1. The petitioner was the accused in C. C. No. 61 of 1977 of the court of the Chief Judicial Magistrate, Alleppey. The case against him was that he sold to the 2nd respondent, the Food Inspector, Alleppey, on 28-12-1976 at about 10 A. M. a sample of coffee powder which on analysis of the public analyst was found to be adulterated for the reason that the sample did not conform to the standard prescribed under the statute. The trial court found the petitioner guilty and sentenced him to undergo imprisonment for a period of six months and also to pay a fine of Rs. 1,000/-. On appeal the conviction and sentence were confirmed. Hence this revision.
2. The petitioner's counsel attempted to assail the judgment under revision on various grounds. A consideration of those grounds would? involve appreciation of evidence and reassessment of the same, I do not think it proper to enter into regions' of evidence which found favour with the courts below. In the absence of any illegality or irregularity committed by the courts below it will hot be proper to interfere with the judgment under revision. The evidence has been properly considered and - the court below has not committed any error in its approach to the facts and evidence.
3. However, the petitioner's counsel raised a new plea not taken by him before the courts below on which I feel he is entitled to succeed. Till 1-4-1976 a Food Inspector was obliged under the provisions of the Prevention of Food Adulteration Act and the Rules to hand over one sample, which he gets after dividing the food purchased by him into three parts, to the accused. This requirement has been taken away by the new Section 11 of the amending Act 34 of 1976, Under the amended section one of the parts has to be sent to the public analyst under intimation and the remaining two parts to the Local (Health Authority. The manner of dispatching containers of samples is detailed in Rule 17. The sample to be sent to the public analyst should have an outer cover also. The public analyst on receipt of a package containing a. sample for analysis shall compare the seals on the container and the outer cover with the specimen impression received separately and shall note the conditions of the seals thereon. This is provided in Rule 7. This is a clear departure from the old practice, which came into being with effect from 2-10-1976. The report of the public analyst has to be in Form No. III. The second para of the said report inserted by noti- fication dated 8-7-1968 reads as follows: 'The seal fixed on the container '(and the outer cover) of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis.'
4. From the new procedure it is evident that the accused is denied of the benefit of a sample which was till then given to him on detection of crime. This denial robs him of a valuable right. This is sought to be made good by the extra safeguard now made by the rule by insisting upon an outer cover, a separate seal for it and comparison of that seal with the specimen seal. If these requirements are not complied with, the. prosecution would be tainted with a legal infirmity, of which the accused can take justifiable advantage.
5. It is against this background that the report of the public analyst, Ext. P5 in this case, has to be considered. I have before me the report. It is in the old form. The second paragraph quoted above is as follows in Ext. P5:
The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis.
A mere reading of what is stated above indicates that there has been a clear violation of the new provision which came into being with effect from 2-10-1976. There is no whisper about the outer cover. The petitioner is thus well-founded in his submission that the prosecution has been rendered bad in law because of this violation.
6. The need for complying with the new direction was noticed by Narayana Pillai, J. in Crl. R. P. No. 74 of 1979 and this submission found favour with him. A violation of this mandate regarding the outer cover cannot be ignored or overlooked. It affects the right of the accused. It was for this reason that I permitted the petitioner's counsel to raise this question at the re-visional stage though not raised before.
7. I hold that the trial disregarding the correct procedure was bad. Consequently the conviction and sentence are also bad. I set aside the conviction and sentence against the petitioner and acquit him. The criminal revision petition is allowed. Fine paid, if any, will be refunded.