J.N. Bhat, J.
1. An appeal against the conviction of the respondent was accepted by the learned Sessions Judge, Jammu, mainly on two legal grounds: one that sanction to prosecute the respondent was not valid sanction and secondly that Rules 6 and 18 made under the Prevention of Food Adulteration Act (hereinafter to be referred to as the Act) had not been complied with. The learned Sessions Judge has also come to the conclusion that the charge under Section 16(1) of the Act was not proved beyond doubt against the respondent. Against the order of the learned Sessions Judge dated 21st August 1965, this acquittal appeal has been preferred in this Court.
2. We have heard the learned Counsel for the parties in this case. We would first take up the points of law taken up in this case. The first proposition of law is that the prosecuting authority had not applied his mind to the facts of the case and then given sanction for prosecution. Under Section 20(1) of the Act No prosecution for an offence under the Act shall be instituted except by or with the written consent of the Government or of a local authority or a person authorized in this behalf by the Government....
3. It is admitted before us that the Health Officer is the authority or the person authorized by the Government to launch prosecutions. The only argument that has prevailed with the learned Sessions fudge is that there is nothing on the record to show that the material facts constituting the offence were placed before the Health Officer, and the learned Sessions Judge has relied on AIR 1954 SC 637. That was n case under the Prevention of Corruption Act. In that case the letter of sanction was signed by the P.A. of the sanctioning authority. The P.A. appeared as a witness to prove another document which purported to be the draft of a letter of which the letter sanctioning the prosecution was a copy. The draft contained the word 'approved' by the sanctioning authority. It was held that sanction was actually given though it was not in a proper form.
4. In AIR 1963 J & K 30 it has been laid down:
Before a sanction for prosecution of the accused for an offence under Section 19(f) of the Arms Act, can be valid it must be established that all the facts constituting the offence have been placed before the sanctioning authority so that it may be in a position to apply its mind. This can be proved in two ways: Either by Producing the sanction which on the face of it shows the material which was produced before the sanctioning authority or by evidence aliened to show the materials that were placed before the sanctioning authority'. In AIR 1966 Pat 15 it has been laid down that sanction must show that the material facts were placed before the sanctioning authority or otherwise proof thereof must be adduced
5. The sanction in this case has been given on a printed form which purports to be signed by the Health Officer and this authority authorizes Shri Bansi Lal to file a complaint in the Court. This is Ex. PB in this case. We should have wished that the printed form contained some additional sentence or part thereof to the effect that the sanctioning authority had examined the record and after examination satisfied itself that there was a case for prosecuting a particular accused. Such an addition would in future also put an end to the argument as sought to be put in this case. But in the present case we are afraid this argument is not valid. All the papers seem to have been placed before the Health Officer. They have a serial page-mark as beginning from page 3 and this sanction appears on page 7, which shows that the whole series of papers was placed before the Health Officer. The papers contained all the necessary data which should be perused by the sanctioning authority before ordering prosecution. Nothing more need have been examined by the Health Officer. Therefore, this part of the argument does not hold water and we do not agree with the finding of the learned Sessions Judge that the Health Officer did not at all apply his mind to the facts of this case before sanctioning prosecution.
6. Now we take up the other point, namely, whether the rules made under the Act have not been complied with. Rule 6 of the Rules made under the Act says that-
On receipt of a package containing a sample for analysis from Food Inspector or any other person the Public Analyst or an officer authorized by him shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.
7. It is argued that there is nothing on record to show that the seals on the container and the outer cover with the specimen impression received separately were examined by the Public Analyst and they were found to be identical. According to the learned Counsel appearing for the Municipality, it is not necessary that this fact of his having compared the two seals should be clearly mentioned in his report. It has further been argued that there is a prescribed form in the report of the Public Analyst which is Form No. 1 and the form does not at all enjoin any such formality to be observed. In this connection the learned Counsel has referred to the following authorities:
: AIR1964All199 .
In the Allahabad authority (supra) it was held that 'if the accused wanted to challenge the fact that the sample that had been sent to the Public Analyst was not the same that had been taken from them, or that the sample that had been sent had been tampered with during the course of transit or during the period it was stored in the office of the Municipal Board, they could have sent their own sample for analysis as provided under Section 12.'
The Orissa authority discusses the duties of the Public Analyst. There also was a form of the report of the Public Analyst, It was held that the report could not be said to be in any way, irregular and could be accented as sufficient evidence of adulteration and for convicting the accused.
