J.P. Desai, J.
1. Petitioner No. 1 (original accused No. 1) Mansingh Chhajuram Yadav owns a shop at Nadiad. He is dealing in milk, curd etc. Petitioner No. 2 (original accused No. 2) Kundankumar Chiranjilal Yadav was serving with petitioner No. 1. On 28-9-1978 at about 4-45 P.M. Jagdishchandra Barot, Food Inspector of Nadiad Municipality went to the said shop. Accused No. 2 was present at the shop at that time. The Food Inspector purchased about 600 grams of curd from accused No. 2 and collected the same in a vessel and divided the same in three parts and sealed the three parts as per the procedure laid down in the Act as well as in the rules. Accused No. 1 was not present at the shop at the time the sample was taken. One of the three samples was sent to the Public Analyst who on analysis found that it was adulterated, in that it contained excess water by 13% and that way did not conform; to the standards required by the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as 'the Act') as also the provisions of the Prevention of Food Adulteration Rules, 1955 (hereinafter to be referred to as 'the Rules'). On receipt of this report of the Public Analyst, complaint was filed by the Food Inspector against these two accused for an offence punishable under Section 7(i)(v) read with Section 16(i)(a)(i) on 21-11-1978. After filing the complaint, a copy of the report of the Public Analyst was forwarded along with a joint notice to both the accused by registered post as required by the relevant provisions of the Act and the Rules. Copy of the said notice is at Ex. 19 of the record of the trial Court. The same was sent at the address of accused No. 1 but the postal acknowledgement. Ex. 18 shows that the letter was addressed to accused No. 2 and the same was received by accused No. 2. Admittedly, no such notice' nor copy of the report of the Public Analyst was sent to accused No. 1. The copy of the report of the Public Analyst was sent to accused No. 2 on 28-11-1978 and it was received by accused No. 2 on 30-11-1978. Accused No. 2 did not make any application to the trial Court for sending the sample to the Central Food Laboratory but accused No. 1 on 30-3-1979 submitted an application at Ex. 23 requesting the trial Court to send the sample to the Central Food Laboratory. The trial Court rejected the said application observing that the copy of the report of the Public Analyst was required to be sent only to accused No. 2 from whom the sample was collected and was not required to be sent to accused No. 1. The matter was carried in revision before the Court of Sessions at Nadiad and the learned Sessions Judge also agreed with the view taken by the learned Judicial Magistrate and dismissed the revision application, being Criminal Revision Application No. 89 of 1979. Thereafter, the trial Court proceeded with the matter and the learned Judicial Magistrate, on appreciating the evidence recorded before him, held both the accused guilty and convicted both of them of the offences with which they were charged. He sentenced them to imprisonment and fine. The matter was carried in appeal before the Court of Sessions at Nadiad. The learned Additional Sessions Judge who heard the appeal dismissed the appeal, being Criminal Appeal No. 20 of 1980. Being dissatisfied with the same the original accused have filed this Revision Petition before this Court.
2. The learned advocate Mr. D. F. Amin who appears for Mr. B. K. Amin for the petitioners raised the following contentions before me:
(1) Copy of the report of the Public Analyst was required to be sent to accused No. 1 also and that having not been done, the prosecution must fail.
(2) The sample was not sent to the Central Food Laboratory inspite of the request made by accused No. 1 and, therefore, also the prosecution must fail.
(3) There was no churning or homogenizing of the curd after it was collected before it was divided into three parts and that also vitiates the analysis.
(4) There is no evidence on record to show that the pot in which the curd was initially collected from accused No. 2 was clean and dry as required by the rules.
