S.K. Kadar, J.
1. An order of acquittal in a case under the Prevention of Food Adulteration Act, 1954, as amended by Act 35 of 1976, hereinafter referred to as the Act, passed by the Chief Judicial Magistrate, Thodupuzha, in C.C. 145/79, is challenged in this criminal appeal filed by the Food Inspector. Thodupuzha Circle. On March 27, 1979 at 5 p.m. the Food Inspector, Alacode Panchayat, Thodupuzha Circle (PW. 1) inspected the factory run by the respondent, Managing Partner. The Tropical Fruit Products, Alacode for the purpose of purchasing a sample of a food article which the concern was manufacturing for sale. Accused 2 and 3 before the trial Court are the other partners of this concern. The respondent was manufacturing in his factory synthetic vinegar, orange squash, etc. under a licence granted by the local panchayat and also a licence granted under the Act. At the time of inspection, the respondent was present in the factory and PW. 1 found a number of bottles of vinegar kept for sale in the factory. In order to take a sample of synthetic vinegar, which is an article of food, PW. 1 served a notice in Form No. 6 (Ex. P2) on the respondent. Thereafter he purchased one bottle of synthetic vinegar from the respondent after paying him its price. Ex. P3 is the voucher issued by the respondent acknowledging receipt of its price. PW. 1 opened the bottle purchased by him and sampled the same in accordance with the provisions of the Act in the presence of witnesses and the respondent. The sample purchased by PW. 1 was divided into three equal parts and was filled in three clean and dry bottles and each part of the sample was duly packed and sealed and label containing sample No. 6 was pasted on each of the sample bottles. Everything enjoined under the Act and rules framed thereunder was complied with by PW. 1. A mahazar Ex. P4 was prepared on the spot attested by 2 witnesses and also by the respondent. One part of the sample taken was sent to the Public Analyst for analysis along with Form VII memorandum. The remaining two samples were forwarded to the Local (Health) authority along with two copies of Form VII Memorandum. An intimation as required under the provisions of the Act and the rules was sent to the respondent. On analysis, as per Ex. P 6 report Of the Public Analyst the sample was adulterated and did not conform to the standard prescribed for synthetic vinegar under the Prevention of Food Adulteration Rules, 1955. Thereafter, PW. 1 filed a complaint before the trial Court against the respondent and 2 others who are partners.
2. In support of the prosecution case, besides PW. 1, PW. 2, PW. 3, PW. 4 and PW. 5, the Executive Officer of the local Panchayat, were examined and documents Exs. P1 to P11 were marked.
3. The respondent when examined on the prosecution evidence admitted that the Tropical Fruit Products, Alacode, is a partnership concern; that he is the managing partner and that the 2 other accused are also partners. As regards the evidence of PW. 1 that he purchased a sample of synthetic vinegar from the respondent, he admitted the visit of PW. 1 to his factory, but stated that the vinegar was not kept for sale; that it was kept for testing and the bottles were not sealed and labelled. He admitted receipt of Ex. P2 notice and issuance of Ex. P3 bill.
4. On behalf of the respondent, DW. 1, a Chemist of Malabar Coast Products, DW. 2, a neighbour and DW. 3, the respondent himself, were examined and there were no documents to be marked on his side.
5. The learned Magistrate on a due consideration of the evidence found that the article of food from which the sample was taken was intended for sale. But, on the ground that the sampling was defective due to violation of Rule 22A of the rules framed under the Act and also finding that the prosecution has failed to prove that accused 2 and 3 are in any way connected with the management of the firm, acquitted all the accused.
6. Attacking the judgment of acquittal, Shri. K. Thankappan, learned advocate appearing for the appellant, strongly contended that the trial Court has committed a serious error in holding that violation of Rule 22A is fatal to the prosecution; that no prejudice has been caused to the accused persons in this case by not complying with Rule 22; that the quantity purchased was sufficient for analysis and therefore the order of acquittal should be set aside and the respondent be dealt with according to law.
7. Shri Mathai Taikaday, learned advocate appearing for the respondent with equal vehemence supported the order, and contended that Rule 22A is mandatory; that violation of that rule is fatal to the prosecution; that in any view, there is absolutely no evidence that the synthetic vinegar from which PW. 1 purchased the sample was intended for sale.
8. The points which arise for decision in this appeal, in view of the above contentions raised on either side, are whether violation of Rule 22A is fatal to the prosecution and whether the synthetic vinegar found in the factory of the respondent from which sample was taken by the Food Inspector was intended for sale.
