S. Padmanabhan, J.
1. Complainant is the appellant. Appeal is by special leave against the order of acquittal in a Food Adulteration case. Complainant is the Food Inspector, Tellicherry. Complaint was filed against the respondent, a grocery dealer in Tellicherry Municipal Town, for having sold edible common salt on 28-9-1979 which was found by Ext.P. 13 report of the Public Analyst to be adulterated. The Judicial First Class Magistrate, Tellicherry who tried the case as S.T. 167 of 1979 found the respondent not guilty and acquitted him.
2. According to the standards prescribed by the Prevention of Food Adulteration Rules, the standards for edible common salt relevant for our purpose are: (1) moisture contents should not exceed 6 per cent and (2) sodium chloride contents should not be below 96 per cent. Ext.P. 13 showed that moisture was 12.4 per cent and sodium chloride content was only 85.25 per cent.
3. The finding which resulted is the acquittal are:
(1) Rule 7(3) of the Prevention of Food Adulteration Rules was not sufficiently complied with.
(2) The mahazar prepared is printed form without the necessary details being written in hand cannot be accepted for corroboration of the evidence of the complainant in the box and
(3) Rule 17 of -the Prevention of Food Adulteration Rules was proved to have been complied with.
4. At the time of arguments the counsel for the respondent, (accused) basing on para 9 of the judgment of the trial Court, argued that in addition to Rule 7(3), the trial Court must also be taken to have found that Section 10(7) Rules 14, 16(a) to (d) as well as Rules 17(a), (b) and 18 were not complied with. Though there was no such specific finding as seen from the judgment. 1 am considering those violations also while dealing with the judgment on the merits.
5. Before going further into the merits of the case, I may deal with two grounds taken up by the respondent. The first ground is that even if this Court considers that acquittal was only on the three grounds mentioned above, the respondent is entitled to support the judgment on other grounds also. That position of law was not disputed. Second contention is that since the alleged commission of offence was at Tellicherry which is on the sea coast and since sampling was in September when moisture contents in the atmosphere will be high on account of humidity, the presence of moisture beyond the prescribed limit cannot be taken as an item of adulteration. That is an argument unsupported by any evidence or scientific data to support. No such contentions seems to have been taken in the trial Court. This argument has only to be ignored. Further excessive moisture is not the only item of adulteration.
6. Rule 7(3) provides that the public analyst shall, within a period of 45 days from the date of receipt of the sample for analysis, deliver the report of analysis in Form III to the Local Health Authority. The sample was taken on 28-9-1979 and it was received by the public analyst on 29-9-1979. Ext.P. 13 report is dt. 2-11-1979. The date on which the sample was analysed is not inevidence. The date of analysis is not relevant also. At any rate it cannot be later than 2-11-1979, if not earlier. The analysis was within 35 days of the receipt of the sample. Actual date on which the report was delivered to the Local Health Authority is also unfortunately not in evidence. Anyhow from Ext.P 14 it is seen that the report was received by the Local Health Authority at least on 15-11-1979, if not earlier. Even if it is taken as 15-11-1979 it will only be after 48 or 49 days of the receipt of the sample by the public analyst. The delay is only 3 or 4 days. It is this delay that was found by the trial Court and contended by the respondent to have fatally affected the prosecution because Rule 7(3) is mandatory. I do not think that the Rule is mandatory in order to make a slight violation fatal to the prosecution.
7. Anyhow the objects behind the Rule could only be to have the analysis within a reasonable time in order to avoid the chances of the sample getting unfit for analysis and further to enable the Food Inspector to file the complaint within a reasonable time. Even after receiving copy of the report no time limit is prescribed for instituting the prosecution. Rule 7(3) is on the basis of Section 13(1) of the Act. Under Section 13(2) only after prosecution is launched the Local (Health) Authority need forward the report with the necessary intimation to the accused. There is no case that the report is not received in time or that the provisions of Section 13(2) has been violated. Within 10 days of the receipt of the report the accused is entitled to make an application to the Court to get the sample kept with the Local (Health) Authority analysed by the Central Food Laboratory. In order to effectively exercise that right, which is provided to safeguard the interest of the accused, the sample with the Local (Health) Authority must not have become unfit for analysis. The ultimate object of the time limit under Rule 7(3) may also be the effective exercise of the above said right of the accused.
