentenced to simple imprisonment for one year and a fine of Rs. 2,000. The learned Sessions Judge by judgment dated 16th September 1964 acquitted the accused for the failure on the part of the Food Inspector to comply with the requirements of Section 10(7) of the Act. The complainant took the matter in appeal to the High Court. The appeal was allowed, holding that non-compliance with Section 10(7), even if it exists, is only an irregularity and it was open to the Court to consider whether the evidence of P. W. 1 could safely he accepted. The case was therefore remanded for fresh disposal to the Sessions Court. Then the appellant raised two fresh grounds of attack against the order of conviction; (i) that the quantity of formalin added was insufficient and (ii) that there was no proper compliance of Rules 7 and 18 of the Food Adulteration Rules. On a proper consideration of the evidence of the Food Inspector and taking into account the fact that P. W. 2 the attestor who though literate said that he had signed the record without understanding the contents with a view to help the accused, the court held that P. W. 1 purchased the sample of milk from the accused after complying with the prescribed procedure. The objection that the required quantity of formalin was not added was also found against adopting the evidence of P. W. 1 which was not even challenged on that point. However the previous order of acquittal was maintained on the fresh ground that there has been no proper compliance with Rules 7 and 18 of the Prevention of Food Adulteration Act.
2. Rule 18 reads as follows:
'A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorized by him.' and Rule 7 enjoins that:
'(1) On receipt of a package containing a sample for analysis from Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.
(2) The Public Analyst shall cause to be analysed such sample of food as may be sentto him by the Food Inspector or by any other person under the Act.
(3) After the analysis has been completed the shall forthwith supply to the person concerned a report in Form III of the result of such analysis.'
3. In the absence of evidence to hold that the sample seal was sent by the Food Inspector and was compared with the seal on the sample packet by the Analyst, the learned Sessions Judge held that those provisions were not complied with. The court refused to draw the presumption under Section 114(e) of the Evidence Act holding that the presumption could not be extended to the actual doing of the official acts but only to their performance in a regular manner. Observing that thereare no decisions of the Kerala High Court on the point the learned Judge sought guidance from the decision reported in State of Gujaralv. Shantaben, 1964 (2) Cri LJ 32: (AIR 1964Guj 136).
4. It may he mentioned at the outset that there are the decisions of this Court in Mammu v. Food Inspector, Kuthupuramba Panchayat Board, Cri RP 41 of 1904 (Ker) as also Cri. Appeal No. 304 of 1964, State of Kerala v. Ramakrishnan Nair, 1965 KLT 402 where this Court differed from the view taken by theGujarat Court and following the Division Bench decision in Municipal Board, Faizabad v. Lal Chand, AIR 1964 All 199 held that ina case where the Food Inspector gives evidence that the article was duly scaled and forwarded to the Public Analyst and there is also the report of the Analyst that the sample of food properly sealed and fastened was received by him and the seals were, found intact and un-broken there was no need to let in any 'linkevidence' to show that the sample that was sent to the Food Analyst was the same as that taken by the Food Inspector and it may bepresumed under Section 114(e) Evidence Act that the sample seal was duly forwarded by the Food Inspector and that the Public Analystduly compared the seal as per the rules.
5. It was argued by the learned counsel for the respondent that the said view requires reconsideration. According to him Section 114(e)does not apply to a case where the officialacts themselves viz., the despatch of the sample seal by the Food Inspector and the comparison of it with the seal on the packet by the Food Analyst are not proved to have been done. Several decisions were cited by the learned counsel for the appellant in support of the said contention. Those decisions invariably deal with cases where the act which had to be proved was either a condition precedent to the vesting of jurisdiction in the tribunal or the Government or the Court to act, or formed an essential ingredient of the offence itself and the performance of the act was definitely challenged by the party in the enquiry itself and in some of them there were also special circumstances which stood in the way of the presumption being drawn. None of those decisions are applicable to the facts of this case where the performance of the act of sampling, sealing and forwarding of the article by the Food Inspector as well as the act of ascertaining the seal to be intact by the Food Analyst are proved and the only presumption to be drawn is that those nets themselves were performed in accordance with the prescribed form and procedure, which fact itself was not challenged in the course of the enquiry. The Food Inspector has given evidence that he divided the milk he purchased into three parts, added two drops of formalin, per ounce and then labelled and sealed the bottles and gave one such sample bottle to the accused and got his acknowledgment and sent another sample bottle to the Analyst. His evidence on these points was not challenged. No doubt when questioned under Section 342 the accused denied having received the sample bottle but that has been found against by the learned Judge in the face of Ext. P-1(a) endorsement acknowledging the receipt of it, and the correctness of that finding is not challenged before me. Rule 16 deals with the manner of packing and scaling the samples and Rule 17 says how the containers of the samples fire to be sent io the Analyst. They are to be sent in a sealed packet enclosed together with a memorandum in Form VII in an outercover addressed to the Public Analyst. Form VII besides giving the serial numbers of the sample and the other relevant details contains a declaration that a specimen impression of the seal used to seal the packet of sample is being sent separately by post or hand and in the absence of even a suggestion that the sample seal was not so forwarded it may well be presumed that it was sent as declared in the Form itself. Again ttie Food Analyst who certified in the prescribed Form No. III that the sample sent for analysis was 'properly sealed and fastened and the seal intact and unbroken' could not have done so without comparing the seal and the impression of the seal received separately and satisfying himself that there was no tampering of any sort with the seal. The words 'properly sealed' are significant. They mean sealed according to rules. The contention that the specimen seal was not forwarded was not even taken before this court when the case came up in appeal originally and it was only after the remand that this fresh ground was taken. Ifthere was only occasion for the accused to, feel that the sample bottle forwarded to the Food Analyst was tampered with, he could well have taken steps to send the sample with him for analysis as provided in Section 12 (Section 13(2) ?) of the Act. There is no purpose in dwelling further on this.
6. The order of acquittal passed by the learned Sessions Judge is unsustainable and has to be set aside. It is set aside and the judgment of the District Magistrate convicting the accused under Sections 16(1)(a) and 16(2) read with Section 7 of the Prevention of Food Adulteration Act and sentencing him to undergo simple imprisonment for one year and also to pay a fine of Rs. 2,000 and in default to suffer simple imprisonment for a further period of six months is restored. The fine will be paid within a fortnight.