P. Janaki Amma, J.
1. The Food Inspector, Tellicherry Municipality, who was the complainant in S.T.C No. 297 of 1978 on the file of the Additional Judicial First Class Magistrate, Tellicherry, is the appellant in Criminal Appeal No. 444 of 1979. The first accused in that case is the petitioner in Crl. R. P. No. 429 of 1979.
2. The facts of the case are as follows: The second accused is the licensee in res-pect of the Jubilee Dairy in Jubilee Market. Tellicherry, having licence No. 9/G10. The first accused was the salesman in that concern during the relevant period. On 16-12-1976 PW-1 Food Inspector visited the above shop and purchased 675 ml. of toned milk exhibited for sale, after following the formalities prescribed under the Act and on payment of the price thereof. He divided the sample purchased into three equal, parts poured them into three bottles, added formaline and sealed the sample bottles in the presence of witnesses. A mahazar Ext, P3 was prepared. After due packing and sealing one of the sample bottles was sent to the public analyst along with a copy of Form No. VII memorandum and a specimen seal. The remaining two portions of the sample were sent to the Local (Health) Authority. The public analyst issued Ext. P6 certificate in Form No. III. Copies of the certificate were sent to the two accused as prescribed under the rules. Based on the report of the public analyst, a complaint was filed against the two accused.
3. The complainant examined himself as PW-1 and also PW-2 an attestor to the mahazar. Though a case was put forward that the second accused was not running the business the trial Court did not accept the contention. The Court found both the accused guilty, convicted them for offences punishable Under Sections 2(1)(a)(m), 7(i) and (v) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (for short the Act). Both the accused were sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1000. In default of payment of fine they are to undergo simple imprisonment for one month. The two accused preferred Criminal Appeal No. 90 of 1979 against the conviction and sentence. The Sessions Judge, Tellicherry, upheld the conviction and sentence in respect of the first accused, but set aside the conviction and sentence in respect of the second accused. It is against the order of the Appellate Judge that the appeal and the revision petition have been filed.
4. The conviction of the first accused is being challenged in the revision petition on various grounds. If that petition is to be allowed the benefit will automatically be available to the second accused. I shall therefore first dispose of Crl. R. P. No. 429 of 1979. The purchase of the sample is amply proved by the evidence of PWs. 1 and 2. Both the trial Court and the Appellate Court accepted their testimony. The petitioner would contend that the Food Inspector failed to follow the formalities prescribed under the Act, that he has been prejudiced on account of the omission and that therefore his conviction and sentence are liable to be set aside.
5. In the first place it was contended that there has been non-compliance of Rules 7 and 17 of the Rules framed under the Act. Rule 17 deals with the manner of despatching containers of samples. It is directed therein that the sealed container of one part of the sample for analysis and the memorandum in Form No. VII should be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means. Rule 7 deals with duties of public analyst. Under Sub-rule (1) thereof, on receipt of a package containing a sample for analysis from a Food Inspector or any other person the Public Analyst or an Officer authorised by him should compare the seals on the container and the outer cover with specimen impression received separately and should note the condition of the seals thereon. Under Sub-rule (3) the public analyst should within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form No- III. Form No. Ill includes a statement to the effect that the sample for analysis was properly sealed and fastened and that the seal was found intact and unbroken and also that 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.
6. Ext. P6 in the instant case stated-
I hereby certify that I, K. U. Mathai, Public Analyst for the Government of Kerala duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954, received on the Eighteenth day of December 1976 from the Food Inspector, Tellicherry Municipality, Tellicherry, a sample of Toned Milk, marked No. 483 for analysis, properly sealed and fastened, and that I found the seal intact and unbroken. 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-
I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows:
In other words, Ext. P6 did not contain the certificate to the effect that the seal fixed on the outer cover tallied with the specimen seal. This omission is relied upon by the petitioner as an irregularity which has vitiated the proceedings.
7. It is noted that even though Rule 7 directs that the Public Analyst should compare the seals on the container and the outer cover Form No. Ill did not originally contain the clause relating to comparing of the seal on the container with the specimen seal. It merely referred a statement that the samples were properly sealed and fastened and that the seal was intact and unbroken. There was divergence of views among the High Courts as to whether the certificate of the Public Analyst should state that the seals on the packet and the specimen seal were compared. The view taken by this Court in Subbayyan v. State : AIR1963Ker330 was that since Form No. Ill as it stood then did not prescribe that the Public Analyst should specifically mention about comparison of seals on the container and the specimen seal, non mention of that fact in the certificate was not irregularity. The Supreme Court had to consider this aspect in K. K. Pookunju v. K. K. Ramakrishna Pillai, 1969 Ker LT 50. The Supreme Court observed:
The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under Rule 7 the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container.
We do not find any error in the decision of the High Court on the above point.
While the above controversy was in vogue Form No- III was amended on 8-7-1968 adding a clause that 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. The form was further amended with effect from 2-10-1976 adding the words 'and the outer cover' after the words 'container'. Form No. Ill as stood on the taking of the sample in the present case contained the clause-
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.
It has to be noted that important changes have been made under Act 34 of 1976 with regard to the procedure to be followed by the Food Inspector after the sample is taken. The practice of delivery of one portion of the sample to the person from whom the sample is taken has been discontinued. Instead the two specimen samples are to be kept by the Local (Health) Authority. In the circumstances it is highly necessary that the accused should be assured of the regularity of the procedure followed by the Food Inspector in sending the sample-The effect of the changes in Form No. III has to be considered in the background of the amendment of the Act and also the divergence of views that existed among the High Courts as to the contents of Form No. III as it originally stood. It has to be borne in mind that in the absence of the evidence of the Public Analyst the certificate in Form No. III is the sole evidence on which a decision as to whether the article was adulterated should rest. That is a strong indicator to show that the certificate should conform to the provisions of the statute. In the background of the history of the legislation it has to be held that by the addition in Form No. Ill of the clause relating to comparison of seals on the container as also outer cover the rule-making authority intended to make the provision mandatory. In other words the Court should insist on strict compliance of the provision. Khalid, J. has held in Jose v. Food Inspector, 1981 Ker LT 859, that non-compliance of the provision taints the entire prosecution with illegality. For reasons already mentioned. I respectfully agree with the said view. It follows that no conviction can be entered on the basis of Ext. P6 which does not conform to the requirements of law.
8. In the light of the above conclusion the further contention raised that there has been non-compliance of Section 13(2) does not arise for consideration. I may however state that Ext. P7 notices and Ext. P8 acknowledgments make out that there has been compliance of Section 13(2). However, in the absence of mention in Ext. P6 that the public analyst compared the seals of the outer cover with the specimen seal, the conviction and sentence of the first accused have to be set aside.
I therefore allow Crl. R. P. No. 429 of 1979, set aside the conviction and sentence as against the first accused and acquit him.
It follows that there are no sufficient reasons for interfering with the order ' acquitting the second accused. Criminal Appeal No, 444 of 1979 is therefore dismissed.