8. Ext.P 13 report of analysis shows that the sample was properly sealed and fastened and the seals were intact and unbroken and the sample was in a condition fit for analysis. The respondent has not chosen to exercise his right under Section 13(2) to have a second opinion. Had he done so and the sample was found, unfit for analysis it could have been said that he was prejudiced by the delay in complying with the provisions of Rule 7(3) which delayed the prosecution and receipt of the report and intimation and consequently denied the chance of having a second opinion. Rule 7(3) under such circumstances cannot be taken as mandatory and delay, if any, of a few days to comply with Rule 7(3) cannot be taken as fatally affecting the prosecution in the absence of allegation and proof of prejudice. The approach to Rule 7(3) could only be prejudice oriented and an accused who has not attempted to exercise his right under Section 13(2) cannot raise such a plea especially when there is nothing to show that he could not have exercised that right due to the sample having become unfit for analysts.
9. In Shambu Dayal's case : 1980CriLJ809 the Supreme Court had occasion to consider a similar question and it was held:
It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is the clear evidence of public analyst that no change had taken place in the constituents of milk which would interfere with the analysis. As this statement has not been challenged we see no reason for accepting the contention of the learned Counsel that the analysis of the milk after 44 days cannot be accepted. This contention has also to be rejected.
10. In this case the analysis was within 35 or 36 days, if not earlier and the receipt of the report by the Local (Health) Authority was within 48 or 49 days or even earlier. So also the contents of Ext.P. 13 report of analysis were not challenged.
11. In : AIR1967AP131 , it was observed:
It would, therefore, be presumed that the analysis had been conducted soon after the sample was received. The delay in compiling the report does not necessarily mean that the analysis was also delayed. If the Magistrate had any doubt in regard to this aspect of the matter he can examine the public analyst or get a clarification from him.
12. Here also the Magistrate could have examined the public analyst or the Local (Health) Authority if he doubted the date of analysis or the date on which the report was received by the Local (Health) Authority. Both these dates are not in evidence. Ext.P. 13 only shows that the report was prepared on 2-11-1979 which means that the analysis was done on that day or some earlier day. So also Ext P 14 is the intimation dt. 15-11-1979 from the Local (Health) Authority to Food Inspector informing that report of the Public Analyst was received. Date of receipt is not stated and the date could be 15-11-1979 or some earlier date. If the receipt of the report by Local (Health) Authority was actually 3 or 4 days earlier than 15-11-1979 (and that is possible also since the Local (Health) Authority who is having other important duties need not be expected to have given the intimation to the public analyst on the date of receipt of the report itself) there would not have been even the notional violation of Rule 7(3). If the Magistrate found that the delay, if any, was fatal he could have examined the Local (Health) Authority and ascertained from him the actual date of receipt of the report Ext.P 14 has not even been considered or referred to by the Magistrate. The report was received by the accused only on 22-11-1979. The reason mentioned by the Magistrate for violation of Rule 7(3) is that the report reached the accused only beyond 45 days. Time limit fixed under Rule 7(3) is only for the report to reach the Local (Health) Authority and not the accused. After receipt of the report the Local Health Authority has to inform the Food Inspector. The Food Inspector has to file the complaint for which no time limit is fixed. After filing the complaint he has to inform the Local Health Authority. Then alone Local Health Authority need send the report and intimation to the accused. Hence the Magistrate was wrong in considering the date of receipt of the report by the accused as the relevant date for deciding that there was violation of Rule 7(3). A remand of the case for ascertaining the date of receipt of the report by the Local Health Authority is unnecessary in view of the facts that delay, if at all, could only be three or four days, that the Rule is not mandatory and that no prejudice has occasioned.
