Kanta Bhatnagar, J.
1. The State of Rajasthan has filed this appeal against the judgment dated January 17, 1977 passed by the Chief Judicial Magistrate, Bhilwara by which the respondent Gopal Krishan was acquitted of the charge under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter to be referred as 'the Act').
2. On May 30, 1974 Food Inspector, Bhilwara went to the shop of Firm Kai-lash Chandra Gopal Krishan situate in Sadar Bazar, Bhilwara and purchased from him 375 Gm. of Til Oil. The Inspector divided that oil in three parts and poured the same in three clean bottles and sealed them and prepared the memo. One of the sample was sent to the Public Health Laboratory, Ajmer for Analysis. As per report of the Public Analyst Public Health Laboratory, Ajmer Ex. P. 6 the Til Oil was found to be adulterated as it did not conform to the prescribed standard of purity. Complaint against the respondent Gopal Krishan was filed in the Court. On his plea being recorded, he denied the indictment. During the course of trial, the respondent made a prayer for getting the sample examined at Central Food Laboratory, Calcutta. The learned Magistrate allowed the prayer and sent the sealed sample through Railway Parcel. On opening the parcel containing the sample, at the Central Food Laboratory, Calcutta, the bottle was found empty. On June 2, 1975, respondent was directed to produce the bottle containing the sample given to him under Section 11(1)(c)(i) of the Act. He denied to have received any such bottle. In view of the evidence of the prosecution and the statement of the respondent under Section 313 of the Criminal P. C. the learned Magistrate accepted the position that one part of the sample was given to the respondent. The learned Magistrate however did not agree with the argument advanced from the prosecution side that adverse inference should be drawn against the respondent for not producing the sample with him and the report of the Public Analyst. Ajmer should be taken into consideration. According to the learned Magistrate, prosecution cannot take advantage of any weakness or infirmity of the defence. If the case fails because of any mistake of the prosecution, the benefit should go to the accused. In view of that finding, the learned Magistrate passed the judgment of acquittal which is the subject matter of this appeal.
3. The learned Public Prosecutor has assailed the judgment of the learned Magistrate on the ground that, when the sample had been given to the accused as per rules it was obligatory on him to produce his sample so that report from the Central Food Laboratory may be obtained. The learned Public Prosecutor placed reliance on the principle enunciated in the case of Mohinder Singh v. State of Punjab 1975 FAJ 342(Punj and Har). In that case the bottle of the sample with the accused was found to be broken. The bottle containing third sample smashed while in transit to the Director Central Food Laboratory, Calcutta. The accused was convicted on the basis of analysis of the Public Analyst. His Lordship was pleased to observe that no doubt whenever suspicious circumstances come into existence in such cases, to which the prosecution has contributed by its acts of commission or omission, the benefit of the doubt goes to the accused. The conviction was however for the reason that in that case no such criticism could be lodged against the prosecution.
4. Mr. M.S. Singhvi, learned Counsel for the respondent controverting these contentions submitted that simply because the respondent could not produce the sample bottle given to him, he cannot be held guilty because it was the duty of the prosecution and the authorities concerned to keep the bottle retained by them in proper condition. That, if the bottle was found to be empty at the Central Food Laboratory the accused was entitled to the benefit he had been given by the learned Magistrate. The learned Counsel referred to the cases of Gurbachan Singh v. State of Punjab 1972 FAC 582 : 1973 Cri LJ 765(Punj.) and Municipal Corporation of Delhi v. Devki Nandan Khurana (1975) 1 FAC 443(Delhi) and distinguished the case of Mohinder Singh v. State of Punjab 1975 FAJ 342(Punj & Har) (supra) relied on by the learned Public Prosecutor.
5. In the case of Gurbachan Singh 1973 Cri LJ 765(Punj.) (supra) the sample kept by the Food Inspector was not properly sealed and stoppered. His Lordship was pleased to consider the argument advanced on behalf of the accused petitioner that he was entitled to acquittal for the reason that his right to have the sample analysed from the Director, Central Food Laboratory Calcutta had been taken away by the conduct of the prosecution in not keeping the bottle properly sealed and stoppered. His Lordship was of the view that the right of the accused to obtain the report of the Director of the Central Food Laboratory was taken away by the carelessness of the complainant to keep the bottle with the seal intact and in proper condition, and in this situation it would not be safe to hold the petitioner guilty of the offence beyond doubt. His Lordship referred to the case of Chintamani v. State 1964 All LJ 893 wherein the true meaning and the scope of Sub-section (1) (c) (iii) of Section 11 were considered and it was held as under:
In Section 11, Prevention of Food Adulteration Act, 1954, the word used is 'shall' the normal connotation of which is 'must'. There is no reason why it should not be given its natural and normal meaning. The direction given in Section 11(1)(c)(iii) is intended to be a command. It is in nature mandatory. The Prevention of Food Adulteration Act confers on the accused a right of appeal against the report of the Public Analyst and situate further entitles the accused to have the sample retained by the Food Inspector sent for examination in order to test the veracity of the report made by the Public Analyst and, if, due to the default of the complainant, the accused is deprived of this right he is entitled to get the benefit of doubt.
6. Accepting the view of the law stated above. His Lordship observed that the direction given in Section 11D(c) (iii) is intended to be a command and is mandatory in nature.
7. In Mohinder Singh's case 1975 Faj 342(Punj & Har) (supra) relied on by the learned Public Prosecutor, the circumstances were of different nature. The third sample was smashed. The Court while sending the same had checked the seal and found that intact. It was in such circumstances that his Lordship was of the opinion that prosecution and its authority could not be criticised for any negligence or carelessness. The fact of the bottle of the sample with the accused found to be broken was also considered against the accused and for that reason the learned Public Prosecutor urged that because the accused has declined to produce his sample, despite direction, thereby depriving the prosecution of getting the report from the Central Food Laboratory, he should be punished on the report of the Public Analyst.
