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Jethalal Lallubhai Vs. Baroda Muni. Corporation and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR448
AppellantJethalal Lallubhai
RespondentBaroda Muni. Corporation and anr.
Cases ReferredR.C. Pamnani v. State of Maharashtra
Excerpt:
.....clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the 'body of the packet. 5. clause (b) shows how the sample has to be packed and in the course of packing it provides for the bottle, jar or other container to be completely wrapped in fairly strong thick paper, and the ends of the paper to be neatly folded in and affixed by means of gum or other adhesive. this paper, covered packet, as the language of clause (c) shows, has to be 'further secured' by means of strong twine or thread both above and across the bottle, jar or other container. further security is provided by means of strong twine or thread, which in its turn requires to be sealed at the top, bottom and two sides, li is obvious, therefore, that..........firstly, the bottle, jar or the container by itself must be packed in a thick paper with its ends affixed by gum or other adhesive. further security is provided by means of strong twine or thread, which in its turn requires to be sealed at the top, bottom and two sides, li is obvious, therefore, that the two processes contemplated by clauses (b) and (c) of rule 16 must be carried out separately. if the result is sought to be achieved by a single process of affixing seal so as to cover the ends of the wrapper, the beneficent provisions of clause (b) are not complied with, because the rule making authority itself intended a sort of double fastening of the sample. it is, therefore, necessary in order to ensure-compliance with the mandatory provisions of rule 16 that the ends of the.....
Judgment:

D.P. Desai, J.

1. The petitioner came to be convicted under Section 161(1) (a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 (the Act) and sentenced to rigorous imprisonment for ,6 months and a fine of Rs. 1000/- with further rigorous imprisonment for 2 months in case of default, by the learned Judicial Magistrate, First class (Municipal), Baroda. His appeal against this order of conviction and sentence came to be dismissed. Hence this revision application.

2. According to the prosecution, on January 17, 1976 the Food Inspector visited the lodge run by the petitioner and found chillies powder lying in a tin. Therefore, after complying with the necessary formalities he took sample and divided it in three p Articles One of the bottles containing sample was sent to the Public Analyst and the report of the Public Analyst disclosed that the sample was adulteraled The defence of the accused that (his particular chillies powder was meant for personal consumption of the petitioner-accused .and not for the use in preparation of the food in the lodge did not succeed. However, one of the several contentions raised before the Sessions! Court 'was based on the nature and character of Rule 16 of the Prevention of Food Adulteration Rules, 1955 (the Rules). So far as compliance with the provisions of that Rule in the facts of this case was concerned it was an agreed position and a fact found by the learned Sessions Judge that the provisions of Clause (b) of Rule 16 which require folded ends of the wrapper containing the sample to be affixed by means of gum or other adhesive, were not separately complied with. The learned Sessions Judge, having recited agreed facts in paragraph 11. in terms stated as under:

With these facts, the learned Advocate for respondent No. I (i.e.. Municipal Corporation) has fairly conceded that there is non-compliance with Rule 16, to the extent that' the ends of the paper wrapper were not affixed by means of gum or other adhesive.

It was farther agreed; that the two seals at the top and bottom of the container or bottle were affixed in such a manner that ends of the paper wrapper were fully covered by those seals. However, the learned Judge thought it-fit to proceed on the basis that factually, the ends of the paper wrapper of the sample bottle have not been affixed by means of gum or other adhesive. The learned Judge was, however, of the view that there was no scope for a plea that any injustice has been caused or that there is any suspicious about the identity of the sample on account of non-compliance with the provisions of Rule 16. He was of the view that in the absence of the plea as to injustice being caused by noncompliance, inter alia with the provisions of Rule 16, will not entitled the, accused to an acquittal. For the proposition that apart from non-compliance with the provisions of Rule 16 it should further be demonstrated that the same resulted in injustice, the learned Sessions Judge relied upon a decision of the Supreme Court reported as R.C. Pamnani v. State of Maharashtra . In this connection, the le : 1975CriLJ254 arned Judge in paragraph 18 of his judgment stated as under:

The observations of the Supreme Court, as discussed above, show that mere infraction of the provisions of the Rules is not enough, but there should also be a plea and a conclusion that injustice has been caused.

I have gone through that decision; and I find no observation to the above effect. The only reference in this connection that we find is in paragraph 17 of the judgment and the relevant observations ate as under:

The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the statute.