13. The second ground is that the mahazar (Ext.P.1) prepared in printed form without the necessary details written in hand cannot be accepted as proof for corroboration of the evidence of the complainant in the box. The view expressed by the Magistrate is that the mahazar is a contemporaneous document to be prepared by the Food Inspector on the spot in his hand with the following details namely the demand made by him to the salesman, the reply of the salesman, the sale, the price given, dividing of the article, sampling into three equal parts and all other allied formalities. There is no case that these formalities are not there in the mahazar. I have gone through Ext.P 1 and I find in it the observance of all the necessary formalities. The objection taken by the Magistrate seems to be that a printed form cannot be used and the entire mahazar will have to be written in hand alone on the spot. It is true that some of the observance of the general formalities are printed in the mahazar with blank spaces to be filled up depending upon the details of each individual case. In this respect the Magistrate relied on the decision of the Bombay High Court in State of Maharashtra v. Khachara Das D Bahalgar 1979 FAJ 39. Referring to the formalities to be observed at the time of purchasing and sampling in relation to preparation of the contemporaneous record it was held:
These happenings cannot take place in the same manner in two cases and therefore if the panchas are made to sign upon a printed Panchanama which contains the predetermined narration what they are expected to see and depose then that panchnama in my opinion will be absolutely valueless. When the Food Inspector says that this was recorded in panchnama he is obviously making an incorrect statement.
14. The printed form which prompted the Judge to reach the above conclusion is not before this Court and it may be unsafe to accept the propositions laid down in that decision as a uniform rule applicable in all cases where printed forms are used. Many statutes and rules prescribe printed forms for various official purposes. Instances are not rare where use of printed forms for official acts are made mandatory also. Therefore it may not be correct to lay down as a uniform rule that use of printed forms with details applicable to each instance being filled up in blank spaces has to be rejected. No provision in the Prevention of Food Adulteration Act or Rules prohibiting use of printed forms was brought to my notice also. Therefore with due respect to the Judge who decided the case I have to express my difficulty in accepting the principle as applicable to ExtP 1.
15. General formalities to be observed in demanding, purchasing and sampling may be the same in almost all the cases and these matters alone are printed in Ext.P l with blank spaces wherever necessary. All the details necessary for the individual case were written in hand. There is nothing in Ext.P 1 or the evidence to indicate that the formalities were not complied within the presence of the witnesses or that the witnesses were not aware of the contents when they signed. In fact the Magistrate himself found in para 7 of his judgment that the formalities up to the preparation of the mahazar were proved by PWs 2 and 3 and the various documents including Ext.P 1 mahazar and there was no serious challenge on those aspects. From the judgment what is seen is that the challenge was only regarding compliance of the formalities regarding despatch of containers of samples to the public analyst and the L.H.A. Even the Magistrate has not stated that observance of the formalities is not noted in the mahazar, but the only objection is that some of them are in print with blank spaces.
