G.M. Lodha, J.
1. This is an appeal by Municipal Council, Alwar against the judgment of Chief Judicial Magistrate, Alwar in criminal case No. 18/257/74 acquitting the respondent for offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954.
2. The prosecution case is that on 11-6-1972 Food Inspector Hanuman Modi inspected the shop of accused in Munshi Bazar. He suspected adulteration in chillies and took samples. These samples were put in three bottles and sealed. One bottle was given to the accused and was sent for public analysis. According to the report of Public Analyst Ex. P. 3 it was found that the chillies were adulterated.
3. In support of the case the prosecution examined P. W. 1 Hanuman Modi and P. W. 2 Omprakash and P. W. 3 Kuldeep Kumar. The accused denied the taking of the sample and produced D. W. 1 Bhagwan Das and D. W. 2 Yograi Dixit. The trial court considered the evidence produced by the parties and found that the sample was taken from the accused. It was also found that Omprakash and Kuldeep Kumar were hostile witnesses. On ulterior discussion of the entire evidence a finding was given that even though the two witnesses P. W. 2 and P. W. 3 have become hostile, but they have admitted that the sample was taken although they cannot say what was the material. Relying upon the statement of the Food Inspector, the trial court held that a sample of chillies was taken from the accused.
4. However, the trial Court was of the opinion that there has been non-compliance of Rule 14 of the Prevention of Food Adulteration Rules, 1955 inasmuch as the Food Inspector has failed to show that the bottles. in which the samples were taken, were clean and dry. It was held that it was the duty of the prosecution to prove it and as it failed to prove it, the accused is entitled to acquittal. The trial court also held that there has been non-compliance of Rule 16(b) of the Rules.
5. The Municipal Council has filed this appeal. The main ground of the appellant is that a presumption should be drawn that the bottles were clean because P. W. Hanuman Modi, Food Inspector was not cross-examined on this point. The plea of the appellant is that the presumption should be made under Section 114 of the Evidence Act that all official acts were done properly and regularly and in accordance with law. The appellant's case is that it was nobody's case that the sample was not taken in clean bottles and the report of the Public Analyst was prejudicially affected on that count.
6. In Municipal Council, Sri Ganganagar v. Naresh Kumar 1979 2 FAC 121 (Raj), this Court has held as under:
A. Prevention of Food Adulteration Rules, 1955 - Rule 14 - Compliance of - Mandatory - no evidence that the bottles in which the samples were taken were clean - from the statement of the Food Inspector it is not proved that the sample was put into clean dry bottles for purposes of analysis. It was the duty of the prosecution to prove the compliance of Rule 14 and it was not necessary for the accused to fill in the lacuna left by the prosecution in the statement of the Food Inspector by putting any question in cross-examination the bottles need not only be clean but should also be dry. Moreover, as observed in the aforesaid case, there should be proof that the sample was poured in clean dry bottles. Veersingh's statement does not satisfy the requirement of Rule 14 and as such on this basis the acquittal of the respondent cannot be set aside.
7. Again in The State v. Mohammad Ibrahim (1979) 2 FAC 353 : 1959 Crj LJ 1323, the Kerala High Court has observed as under:
This is a case where the Food Inspector acted in flagrant violation of the provisions of the Act, even if this is to be treated as an irregularity it cannot be said that the respondent was not pre-judiced by the omission of the Food Inspector to act in accordance with law. Rule 14 provides that samples for analysis should be taken in clean dry bottles or jars or other suitable containers. It was admitted by the Food Inspector that the bottles in which he took the samples were not clean. Action appears to have been taken by the Food Inspector in a very slipshod manner. His version that two persons could not be procured as witnesses was not accepted by the learned District Magistrate. No interference is called for in the circumstances.
8. Mr. Goyal confronted with the above decisions pointed out that in both the above decisions the principles laid down by the Apex Court in State of Kerala v. Alasserry Mohammed : 1978CriLJ925 and Kassim Kunju Pookuniu v. K.K. Ramakirhana Pillai 1969 Cri App R (SC) 15, have not been taken note of and, therefore, they cannot provide any good guidance to this Court. Mr. Goyal referred to the decision of Kassim Kunju's case 1969 Cri App R (SC) 15, wherein the following principles were laid down by the Hon'ble Supreme Court.