3. The contention raised on behalf of the petitioner is that the provisions of Rule 16 are mandatory and that in all cases the provisions of Clauses (b) and (c) thereof should be separately complied with. Therefore, runs the argument, notwithstanding the finding oragreed position that wax seal were affixed on the bottom and top of the bottle, on the twine, cover and the ends of the paper wrapper, there is non-compliance with Clause (b) as distinct from Clause (c). It was urged that both the provisions of Clauses (b) and (c) are mandatory and they in fact provide for two distinct and separate safeguards so far as the manner of packing of samples is concerned. As against this, it was urged on behalf of the municipal Corporation that the provisions of Rule 16 are directory and not mandatory. On behalf of the State it was urged that the provisions of Rule 16(b) and (c) can be complied with by one process of applying wax seal because sealing wax is also an adhesive contemplated by Clause (b) of Rule 16. Therefore, in a given case if wax seal utilised for the purpose of Clause (c) also affixes the ends of the paper wrapper contemplated to be affixed by Clause (b), the provisions of both the clauses can be complied with by a single process. This contention was also urged on behalf of the Municipal Corporation.

4. The first question for determination is whether the provisions of Rule 16(b) and (c) are mandatory. There can be no difficulty on this joint. The object of these provisions is to see that the samples sent for 'analysis are doubly secured. This is, inter alia with a view to prevent their being tampered with during transit. It is obvious that an accused person can be convicted on the basis of the report of the Public Analysis to whom the sample in question is sent. Therefore, it is necessary in order to protect the interest of the accused to see that the sample sent for analysis is properly secured in order to prevent its being tampered with. The non-performance of the duty to carry out these double safeguard may result in injustice to the accused. The language of Clauses (b) and (c) of Rule 16 in itself shows that the Rule making authority intended to provide for a double safeguard in the manner of packing and sealing. These provisions read as under:

16. Manner of packing and sealing the samples;-All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely:

(a) ... ... ... ...(b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive;

(c) The paper cover shall be further secured by means of strong twine of thread both above and across the bottle, jar or other container, and the twine of thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the 'body of the packet. The knots of the Wine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender.

5. Clause (b) shows how the sample has to be packed and in the course of packing it provides for the bottle, jar or other container to be completely wrapped in fairly strong thick paper, and the ends of the paper to be neatly folded in and affixed by means of gum or other adhesive. This packing must be complete by itself and can be completed by affixing ends of paper by means of gum or other adjective. It is by this process of packing that we get a packet containing the sample. This paper, covered packet, as the language of Clause (c) shows, has to be 'further secured' by means of strong twine or thread both above and across the bottle, jar or other container. Thus the language of Clause (c) itself shows that the Rule making authority provided for a double safeguard in the manner of packings Firstly, the bottle, jar or the container by itself must be packed in a thick paper with its ends affixed by gum or other adhesive. Further security is provided by means of strong twine or thread, which in its turn requires to be sealed at the top, bottom and two sides, li is obvious, therefore, that the two processes contemplated by Clauses (b) and (c) of Rule 16 must be carried out separately. If the result is sought to be achieved by a single process of affixing seal so as to cover the ends of the wrapper, the beneficent provisions of Clause (b) are not complied with, because the Rule making authority itself intended a sort of double fastening of the sample. It is, therefore, necessary in order to ensure-compliance with the mandatory provisions of Rule 16 that the ends of the paper wrapper must be affixed by means of gum or other adhesive apart from the use of wax seal contemplated by Clause (c) which has essentially to be used on the twine or thread and not necessarily on the ends of the paper wrapper. The non-compliance with this manner of packing which is mandatory, must lead to the whole process of getting the sample examined, being vitiated in law. The provisions of Rule 16 are of a substantial nature as they have a direct impact on the proof of guilt or otherwise of the accused. Therefore, they must be strictly complied with. The Court has, in such a case, not to see whether injustice or prejudice has been caused to the accused. The provisions impinge upon the guilt of the accused; and non-compliance with the requirements of Rule 16 must result in an acquittal. Thus, the two contentions advanced on behalf of the Municipal Corporation and the State as regards the nature of Rule 16 and the scope of non-compliance with the provisions of Clauses (b) and (c) thereof cannot be accepted. On this sole ground, the petitioner is entitled to an acquittal in the present case. I need not, therefore, consider the further question as regards mandatory character of Rule 17 which was also raised before the lower appellate Court.

6. In the result, the petition succeeds and is allowed. The order of conviction and sentence passed against the petitioner are set aside. The petitioner is acquitted of the offences of which he was convicted. Fine, if paid, should be refunded to the petitioner. Rule made absolute in these terms. Bail bonds of the petitioner shall stand cancelled.


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