V. Khalid, J.
1. Against the judgment of the Additional First Class Magistrate's Court, Ottappalam, in C.C. No. 85 of 1971, a case under the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act, the Food Inspector, Mannarghat, has come up in appeal as the accused therein was acquitted. P. W. 1, the Food Inspector, purchased 300 grams of coffee powder on 20-7-1971 from the accused which, on analysis was found to be adulterated and hence the prosecution.
2. The only question that falls for consideration in this case is the construction of Rule 22-A of the rules framed under the Act. The case of the accused is that the coffee powder purchased by P. W. 1 which Was in three packets, each containing 100 grams, was not mixed together when it was sent for analysis and hence the result of the analysis cannot be acted upon.
3. The learned Magistrate held relying on that the sampling was not proper and hence acquitted the accused. The need for mixing up the three packets, according to him, is to ensure check and counter-check so that the interests of the accused will not suffer. It is this finding that is the subject-matter of attack by the appellant, the Food Inspector.
4. In the case noted above a single Judge of the Punjab High Court held:
The whole idea of prescribing the elaborate method of taking and dividing up the sample is to have a check and counter check on the report of the public analyst and the clear intention is that if the sample of food taken is from a bulk supply the quantity taken must be sufficient to be divided into three sufficient portions for the proper quantity to be sent to the public analyst in accordance with the provisions of Rule 22. The sample to be given to the accused is solely for his own protection, and obviously is intended to enable him to have it analysed privately for the purpose of producing evidence at the trial, if necessary, to contradict the report of the public analyst. The third sample is kept in reserve for the matter to be decided by the Director of Central Food Laboratory in case either party in prosecution is not satisfied with the report of the public analyst. In these circumstances it is of the utmost importance to ensure that the three samples are of uniform quality. Otherwise, the whole value of the check and counter check is completely lost.
5. The law as enunciated in this decision perhaps, persuaded the Government to enact a new rule, namely, Rule 22-A which lays down as follows:
22-A. Contents of one or more similar waled containers having identical labels to constitute the quantity of a food sample:- Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample.
According to this rule, the necessity for mixing can be avoided if two conditions are satisfied. The food sold should be in sealed containers and they should have identical label declarations.
6. The learned Magistrate observes that the ruling reported above is directly applicable to the facts of the case. He also observes that it is to ensure uniformity in quantity and quality that the mixing of the contents is insisted upon. It is obvious that the lower Court failed to consider the applicability of Rule 22-A. Perhaps the rule escaped his notice. If the sampling is in accordance with Rule 22-A, the acquittal has to be set aside.
7. It was contended by the learned Counsel for the appellant that the packet has to be deemed to be a sealed container. The rule, according to him, only requires that the container should be satisfactorily closed. The learned Counsel for the respondent on the other hand submits that there should be strict conformity with the rule and in the absence of such conformity the benefit should go to the accused.
8. In the mahazar P4 the only detail given is that the coffee was taken from three packets and that they were sent for sampling. But when the Food Inspector was examined in Court, he took care to depose that the three packets had identical label declaration and thus satisfied one of the requirements of Rule 22-A. However, no evidence was adduced by the Food Inspector to show that the coffee was in 'sealed containers' or that the packets were sealed. The learned Counsel for the respondent urged that in the absence of this evidence the acquittal has to stand.
9. There was some argument about the exact meaning of the words 'sealed container'. 'Sealed container' has not been defined in the Act, while the word 'package is defined in Section 2 (x) as follows:
(x) 'package' means a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed.
In the Stroud's Judicial Dictionary Third Edition, at page 2683, the meaning given to the word 'sealed' is, 'secured with any substance without the destruction of which the cork, plug or stopper cannot be withdrawn.' In the Shorter Oxford English Dictionary, the expression 'sealed container' is said to mean 'a container which is so closed that access (to its contents) is impossible without breaking the fastening.
10. In Commr. of Sales Tax v. G. G. Industries, (1968) 21 STC 63 (SC), the Supreme Court had occasion to consider the effect of the expression 'sealed containers'in the context of a case under the Sales Tax Act. In that case the Supreme Court was considering the effect of Section 4 of the U. P. Sales Tax Act, 1948, which exempted from sales-tax 'dealers in cooked food (other than cooked food sold in sealed containers) including sweetmeats and other confectionary'. It was contended by the assessee in that case that the packets in which he sold cooked food cannot be considered as sealed containers and therefore he was entitled to exemption. The Supreme Court repelled the contention and held that the packets sold by the assessee fell within the expression 'sealed containers'. In the absence of fuller details of the packets in that case, it will not be safe to apply that decision to this case. Moreover, the facts are different also. If the meaning given to the expression 'sealed container' in the Shorter Oxford English Dictionary, namely, 'a container which is so closed that access (to its contents) is impossible without breaking the fastening' is to be accepted, then there should be clear evidence in the case to show that the coffee powder was packed in such containers, P. W. 1 has not deposed to the fact that the containers were sealed. All that, he has deposed is that the coffee was packed in separate packets. This cannot be taken to mean that the coffee powder was packed in 'sealed containers' as contemplated under Rule 22-A.
This is an appeal against acquittal. The innocence of the accused is reinforced by his acquittal and unless the prosecution succeeds satisfactorily to bring the case within Rule 22-A it will not be proper to find the accused guilty. I don't think in these circumstances I will be justified in disturbing the order of acquittal entered against the accused by construing the expression 'packet' as 'sealed container'. The learned Public Prosecutor contended that these packets should be taken as 'closed containers' which, according to him, is synonymous with 'sealed containers'. Even if this contention is to be accepted there is no evidence in this case that the packets were closed so that access to it was not possible without breaking. As-cording to me the words 'sealed containers' have a distinct connotation. I do not also think the words 'closed containers' are synonymous with 'sealed containers'. All sealed containers are closed containers, but the contrary need not be so. The rule-making authority has deliberately used the word 'sealed containers' with a particular purpose and the accused is legitimately entitled to seek the protection of Court when the prosecution has failed to bring the case within Rule 22-A. I therefore hold that the prosecution has not proved its case beyond reasonable doubt.
In the result, the criminal appeal is dismissed