8. The facts of the case of Municipal Corporation of Delhi v. Devki Nandan Khurana 1975 1 FAC 443(Delhi) (supra) are very much similar to the case on hand. In that case the accused applied during the trial that the part of the sample retained by the Food Inspector be sent to the Director, Central Food Laboratory, Calcutta for being analysed. So far as the part of the sample which had been given to him, it was stated by him, that the bottle containing it had been broken. The Director Central Food Laboratory found the sample sent to him to be leaking and a portion of the contents to have leaked out. It was reported by him that the remaining portion being 'unrepresentative the sample had been rejected'. Their Lordships were pleased to observe that the stoppers in bottles, jars or other containers in which samples are packed are required to be securely fastened so as to prevent leakage of the contents in transit. In the circumstances of the case it was held that due to the conduct of the prosecution the accused was denied the valued right conferred on him by Section 13(2) of the Prevention of Food Adulteration Act to have the sample retained by the Food Inspector to be analysed by the Director Food Laboratory, Their Lordships refused to interfere with the order of acquittal. Reliance was placed on the principle enunciated by their Lordships of the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 that in a case where there is denial of right conferred by Section 13(2) on account of the conduct of the prosecution the conviction cannot be sustained.
9. Section 11 of the Act lays down the procedure to be followed by the Food Inspector.
(1) When the Food Inspector takes a sample of food for analysis, he shall -
(b) except in special cases provided by rules under this Act, separate the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits; and
(c) (i) deliver one of the parts to the person from whom the sample has been taken;
(iii) send another part of analysis to the public Analyst; and
(iii) retain the third part for production in case any legal proceedings are taken or for analysis by the Director of Central Food Laboratory under Sub-section (2) of Section 13 as the case may be.
10. The intention of the legislature for obligating the Food Inspector to keep three separate samples of the article taken by him is to make a provision for check and counter-check on the report of the Public Analyst. Clause (1) (c) (i) of Section 11 provides for only delivering of one of the parts to the person from whom the sample has been taken, whereas in Clause (1) (c) (iii) the purpose for retaining the third part of the sample has been mentioned. If the accused makes a prayer for sending the third sample for analysis by the Director of the Central Food Laboratory under Sub-section (2) of Section 13, the prosecution cannot come with a case that the sample with the accused may be sent. Similarly the Court also should not in ordinary course of circumstances direct that it is the sample of the accused which should be sent and not the one retained by the prosecution. The sample to be given to the accused is solely for his own protection, and 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. This does not however mean that there is anything wrong in the Court asking the accused to produce the sample with him to be sent to the Central Food Laboratory, what I mean to say is that in case the accused fails to produce his sample and the third sample cannot be sent for any reason or is not found ' worth analysis because of any leakage or otherwise, no adverse inference can be drawn against the accused for his inability or reluctance to produce the sample given to him.
11. The case of Mohinder Singh 1975 FAJ 342(Punj and Har) (supra) does not help the prosecution in the present case. In that case there was a clear finding of the Court that the prosecution and its authorities were not responsible for any carelessness or negligence as the seals of the sample were found intact by the Court at the time of its being sent to the Central Food Laboratory, Calcutta and the sample smashed when in transit.
12. In the present case the bottle containing the oil was found empty. There is no evidence of any leakage. In such circumstances, there was every reason to doubt the required care and caution being taken by the authorities concerned.
13. In the case of Municipal Corporation Delhi 1975 1 FAC 443(Delhi) (supra) the statement of the accused that the seized bottle of sample given to him had been broken was not considered to be a point against him and he was not penalised for his negligence.
14. The next argument advanced by the learned Counsel for the respondent is that it was long after the sample being taken that the accused was asked to produce his sample to be sent to the Central Food Laboratory and therefore, even if he would have produced the sample, the purpose could not have been served.
15. The sample was taken on May 30, 1974. It was on July 2, 1975, more than a year after that, that the accused was asked to produce his sample. There is force in the contention that with the lapse of time there were chances of increase of rancidity in the oil sample.
16. The learned Magistrate after discussing the factual as well as legal aspect, has rightly held the prosecution responsible for the bottle being found empty at the Central Food Laboratory, Calcutta. The learned Magistrate, in my opinion has not committed any error in not penalising the respondent for his not producing the sample given to him.
17. The learned Public Prosecutor alternatively argued that even if the report from the Central Food Laboratory could not be procured still this was a case of conviction because of the report of the Public Analyst, Ajmer. The argument has no force. The scheme of Section 13 of the Act is that the Public Analyst shall deliver the report to the Food Inspector of the result of the analysis of any article of food submitted to him for analysis. Section 13(2) gives an opportunity to either party to challenge the report of the Public Analyst by making a prayer to the Court for sending the part of the sample mentioned in Sub-clause (i) or Sub-clause (Hi) of Clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate. Sub-section (3) of that section clearly provides that the certificate issued by the Director of the Central Food Laboratory under Sub-section (2) shall supersede the report given by the Public Analyst under Sub-section (1) In cases where neither party makes a prayer to the Court under Section 13(2) of the Act, it is only the report of the Public Analyst which comes up for consideration by the Court. But in a case like the present one, where there is a prayer under Section 13(2) of the Act for the third sample retained by the authorities meant for the purpose to be sent to the Central Food Laboratory, if the report is not available on account of the bottle having been found empty, and there is nothing to suggest that this, was in the transit, without there being any fault of the prosecution and its authorities, the respondent was entitled to the benefit he had been given by the trial court.
18. Consequently, the appeal filed by the State of Rajasthan having no merits is dismissed.