9. The learned advocate appearing for the respondent, in support of his contentions placed strong reliance on decisions reported in Bhagwandass v. State ; Harish Kumar Pahwa v. State of Punjab 1982 2 FAC 249; Sushil Kumar v. State of Punjab 1982 2 FAC 252; State of Kerala v. Balakrishnan 1972 Ker LT 964 : 1973 Cri LJ 1554; and Food Inspector v. Suwert & Dholakia (P.) Ltd. 1982 Ker LT 364 : 1982 Cri LJ 1707. The counsel appearing for the appellant, on the other hand, relied on the decisions in Om Prakash v. Delhi Administration : 1976CriLJ197 ; State of Kerala v. Alasserry Mohammed : 1978CriLJ925 ; Food Inspector v. Prabhakaran 1982 Ker LT 809 : 1983 Cri LJ 81 (FB) and State of Punjab v. Devinder Kumar 1983 Cri App (SC) 306 : 1983 Cri LJ 980.
10. In the light of the latest ruling of the Supreme Court on the point and also the decision of the Supreme Court in State of Kerala v. Alasserry Mohammed : 1978CriLJ925 , I do not think of necessary to discuss the various decisions cited by the counsel for the respondent in detail in support of his contention that Rule 22A is mandatory and as such violation of Rule 22A is fatal to the prosecution. The decisions of the Punjab High Court to the effect that the provisions in Rule 22A are mandatory and violation of this rule is fatal, to the prosecution is no longer good law in the light of the decision of the Supreme Court in State of Punjab v. Devinder Kumar 1983 Cri App R (SC) 306 : 1983 Cri LJ 980. The decision of this Court in State of Kerala v. Balakrishnan 1972 Ker LT 964 : 1973 Cri LJ 1554 has no application to the facts of this case. There was no evidence in that case that the coffee powder purchased by the Food Inspector was in 'sealed containers' or that the packets were sealed. The words 'sealed containers' occurring in Rule 22A were construed in that decision and on the facts of that case it was held that Rule 22 A did not apply to that case.
11. In State of Kerala v. Alasserry Mohammed : 1978CriLJ925 a larger Bench of the Supreme Court construed Rule 22 and held that Rule 22 is directory and not mandatory. It was observed in that decision that the whole object of Section 11 and Rule 22 is to find out by a correct analysis, subject to further. verification and tests by the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not and that if the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, then merely because the quantity sent was not in strict compliance with the rule will not result in the nullification of the report and obliterate its evidentiary value. Their Lordships also have considered1 Rule 22B in that case, and observed that Rule 22B was added not by way of amending it but was for the purpose of clarifying the law. Rules 22 A and 22B are subsidiary to Rule 22 and not amendments made but introduced for the purpose of clarification and simplification of the procedure in taking samples in certain cases avoiding the division of the sample into three equal parts as required in Section 11 of the Act.
12. In State of Punjab v. Devinder Kumar 1983 Cri App R (SC) 306 : 1983 Cri LJ 980, the Supreme Court held that Rule 22A was enacted apparently to get over the difficulty that may arise in taking sample and dividing it into three parts as required by Section 11(1)(b) of the Act where each sealed container containing the food in question contains a quantity less than the required quantity to be taken as sample for purposes of Section 11 read with Rule 22. Rule 22A was promulgated for the purpose of overcoming an objection to the effect that the contents of two or more different sealed containers could not form the parts of the same sample. The Supreme Court observed (Para 4):
Rule 22A of the Rules does not state that where a sealed container contains a quantity larger than what is required for purpose of Section 11 read with Rule 22 the sealed container as such should be taken as sample and that no sample can be taken after opening the sealed container. It may be stated here the inevitable consequence of the acceptance of this argument of the accused which has appealed to the High Court is that where a manufacturer or distributor sells food stuffs in large sealed containers containing quantities much larger than what is required to be taken as sample under the law and the contents of only one such container are exposed for sale by a vendor after opening the container, a Food Inspector would not be able to take a sample at all for proceeding under the Act against the manufacturer, distributor or even the vendor. We feel that any construction which would lead to such absurd result should be avoided while construing the provisions of the Act. The precautions prescribed in Section 11 of the Act which have to be observed while taking samples are indeed adequate to prevent effectively any false sample being sent, to the Public Analyst. If there is any prejudice caused to the accused by any negligence on the part of the authorities concerned in taking or sending the* true sample to the Public Analyst, the prosecution may have to fail.
