S.N. Deedwania, J.
1. This appeal is preferred against the acquittal of Shantilal respondent accused by the Municipal Magistrate, Udaipur vide his judgment dated 7.11.1969.
2. The facts briefly stated are that on 310.1966 at about 2 30 p.m. Food Inspector Shambhu Narain took sample of black pepper from the respondent and duly sealed it. The sample was divided into three parts and put into three sealed bottles. One sealed bottle was given to the appellant One sample was sent to the Public Analyst, Rajasthan Jaipur who upon analsyis found the sample of the black pepper adulterated. The appellant was prosecuted in the court of Municipal Magistrate, Udaipur. The learned Magistrate acquitted the appellant solely on the ground that the prosecution had failed to prove that the provisions of Rule 7 and 18 of the Prevention of Food Adulteration Rules 1955 (hereinafter referred as the Rules) had been complied with.
3. I have heard the learned Counsel for the parties and perused the record of the case carefully.
4. It was argued by the learned Counsel for the appellant that it is proved by the statement of PW 1 Shambhu Narain that the seal which was used to seal the packet was sent to the Public Analyst separately and, therefore, the provision of Rule 18 of the Rules was complied with. On the other hand it was argued by the learned Counsel for the respondent that there was not an iota of evidence to prove that the seal which was used for sealing the sample was sent to the Public Analyst separately by registered post or delivered to him. I have considered the rival contention and perused the statement of PW 1 Shambhu Narain. He has no where stated that he sent the seal separately to the Public Analyst. He stated that he sent one sample bottle with Form No. 7 by registered post to the Public Analyst, Jaipur. He further stated that the second copy of form No. 7 was sent by Local Authority to the Chemical Examiner Jaipur and the third copy was Ex P.4. In my opinion it is not possible to infer from this statement that the seal was sent by the Local Authority with the second copy of Form No. 7. There was an obvious breach of Rule 18 of the Rules. In such circumstances the appellant was rightly acquitted by the learned trial court. In my opinion provision contained in Rule 18 of the Rules regarding sending specimen signature of the seal separately is mandatory and its non-observance is fatal to the prosecution. I am fortified in my view with the observations in State of Rajasthan v. Rom Sahai (1979 Criminal law Reporter (Rajasthan) page 60):
It may be stated that in Harchand Gajpal's case (supra) the nature of Rule 4(3) of the Prevention of Food Adulteration Rules, 1955, has been considered by the Division Bench of the Gujarat High Court and the Division Bench has held that the rule is mandatory and is required to be complied with strictly. Rules 7, 16, 17 and 18 of the Rules have also been taken into consideration in the determintion of the question referred to the Division Bench.
In Enayat Ali's case (supra) the Division Bench of the Bombay High Court has observed that the object of Rule 18 is to furnish an independent means of cross-checking, the identity of the seal on the sealed packet of the sample to be analysed. They divided the Rule 18 into two parts and held that the first part is mandatory, whereas for the second part they observed that it can not be said to be mandatory. The second part relates to the manner of delivery and the first is concerned with sending of the memorandum with specimen impression of the seal separately.
Thus, firstly, there is no oral testimony of the Food Inspector regarding compliance of the Rules 17 and 18, secondly the reports Ex. P/6, in the present case, are not in conformity with two prescribed Forms complying with Rule 7 of the Rules. In my opinion, the presumption regarding compliance of Rule 18 cannot be made when compliance of Rule 7 is not evident from the reports Ex.P.6, which I have discussed above.
5. In the result the appeal is dismissed.