3. Section 13(2) which is relevant for our purpose reads as follows:
On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been. disclosed under Section 14A, forward, in such manner as may be prescribed a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
Literal interpretation of Section 13(2), of course, shows that a copy of the report is to be sent to the person from whom the sample, is collected and also to those persons whose names might have been disclosed under Section 14A of the Act. We are not concerned with that part of Section 13(2) in the present case. The question is whether when the sample was taken from accused No. 2, copy of the report of the Public Analyst was also required to be sent to accused No. 1 who was physically not present when the sample was taken. Now, accused No. 1 is the owner of the shop. He is sought to be made constructively liable for the offence on the strength of the report of the Public Analyst. It is difficult to imagine that the Legislature intended that person or persons not physically present at the time the sample was collected should be constructively held liable on the strength of the report of the Public Analyst without giving such person or persons an opportunity of having a report, from the Central Food Laboratory, which opportunity could be availed of only if copy is supplied to such person or persons. The Legislature could not have intended to discriminate between the person actually present, at the time the sample is collected, on the one hand and the person or persons not physically present at the time the sample is collected, on the other. We may also look at this question from another angle. The owner of the shop is accused No. 1. He is deemed to be in constructive possession of the shop as well as of the articles which are kept in the shop. Hence even though sample was actually collected from accused No. 2, it should be deemed to have been collected from both the accused because accused No. 1 can be said to be constructively in possession of the shop and the articles lying in the shop as owner of the shop. It is difficult to agree with the interpretation put by the Courts below to Section 13(2) and say that copy of the report is required to be sent only to the person from whose actual possession the sample is collected and not to the owner or other persons who are sought to be made liable constructively. It is also pertinent to note that in the notice which is sent in the present case the names of both the accused are mentioned, while the postal acknowledgement shows that on the envelope the name of accused No. 2 was shown as the person to whom the letter was addressed stating therein that it was sent to him as a person selling the curd for accused No. 1. The postal acknowledgement shows that the letter was actually received by accused No. 2. The fact that two names were mentioned in this notice shows that it was intended to be sent to both the accused and not only to accused No. 2. A joint notice may not be illegal, but then copy of that notice is to be sent to each accused. Sending a joint notice to one of them will not be sufficient notice to the other in law. The learned Additional Public Prosecutor Mr. S.R. Divetia was unable to satisfy me that such a notice will fulfil the requirements of Section 13(2) of the Act. He was not in a position to satisfy me how the view taken by the Courts below can be supported. Mr. Divetia, of course, submitted that the notice was addressed to both and it was received by accused No. 2, servant of accused No. 1 and therefore, we can safely presume that accused No. 2 must have shown that notice and the report to accused No. 1. Now, assuming that accused No. 2 had shown the report to accused No. 1, that will not be sufficient compliance in law. The prosecution must therefore, fail on this ground alone. It must fail not only against accused No. 1 to whom copy of the report of the Public Analyst was not supplied but also against the other accused, viz. accused No. 2 even though he did not avail of the opportunity of having a report from the Central Food Laboratory which opportunity was available to him as copy of the report of the Public Analyst was supplied to him. It can be said that if copy was supplied to accused No. 1 and he had requested the Court to send the sample to the Central Food Laboratory and if the report had disclosed that there was no adulteration, then both the accused would have got the benefit of that report as the said report would be final superseding the report of the Public Analyst. It cannot be said in that case that benefit would be available only to the accused who had availed of the opportunity of getting the sample analysed by the Central Food Laboratory because the report of the Central Food Laboratory has been made final superseding that of the Public Analyst. It therefore, follows that when there is a breach of Section 13 qua even one of the accused, the others will also be entitled to get benefit of the same notwithstanding that they had opportunity of getting a report from the Central Food Laboratory, which opportunity they did not avail of.
