M.K. Shah, J.
1. The State has preferred this appeal from an order of acquittal passed in appeal by the learned Additional City Sessions Judge at Ahme-dabad in criminal appeal No. 31 of 1977, whereby he set aside the order of conviction and sentence passed by the learned Metropolitan Magistrate against respondent No. 1 that is the original accused who was tried for the offence under Section 16(1)(a)(iii) read with Section 7 of the Prevention of Food Adulteration Act ('the Act').
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6. Mr. Chhaya has raised several points concerning the question as to whether it would be incumbent on the Director, Central Food Laboratory or the Public analyst to positively mention the coal tar dye used so as to enable the Court to hold as to whether it was non-permitted coal tar dye or not. Mr. Shethna also made his submissions to controvert the position taken up by Mr., Chhaya in this connection. But in our opinion, in view of a further point raised by Mr. Shethna with regard to the breach of the mandatory provisions contained in Rule 16(c) of the Prevention of Food Adulteration Rules ('the Rules') it would not be necessary to go into the questions raised by Mr. Chhaya, as this appeal can be decided on the said point concerning the breach of Rule 16(c) of the Rules. Rule 16(c) provides thus:
(c) The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twine or 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 on the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender.
As pointed out by Mr. Shethana, in the instant case, the complainant food inspector who has given evidence and who has described all the formalities which he performed at the time when he took the samples, after stating that dividing the sample Ladu into three equal parts and placing them in card-board boxes and affixing paper bends and sealing it on four sides and after setting out the details and signing and after obtaining on the lable, as also on the paper bend the signatures of the panchas, he says that each of the three packets was kept in a blank brown paper in his presence by his peon, the ends were fixed by gum and after, fastening the thread, he made the writing thereon as per the inner label and the panchas signed thereon. He does not state that the twine or thread was so used that the paper cover was secured by seal both above and across the sample container, nor does he say that after fastening the thread on the paper cover by means of sealing wax, four distinct and clear impressions of the sale of his office were affixed nor does he state that one of such seals was at the top of the packet, one at the bottom and the other two on the body of the packet nor does he state that the knots of the twine or thread were covered by means of sealing wax bearing the impression of the seal of his office. It is, therefore, submitted that a breach of the mandatory provisions contained in Rule 16(c) has been committed in this case and the accused, therefore would be entitled to an order of acquittal,
7. A perusal of the provisions contained in Rule 16(b) and (c) does not leave any doubt that the object of the provisions is to see that the sample received for analysis is doubly secured which is, inter alia, with a view to prevent them from being tampered with in transit. On the report of the public analyst or the Director of the Central Food Laboratory, as the case may be, the fate of the accused hangs. It is, therefore, obligatory 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, because non-performance of the various obligations cast as per the rule to carry out double safeguards, may result in injustice to the accused. The language of the rule itself contains an indication that the rule is a mandatory one and is intended to provide a double safeguard in the manner of packing and sealing. The view that the said rule is mandatory has been expressed in clear terms in a decision of this court in Jethalal v. Baroda Municipal Corporation (1978) 19 Guj LR 448, and we respectfully agree with the same.
8. The next question, therefore, which would arise would be as to whether, in fact, there has been a breach of any of the provisions contained in the said rule. But before we take up the said question for consideration, we would deal with a point raised by Mr. Chhaya. Mr. Chhaya contended that this point about the breach of mandatory provisions of Rule 16(c) was never raised on behalf of the accused either before the trial court or before the lower appellate court and the accused therefore should not be permitted to raise this new point for the first time in an appeal before this court. Mr Chhaya. in this connection, relied or Enayat Ali Nazar Ali Bhori v. State of Maharashtra 78 Bom LR 293 : 1976 Cri LJ 1837. There the question arose in a revision application before the Bombay High Court and the following observations were made by the court, in this connection:
The question whether the samples were packed in accordance with the manner prescribed in Rule 16(c) of the Rules is a question of fact. It did not appear for the judgment of the trial Magistrate that any contention before him was raised about non-compliance with Clause (c) of Rule 16 of the Rules. It would not, therefore, be permissible at the revisional stage to allow the petitioner, accused to raise such a challenge.
In our opinion, different considerations would prevail when we are dealing with an appeal and not a revision. In appeal, this court would be perfectly entitled to go into questions of fact; while in revision, this scope would be very limited and that too in exceptional cases. Again, in the instant case, no new facts are to. be brought on record but the argument is based on the facts which are already on record. This Court has to deal with the facts and has to assess the evidence already on record in order to arrive at its conclusions, because it is dealing with an appeal, and the Bombay decision, therefore, does not help Mr. Chhaya.