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.
8A. In the above case the important point canvassed before the Hon'ble Supreme Court was that the rule contemplated that specimen impression of the seal used should be compared with the seal found on the container. It was argued that in Ex. P. 9 report of Public Analyst it was nowhere mentioned that the Public Analyst compared the specimen impression of the seal with the seal on the packet of the sample. The Hon'ble Supreme Court repelled the submission on the ground that all official acts must be presumed to have been regularly performed and as according to Rule 7, the Public Analyst is required to compare the seal on the container and the outer cover with the specimen impression received separately, On the receipt of the packet containing the sample for the analysis it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen seal received by him with the seal on the container.
9. In Alasstry Mohammed's case 1978 Cri LJ 925, their Lordships of the Supreme Court observed as under:
Rule 22 is directory and not mandatory. Applying the salutary principles of interpretation of statutes, the use of the word 'shall' in Sub-section (3) of Section 11 and in Rule 22 indicates on its face that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed Rules. But the mere use of the word 'shall' does not invariably lead to this result. The whole purpose and the context of the provisions have to be kept in view for deciding the issue. The whole object of Section 11 and Rule 22 is to find out by a correct analysis, subject to further verifications and tests by the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not. If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, then merely because the quantity sent was not in strict compliance with the Rules will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If he finds it insufficient, there is an end of the matter. If, however, he finds it sufficient, but due to one reason or the other, either because of further tests or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt, the case may fall. In other words, if the object is frustrated by the sending of the short Quantity by the Food Inspector to the Public Analyst, it is obvious, that the case may end in acquittal. But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt then it will endanger public health to acquit offenders upon technical grounds which have no substance. The fact that the Rule is directory and not mandatory does not, however, mean that it is open to the Food Inspector to violate the Rule. A Food Inspector should always be cautious in complying with the Rules as far as possible and should not send a lesser quantity of sample than prescribed to the Public Analyst unless there be a sufficient reason for doing so.
10. Mr. Goyal specifically invited my attention to the following observations of the Supreme Court in the above case 'but if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical ground which have no substance'. I have given thoughtful consideration to the above rival contentions of the learned Counsel for the parties and the principles laid down in the above decisions. It is true that this Court and the Kerala High Court in the above-mentioned cases have acquitted the accused on the ground of non-compliance of Rule 14. In the Kerala case it was admitted by the Food Inspector that the bottles in which he took the sample were not clean. In view of the admission of the Food Inspector that the bottles were not clean, the decision of the Kerala High Court cannot be of any assistance and guidance of this Court in this case.
11. So far as the case of Naresh Kumar is concerned, it appears that the above three decisions of the Hon'ble Supreme Court were not brought to the notice of the learned Judge.
12. In the instant case, there is no admission of the Food Inspector that the bottles were not dry or clean as was the case in Kerala. In the instant case, Mr. Goyal pointed out that the Inspector has said that the process of sealing etc., and taking of samples of the bottle was done according to Rules. The word used is ^^fu;ekuqlkj* Once the Inspector says so, it would be for the cross-examiner or the accused's counsel put questions to show that the Rules were violated. In the instant case very lengthy cross-examination was conducted, but not a single question was put that the bottle was not clean or not dry. The only question which was put to the Inspector was that he has not cleaned the bottle either before bringing it from the Municipal Council or at the time of taking the sample but this cannot be equivalent to that any inference can be drawn from this that the bottle was not clean and not dry. In the face of clear statement of the Inspector that he has taken the proceedings of taking sample and sealing according to Rules, a presumption can be drawn as held by their Lordships of the Hon'ble Supreme Court in the above referred case that the bottles were dry and clean.