16. Preparation of mahazar is not a mandate and none of the provisions of the Act or rules provides for such a document being prepared. Section 10(7) is the only relevant provision in this respect and it only provides that the Food Inspector shall call one or more persons to be present at the time when action is taken and their signatures should be taken. That cannot be taken as a mandatory provision. It is only intended by way of caution to have some independent corroboration to satisfy the conscience of the Court and safeguard the interest of the affected person in seeing that things are properly done by the Food Inspector. There may be instances where witnesses are not available or those who are available not agreeing to attest. In such cases nothing prevents the Court from accepting the testimony of the Food Inspector without corroboration or corroborated only by the testomony of interested persons like his subordinates or somebody else. In such cases there is only a rule of caution which persuades the Court to scrutinise the evidence meticulously and cautiously. If found acceptable nothing prevents such testimony being accepted. In the Full Bench decision in Food Inspector v. Prabhakaran 1982 Ker LT 809 : 1983 Cri LJ 81 Subramonian Poti, Ag. C.J. (as he then was) speaking for the Bench observed:
A Court will be cautious in accepting uncorroborated evidence of the Food Inspector or evidence corroborated only by interested testimony. But that is not to say as a proposition of law, that in any and every case where the Food Inspector's evidence is not corroborated the prosecution must fail. If, in the circumstances of a case, a Court feels that the Food Inspector's evidence is entitled to credence and that even if it is supported by only interested testimony there is no reason why such testimony should be rejected, the Court is not precluded from acting on that evidence. The Food Inspector might not have called witnesses to attest because witnesses might not have been available or such of those witnesses as were available might not have assented to affixing their signatures. It may be that because of the situation at the time he takes samples he might have failed to call independent witnesses. It may also be that by an error of judgment he may have called witnesses who turned out to be not independent witnesses though the Food Inspector might have assumed otherwise. In all these cases the failure to call witnesses and seek their attestation may no doubt have bearing on the ultimate outcome of the case in that it would call for a closer scrutiny of the evidence by Court. The provision is not mandatory in the sense that failure to act in accordance with Section 10(7) as to attestation will not by itself be fatal to the prosecution.
17. Mandate of Section 10(7) is only to prove. the factum of sampling and not each and every minute details. A contemporaneous record is/being prepared only to ensure that the necessary formalities observed are noted in order, to act as an assurance for his actions. There is no provision which says that attestation by independent persons should be in the mahazar itself. There will be no violation of the provisions even if signatures of the independent witnesses are taken in Form VI notice or Form VII memorandum or some such document. Mahazar is not the only record evidencing observance of the formalities and giving assurance and corroboration to the actions of the Food Inspector. There will be the notice, the receipt issued by the seller, acknowledgment etc. Mahazar is not the only evidence on which the edifice of the' prosecution case is built up or rests. It is only a piece of evidence which gives credence to the prosecutions story. Major evidence is the report of the public analyst. In the above decision 1982 Ker LT 809 : 1983 Cri LJ 81 it was further held:
The attestation is of the acts of the Food Inspector. There cannot be such attestation of acts on a piece of blank paper or on a paper which has no relevance to what did take place when the sampling was done. It is for this reason that a contemporaneous record is made of what took place and that is attested by the witnesses called on to attest by affixing their signatures. Whether that is referred to as Mahazar or memorandum is immaterial. Though the Section does not in terras refer to preparation of a mahazar or a memorandum or minutes of what did take place attestation by the witnesses contemplated in Section 10(7) must necessarily be of a contemporaneous record. We see no logic in considering that Section 10(7) imposes an obligation on the Food Inspector to take the signature of such attestors in the notice to be issued by him under Section 11(1) or even on the packets in which the samples are placed. There is no harm in taking the . signatures on these. But it is not as if there is an obligation on him to do so. The witnesses need not sign on the voucher issued by the owner to the Food Inspector in token of having received the price for the goods taken for sampling. In fact the Act does not in terms speak about the passing of a voucher much less does it contemplate attestation on such a voucher by the witnesses. The signature is necessarily to be taken on such document as would evidence the fact that the witness was present at the time action was taken by the Food Inspector.
18. In this case the independent witness examined as PW1 is a relative of the respondent and naturally he turned hostile. But he also admitted the prosecution case to some extent. Further details were spoken to by the Food Inspector as PW2 and his peon as PW3. Sale to the Food Inspector is not disputed also. All other relevant documents were also produced and proved. The finding of the Magistrate that the mahazar cannot be looked into and the evidence of PWs 2 and 3 regarding observance of the formalities cannot be accepted in the absence of the backing of documentary evidence will have to be rejected.
19. The last contention is non-observance of the provisions of rules. I have already adverted to Section 10 (7) and Rule 7(3). Then the non-observance complained before me were Rules 14, 16(a) to (d), 17 (a) and (b) and 18. As PW2 the Food Inspector has spoken to observance of all the formalities enjoined by the provisions of the Act and Rules including Rules 14, 16(a) to (d), 17(a) and (b) and 18. The relevant documents were also proved by him. His evidence is corroborated by the testimony of his peon examined as PW3. Even though PW1 was cross-examined, it was not concerning observance of the above rules.