9. The argument is based on the facts which are already on record and in that sense, the point raised is a point of law which depends on the interpretation, of Rule 16(c). If. as submitted by Mr. Shethna, a breach of a rule, mandatory in nature, is committed by the prosecution, then the accused would be entitled to an order of acquittal. The accused cannot be deprived of such a right at the appellate stage on the ground that he raised the point in this behalf for the first time before this court.
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12. Thus, the evidence of the complainant, read along with the evidence of his peon, shows that the mandatory requirements with regard to the sealing as earlier observed were broken and in that view of the matter, though for different reasons than the ones stated by the learned Judge of the lower appellate court, the accused would be entitled to be acquitted.
13. But Mr. Chhaya lastly relies on an unreported decision of the Supreme Court in Kassim Kunju Pookunju v. K. K. Ramakrishna Pillai, (Criminal Appeal No. 29 of 1968, decided on 2-12-1968 by the Supreme Court). This was a case where the challenge by the accused was that the specimen impressions of the seal had not been sent to the public analyst separately by post and that the public analyst had not compared the same with the seal on the packet of the sample. The report of the public analyst showed that the sample contained coal tar dye and was adulterated. The Kerala High Court negatived the contention based on violation of Rules 18 and 7 of the Rules. As observed by the Supreme Court in its judgment the High Court relied on the report of the public analyst Ex. P. 9, which was in Form III as prescribed by the Rules in which it was stated, inter alia, that the public analyst had received from the food inspector a sample of compounded mostly as affected for analysis, properly sealed and packed and that he had found the seal intact and unbroken. The Supreme Court then observed as follows:
The contention which was pressed and which has been reiterated before us is that it is nowhere stated in Ex. P-9 that the public analyst had compared the specimen impression of the seal with the seal on the packet of the sample. 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. The evidence of the food inspector together with the report of the public analyst showed that all the requirements of the rules had been satisfied. At, any rate, the question was one of accepting the evidence furnished by the prosecution on the point and the High Court having found on that evidence that the requirements of the Rules had been satisfied, there will be hardly any ground left on which this court can interfere
Relying on this decision, Mr. Chhaya urges that in the instant case also, a presumption should be raised that the complainant-food inspector must have done all the necessary formalities as are prescribed in Rule 16(c) of the Rules. We are unable to persuade ourselves to accept this contention of Mr. Chhaya. In the case before the Supreme Court, there was evidence of the food inspector, which showed that the specimen seal had been separately sent. Separate cover also sent the sample. The public analyst was not examined* but his report was there which, though it did not, in terms state that the specimen impressions of the seal separately received were compared with the seal on the packet of the sample, yet, the report was in form III which contained a statement in terms to the effect that the sample for analysis was received properly sealed and fastened and that the analyst found the seal intact and unbroken. It was in these circumstances that the Kerala High Court raised a resumption that the public analyst must have compared the specimen impressions with the seal sent separately. This was not a case in which the public analyst had stepped into the witness box and had given evidence with regard to the acts done by him when he received the sample for analysis and had omitted to state that he had compared the specimen impressions with the seal separately sent. Again, as is evident from the observations of the Supreme Court, the findings that the requirements of the rules had been satisfied were based on the evidence, of the food inspector together with the report of the public analyst. The evidence of the food inspector showed that he had sent the specimen impressions of the seal separately, as also the sample contained in the cover separately bearing the seal. The public analyst was not examined and, therefore, the Supreme Court did not find any error in the decision of the High Court which considered that it must be presumed that the public analyst acted in accordance with the rules and he must have compared the specimen impressions received by him with the seal on the container. We are unable to spell out from the decision any universal rule having been laid down by the Supreme Court, that such a presumption must be raised in all cases. The Supreme Court did not choose to interfere with the findings of the High Court in that particular case on the facts of that case and that is evidenced from the observations of the Supreme Court in the last few lines of the last para which may be repeated and which are as under:
At any rate, the question was one of accepting the evidence furnished by the prosecution on the point and the High Court having found on that evidence that the requirements of the rules had been satisfied, there will be hardly any ground left on which this court can interfere.
In the instant case, specific evidence has been led by the prosecution to show as to what formalities were performed at the time when the sample was taken by the food inspector. The formalities performed are elaborately mentioned by the food inspector as well as his peon Taj Mohmed. If the said formalities with regard to sealing etc. were observed, then any one of the witnesses, if not both of them, would have referred to the same and that leaves no doubt in our mind that these requirements with regard to the sealing in a particular manner as provided in Rule 16(c) were not observed. Leaving aside any conflict in their evidence and taking a cumulative effect of the evidence of both these witnesses, we find that the mandatory requirements of the rule with regard to the manner and method of the sealing has not been complied with and because of the violation of the mandatory provisions contained in Rule 16(c), we aro of the opinion that the accused is entitled to an order of acquittal.