13. As pointed out by their Lordships of the Hon'ble Supreme Court in the above case, if would be too dangerous to leave such accused who indulges in social crimes of food adulteration which is a serious, hazard to the health hygiene and safety of the society, on technical grounds. I am convinced that the above two judgments of the Hon'ble Supreme Court having not been brought to the notice of this Court in the above referred case, the principles laid down by this Court in Municipal Council, Sri-ganganagar v. Naresh Kumar 1979 (2) FAC 12.1 in respect of interpretation of Rule 14, need not be followed in the present case. I am certain that if the above two judgments of the Hon'ble Supreme Court would have been brought to the notice of this Court, the decision would have been different.
14. Even otherwise on these facts, I am convinced that the use of the word is ^^fu;ekuqlkj* by the Food Inspector and absence of cross-examination on that point clearly goes to show that there was compliance of Rule 14.
15. The learned Magistrate has also observed that there was non-compliance of Rule 16(b) Whatever I have said about Rule 14, equally applies for Rule 16(b) The Food Inspector has clearly said that the sealing was done according to Rules and there is nothing in cross-examination to suggest that this statement is incorrect.
16. The trial court has already held that the sample of 'he chillies was found to be adulterated and nothing has been shown before this Court to take a different view. In my opinion the statement of the Food Inspector in this respect is sufficient to prove the sample of chillies was taken from the accused and it was sent for chemical examination by Public Analyst and the result of the examination has been that it has been found to be adulterated.
17. I am of the opinion that the offence is well proved against the accused and acquittal cannot be sustained. The offence of adulteration in food stuffs like chillies is a very serious offence and it is an offence against the society as a whole because the adulteration of the food stuffs endangers the health of the society.
18. The learned Counsel for the accused was heard on the point of sentence. He requested that the accused may be let off with fine only as sufficient time has passed in between the commission of offence and decision of this case. I am of the opinion 'hat it would be misplaced leniency if in social crimes like offence of food adulteration any leniency is shown. As already observed these social crimes require to be dealt with seriously by the Courts and when the guilt of the accused is proved, the punishment should be adequate. The present one is a case of adulteration in chillies which is used in house-hold for preparation of food every day and it can create serious danger to the health of the citizens. The obvious object of such adulteration can be greed to earn more money at the cost of suffering of the people. That being so I have not been able lo persuade myself to take lenient view as suggested by the learned Counsel for the accused.
19. The appeal is accepted. The respondent Gangalahari is, therefore, convicted under Section 7/16 of Prevention of Food Adulteration Act and sentenced to six months' rigorous imprisonment along with a fine of Rs. 500/-. He shall suffer further rigorous imprisonment for 15 days in default of payment of fine. The learned District Magistrate, Alwar should take steps to get the accused arrested for undergoing sentence.
20. Before parting with this case, it must be made clear that offence of adulteration in Chillies or other food-stuffs deserves exemplary deterrent severe punishment of few years, at leas', so that not only an accused is properly punished, other citizens also realise that law would come with heavy hand and would not condone such adulterations by lenient and liberal punishments. However, in the instant case I am making exception by punishing the accused for six months of sentence and fine of Rupees 500/- for the exceptional reasons that this appeal against acquittal relates to an offence of the year 1972 and one decade has passed in between. During this one decade, the accused must have remained constantly under the fear and apprehension of punishment in a criminal trial. But even then, letting off in accused only on sentence of a fine would have put premium on his social criminal activity, because an adulterator who earns lot of money by such methods, can always afford to pay a small part of it if he can go scot free and then again, start the same nefarious activity. It should not be forgotten that in a given case, a murderer commits the murder of only one person but an adulterator by such sweet poisoning of adulterated foodstuffs impairs the health of thousands and lacs in the society and sometimes, that impairment results in creating of handicap in children and in a remote case, there may be loss of life also. The trial Magistrates should always keep themselves aware of the serious dimensions in future and once, the offence is proved on merits, then simply on technicalities of no substance, misplaced acquittals or releasing such offenders on probation or normal sentence of fine would result only in abetments of such crimes, in a literal sense, which they should always avoid. It is desired that in appropriate cases, deterrent exemplary punishment should be given and that would be in consonance with intention and object of this legislation.
21. The net result is, that this appeal is accepted as indicated above.