4. Before going to the other point, I would like to mention here that in the present case, even though copy of the report was not supplied to accused No. 1 accused No. 1 submitted the application at Ex. 23 on 30-3-1979 requesting the Court to send the sample to the Central Food Laboratory. This request of the accused was rejected by the trial Court and the said decision of the trial Court was confirmed in revision by the learned Sessions Judge. Assuming that notice was not required to be separately sent to accused No. 1 then also it cannot be gainsaid that accused No. 1 had a right to request the trial Court to send the sample to the Central Food Laboratory for analysis because the report of the Public Analyst was to be used against him. Simply because the request vide Ex. 23 was not made within a period of ten days, it could not have been rejected. I fail to understand why the learned Magistrate refused to accept the request made vide Ex. 23 and why the learned Sessions Judge, with respect to him, agreed with the view taken by the learned Judicial Magistrate and rejected the Revision Application. The trial Court should have sent the sample to the Central Food Laboratory when such a request was made to him, vide Ex. 23 even if he was inclined to take the view that copy was not required to be supplied to him. If the request of accused No. 1 was granted by the Court and report of the Central Food Laboratory was received showing that the article was adulterated, then it would not have been to accused No. 1 to make a grievence that copy of the report of the Public Analyst was not supplied to him, he having availed of the opportunity of getting the sample analysed by the Central Food Laboratory. If the Central Food Laboratory had reported that the sample was not fit for analysis because of lapse of time, then different considerations would arise. If a copy is supplied to an accused 'as required by Section 13 and still he does not apply in time but applies so much late that the sample is not found to be fit for analysis on account of lapse of time, then he has to thank himself. But the Court should not refuse to send the sample for analysis simply because request is made after ten days. In the present case, of course, the position would have been different because accused No. 1 was not supplied copy of the report of the Public Analyst at all. But anyway in my opinion the learned Judicial Magistrate committed a grave error in refusing to grant the request made vide Ex. 23 and the learned Sessions Judge also, with respect to him, fell into the same error. For ought we know, the sample might have been found to be fit for analysis and the report might have revealed that the sample was not upto the standard prescribed and the accused might not have been able to escape on the ground that copy was not supplied to him.
5. Now, so far as the contention about non-churning or non-homogenizing the curd after being collected in the pot by the Food inspector is concerned, it is pertinent to note that the Food Inspector has given evidence in details as to what he did at the time of collecting the sample. He has given description of what he did in minute details but he has not stated that after collecting the sample, he churned or homogenized the same. It is true that there is nothing in the Act or the Rules which prescribes churning or homogenizing, but in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis and for this purpose, churning is one of the methods of making the sample homogeneous and representative. When this does not appear to have been done, it cannot be said that the sample which was sent to the Public Analyst was representative of the whole quantity of curd collected by the Food Inspector. In the case of Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma 0065/1982 : 1983CriLJ337 , the Supreme Court did not agree with the view expressed by this Court that the churning is required to be done by some instrument or that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative. The Supreme Court, however, did say that churning either by instrument or by hand must be such that the sample becomes homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. The Supreme Court observed that there has to be a finding in a given case that the churning done with hand was not adequate, and only then that the Court can arrive at the conclusion that the sample was not homogeneous and representative. In the present case, there is no evidence whatsoever about churning or making any attempt to homogenise the sample and, therefore, the report of the Public Analyst cannot furnish reliable proof of nature and content of the curd.
6. The Food Inspector has, as 1 stated earlier, described the procedure followed by him at the time of collecting the sample in minute details and has not stated as to in which pot he collected the sample. He has not stated that he ascertained that the pot in which he collected the sample was dry and clean, This circumstance also goes against the prosecution.
The discussion made above will go to show that the prosecution must fail for the following reasons:
(1) Copy of the report of the Public Analyst was not supplied to accused No. 1.
(2) The sample was not sent to the Central Food Laboratory even though a request was made by accused No. 1 vide Ex. 23.
(3) There is nothing to show in which pot the sample was collected by the Food Inspector or that the said pot was clean and dry.
(4) There is no evidence to show that the curd was either churned or any effort was made to homogenize the same so as to make it truly representative of the sample, so as to make the analysis such as can furnish reliable proof of nature and content of the sample.
7. The Revision Application is, therefore, allowed, the order of conviction and sentence recorded by the trial Court and confirmed by the Court in appeal is hereby set aside and the petitioners-original accused are hereby acquitted of the offences of which they are convicted by the trial Court. Their bailbonds are hereby cancelled and fine, if paid by them, is ordered to be refunded to them. Rule is made absolute.