It was also observed by the Supreme Court in that case (Para 3):
Adulteration and misbranding of food stuffs are rampant evils in our country. The Act is brought into force to check these social evils in the larger public interest, for ensuring public welfare. In certain cases the Act provides for imposition of penalty without proof of a guilty mind. This shows the degree of concern exhibited by Parliament in so far as public health is concerned. While construing such food laws Courts should keep in view that the need for prevention of future injury is as important as punishing a wrong-doer after the injury is actually inflicted. Merely because a person who has actually suffered in his health after consuming adulterated food would not be before Court in such cases, Court should not be too eager to quash on slander grounds the prosecutions for offences, alleged to have been committed under the Act.
A report of a Public Analyst has great significance and importance and sanctity for the protection of a citizen as well as for protecting the general public and their health against use and consumption of adulterated food. It will be hazardous and dangerous to public health to acquit the accused on technical grounds which have no substance.
13. A Full Bench of this Court in Food Inspector v. Prabhakaran 1982 Ker LT 809 : 1983 Cri LJ 81 (FB), while construing Rule 9A of the Prevention of Food Adulteration Rules, observed (Para 18):
No provision in an enactment of the nature of the Prevention of Food Adulteration Act should be read in such a way as to search for and find a purely technical reason for dropping the penal proceedings.
In Food Inspector v. Suwert & Dholakia (P) Ltd. 1982 Ker LT 364 : 1982 Cri LJ 1707, the decision cited by the counsel for the respondent, the learned Judge observed (Para. 11):.the language of the statute should be construed 'in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention'
The Supreme Court has now authoritatively pronounced that violation of Rule 22A per se is not fatal to the prosecution. In the instant case, the respondent has no case either before the Court below or before this Court that the procedure adopted in the matter of sampling was defective except asserting that Rule 22A has been violated. It is not disputed before this Court that the sample bottle of synthetic vinegar purchased by the Food Inspector was a sealed one. The evidence in this case shows that the bottle of synthetic vinegar purchased by the Food Inspector contained more than the prescribed quantity under Rule 22. The acquittal of the respondent on the ground of violation of Rule 22 is wrong and illegal and cannot be sustained.
14. The next question for consideration is whether the article of food found kept in the factory of the respondent from which the sample was purchased by the Food Inspector was intended for sale. The learned advocate appearing for the respondent strongly contended that Storage simpliciter is not an offence under the Act unless there is evidence that the article found in the factory was intended for sale. It is true that storage simpliciter is not an offence. It Is in support of this contention, the counsel cited the decision in Food Inspector v. Suwert & Dholakia (P) Ltd. 1982 Ker LT 364 : 1982 Cri LJ 1707. That was a case where tea was found stored in a godown and the plea of the accused therein was that the tea found in the godown was not stored for sale but it was stored for blending and export. That also was an appeal against acquittal and a learned Judge of this Court concurred with the findings of the trial Court that tea found in the godown was not intended for sale. Further this Court in that decision considered and construed whether storing for export would come within the definition of sale under the Act. There was clear evidence in that case that the tea stored in the godown was not for local sale or for sale anywhere in the State. This Court observed in that case that export cannot be said to be a sale under the Act.
15. In the instant case, there is the evidence of PW. 1 corroborated by documents that the article of food found inside the factory was intended for sale. Of course DW. 3 has stated that these bottles were not sealed and labelled and were kept for testing. A number of sealed bottles of synthetic vinegar were found in the factory. During cross-examination PW. 1 has stated that respondent himself admitted before him that these bottles were kept for sale.
16. The trial Court on a due consideration of the evidence of PW. 1, the simultaneous records prepared on the spot wherein he has stated that these, bottles were kept for sale and also the evidence adduced on the side of the accused, found as a fact that' these bottles were intended for sale. On a reappraisal of the evidence, I find no ground to interfere with this finding of the Court below. The Public Analyst found that the sample sent to him was in a fit state and sufficient and adequate for analysis. It has been conclusively proved that the sample of article of food involved in the case is adulterated. No prejudice has been caused to the accused on any account. The accused also has no case that any prejudice has been caused to him in this regard. No other points arise for consideration.
17. Finally, the learned advocate appearing for the respondent submitted that this is a small factory; that the respondent is a young man; that as per Ex. P6 no injurious articles had been added to the sample of food and that therefore this Court may take a lenient view in the matter. But in view of the fact that it was only on a wrong interpretation of law that the trial Court acquitted the accused and the accused has got a right of hearing on the question of sentence under Sub-section (2) of Section 248, Cr.P.C. this case has -to go back to the trial Court.
In the result this appeal is allowed, the order of acquittal of the respondent is set aside and the case is sent back to the trial Court for fresh disposal according to law, on the evidence already on record and in the light of this judgment.