20. Before me it was argued that the observance of the formalities enjoined by the above rules were not specifically spoken to by the Food Inspector. It is true that minute details regarding observance of each and every rule has not been specifically spoken to by him. But the basic ingredients necessary for compliance of the rules were spoken to by him and the concerned documents were also proved by him. He was not at all asked whether any specific rule has not been complied with. Ext. P. 13 report of the public analyst shows that he received the sample properly sealed and fastened and the seal was found intact and unbroken. The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent to him and the sample was certified by him to have been in a condition fit for analysis. The public analyst was discharging an official duty. In the decision in Food Inspector v. Hameed reported in 1983 Ker LT 901 : 1983 Cri LJ NOC 224 it was said:
Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. But where he gives evidence only in a general way indicating the steps taken by him, but without specifically referring to the details, that cannot straightaway lead to acquittal of the accused. His evidence may be corroborated by the mahazar and the other evidence and supported by the contents of the report of the Public Analyst unless the same is challenged in cross-examination or in some other way known to law. Where the accused refrains from cross-examining the Food Inspector in regard to these details and fails to suggest either non-compliance with any particular detail of a rule or prejudice having been suffered by the accused, he certainly runs a risk. In the absence of any inhibiting factor it is open to the court to presume that the official act has been regularly performed where it is shown that the official act has been performed. It is also open to the accused to show that he has suffered prejudice on account of the action or inaction of the Food Inspector, in which case the Court is free to draw necessary inferences.
The principles laid down are applicable on all fours to the facts of the present case also. The presumption under Section 114(c) of the Evidence Act mentioned therein is also available in this case.
21. In Food Inspector, Cannanore Municipality v. C. Mohan 1981 FAJ 279 : 1980 Cri LJ 521 a Division Bench of this Court held:
6. The Sessions Judge has rightly observed that whatever was done in this case was to ensure to the best that the sample could not be changed. In this view of the matter I am of the opinion that even the second contention of the petitioner has no legs to stand on.
Irrespective of the question whether a provision is mandatory or not, in the absence of any evidence or circumstance creating suspicion in the mind of the court, when an official act is shown to have been performed, the court is entitled to presume that it has been regularly performed. In this case there is no such suspicious circumstance and all the official acts for the compliance of Rules 14, 16 (a) to (d), 17 (a) and (b) and 18 are proved by the evidence of PWs 2 and 3 and the documents proved by them. Apart from what I have stated the following facts also emerge from the evidence of PW2 and the documents proved by him. The provisions of Section 10 (7) has been fully complied with. The formalities in connection with purchase and sampling were properly observed even in minute details and there was no irregularity. Though strict compliance of Rule 7(3) is not in evidence on account of non-availability of the exact date on which the report was received by the Local Health Authority there are reasons to think that Rule 7(3) also must have been substantially followed. If at all there was delay it was only 3 or 4 days which did not in any way result in prejudice. PW2 said that samples were taken in clean dry bottles which were sufficiently closed and packed. This version is supported by Ext. P. 13 report of the public analyst. Compliance of Rule 14 is therefore clear. The observance of the compliance of Rule 16(a) to (d) was also generally spoken to by PW2 and supported by Ext. P. 13 report. PW2 has also spoken to the fact that copy of the memorandum and the specimen impression of the seal were separately sent to the public analyst with separate numbers marked. This is also supported by Ext. P 13. Compliance of Rule 17(b) was also spoken by him. Observance of Rule 18 was also spoken to by him and supported by Ext. P 13. Ext. P 5 is copy of form VI notice, Ext. P 5 (a) the acknowledgment given by the respondent in Ext. P 5 and Ext. P 6 is the receipt issued by him. These documents are not disputed. PW2 has stated that one sample and a memorandum in Form VII were sent in a sealed packet and remaining 2 parts with memoranda sent to* Local Health Authority. Ext. P 8 is copy of Form VII and Ext. P 9 is the specimen seal. Ext. P 7 is the railway receipt. Ext. P 10 is copy of the covering letter and Ext, P 11 is the acknowledgment. Copy of the covering letter to the Local Health Authority for having sent the 2 samples with 2 copies of the memoranda in Form VII is there and Ext. P 12(a) is the acknowledgment. The above evidence satisfies proof of observance of all the rules disputed by the respondent. Even though PW2 gave only vague evidence it is supported by all the relevant documents and confirmed by Ext. P 13. These items of evidence were not challenged in cross-examination and no such specific contention was taken before the trial court. The vagueness of the evidence of PW2, in the circumstances, cannot in any way help the respondent. If the respondent had a case that any rule has been violated he ought to have cross-examined PW2 and given him an opportunity to give the specific details in regard to matters disputed. By not doing so the respondent was running a risk. Further, a plea of prejudice is also not available. The attitude of keeping silent before the trial court and surprising the public the complainant by new contentions before the appellate court cannot be encouraged.
22. From what is stated above, it need not be understood that the Food Inspector is not bound to give evidence mentioning observance of all the formalities in detail. In order to maintain a successful prosecution, it is the duty of the Food Inspectors to prove compliance of the necessary formalities provided by the Act and Rules. It may always be advisable that the compliance of the relevant provisions are proved by the Food Inspector without waiting for contentions to be raised by the accused. What. 1 have stated is only that even if the evidence of the Food Inspector may be weighed in certain cases, the accused who has slept over his rights, cannot take advantage of the vagueness when the compliance of the provisions are otherwise established from the materials available in the case.
23. In State of Kerala v. Soman, 1983 Ker LT 297 : 1984 Cri LJ 567 Bhat, J. observed:
Ext. P 7 report shows that a copy of the memorandum and the specimen impression of the seal were separately sent by the Food Inspector and the Public Analyst found the same to bear the number mentioned in the Memorandum and the packet properly sealed and fastened with the seal intact and unbroken. These observations of the Public Analyst are made by him in the discharge of his duties under Rule 7 of the Rules. Ext. P 5 copy of the Form 7 Memorandum also mentions the sample taken, the number given, the name of the offender and other particulars, besides stating that copy of this memorandum and the specimen impression of the sea) used to seal the packet was being separately sent to the Public Analyst. The number of the sample as mentioned in these records tallied with the number mentioned in the mahazar and other documents. These items of evidence clearly show that all the provisions in Rule 18 had been complied with. The fact that the Food Inspector gave vague evidence about it or did not refer to this aspect of the matter does not take away the value of these items of evidence referred to. It is also significant to note that these items of evidence were not challenged during the cross-examination of PW. 1. No attempt was made by the defence to cite the Public Analyst as a witness to challenge the averments contained in his report. The particulars in the report of the Public Analyst in this regard and other evidence referred to can safely be acted upon.
The entire pronouncements are applicable to the case in hand also and all the formalities mentioned therein were proved in this case also. The contentions taken by the respondent for the first time before this Court are only vain attempts to see that somehow or other he is able to escape the clutches of law. The acquittal ordered by the Magistrate cannot stand. Ext. P 13 report shows that the edible common salt exposed for sale and sold by the respondent was adulterated. He is proved beyond doubt to have committed an offence punishable under Sections 16(1) (a)(i), 7(1) 2(n) (a) and (m) of the Prevention of Food Adulteration Act The judgment of the Magistrate is set aside and the respondent is convicted under these sections.
24. The only argument advanced was that the article did not conform to the standards due to reasons beyond his control namely nearness to the sea and the climatic condition at the time of sampling. Apart from the fact that they have no bearing on the question of sentence, they are not proved also The respondent is, therefore, sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/- in default of payment of which to undergo simple imprisonment for a further period of one month. The Magistrate will take steps to execute the sentence.