In the Madras authority (supra) a lesser quantity than indicated in the rule was sent for analysis and it was argued that Rule 20 had been violated. But that contention was repelled.
Similarly in the Kerala authority it was laid down that the act of sampling, sealing and forwarding of samples by the Food Inspector and ascertaining the seal to be intact by the Public Analyst were proved. It was, therefore, held that these acts were official acts and were performed properly under Section 114, Illus, (e) of the Evidence Act.
As against these authorities, there is a Gujarat ruling reported as : AIR1964Guj136 . This authority has not been followed in the Orissa and the Kerala authorities. This authority lays down:
To base conviction upon report, the record must show that the Food Inspector and the Public Analyst had complied with Rule 7 and 18 of the Prevention of Food Adulteration Rules. These rules are framed in order to prevent the possibility of tampering with the sample before it reaches the Public Analyst. Where the report of the Public Analyst merely shows that the seals were intact and unbroken, but it does now show that the seals on the container were compared with the specimen seals sent by post to the Public Analyst, the Court cannot be sure that the sample which has reached the Public Analyst was not tampered with on the way. Rule 7 and 18 are framed in order to prevent such a possibility.
8. Section 11 of the Act lays down the procedure to be followed by Food Inspectors. It lays down that when a Food Inspector takes a sample for food analysis he has to give a notice in writing then and there of his intention to have it so analyzed to the person from whom he has taken the sample; he has to separate the sample into three parts and mark and seal and fasten up each part in such manner as its nature permits; deliver one of the parts to the person from whom the sample has been taken, send the other part to the Public Analyst, and retain the third part for production before the Court. The procedure in this section is complete in itself. Its object is to safeguard the interests of the person from whose custody some food articles which are suspected to be adulterated are seized. After the Public Analyst gives his opinion against the person from whose possession the sample has been seized, the accused retains one portion of the sample, and if he feels that the sample seized is not the same as the one examined by the Public Analyst or feels that the seals were tampered with, he can come forward with his own sample and get it verified by the Public Analyst, If he does not do so, it can safely be inferred that he has had no grievance against the report of the Public Analyst.
9. In our opinion Rule 6 has not been violated at all, in so far as there is no specific mention in the report of the Public Analyst that he has compared the seals on the sample sent and the specimen impression of the seal received separately. The form prescribed under the Act and the rules do not make it obligatory for the Public Analyst to make a special mention of this thing having been noted by the Public Analyst. We would, however, wish that the form were more or less detailed and contained an addition to the effect that the Public Analyst had noted the seal on the container and the outer cover of the article seized with the specimen impression of the seal received separately by him. But the mere absence of making any such note does not invalidate die report of the Public Analyst. The impression of the seal is sent to him separately and the seized portion of the sample also bears the seal. It is for comparing the two that both are sent to him, and as remarked by the authorities mentioned above, except the Gujarat authority, it is an official act performed by the Public Analyst and under Illustration (e) to Section 114 of the Evidence Act would be deemed to be properly performed.
10. The Gujarat authority has gone very far and we do not feel inclined to agree with it in view of Section 11 of the Act as quoted above. In our opinion, therefore, the report of the Public Analyst, without an express mention that he had compared the seals would be sufficient, though as already remarked we would wish that the form which is Form No. 1 made under the Act contained some such insertion. In our opinion, therefore, Rule 6 has not been violated at all.
11. There is nothing explicit in the judgment of the learned Sessions Judge to show how Rule 18 has been violated. But all that the spirit of this rule requires is that the copy of the memo and a specimen impression of the seal should reach the Public Analyst: whether it reaches him by post or otherwise that would not make any difference. It would be preferable if the same is sent by post but mere omission to send the same by post would be a technical irregularity which should not affect the merits of the case. Therefore, in our opinion Rule 18 has not been violated.
12. Apart from this academic discussion on this point we would go so far as to say that these points do not seriously arise in this case. They were never raised before the trial Court nor do they form part of any ground in the memo of appeal. The accused respondent has not denied in his statement that the milk seized from him was adulterated. He has simply stated that he purchased the milk from somebody and did not know whether it was adulterated or not.
13. On the factual side we have examined the record and have gone through the evidence. The report of the Public Analyst discloses the fat contained in the seized milk was 2.1 per cent, SNF 5.3 per cent, water 92.6 per cent. Under the rules framed under the Act, if it is cow's milk, the contents should be as under:
Fat 3.5 per cent; SNF not less than 8.5 per cent.
and for buffalo's milk fat contents should not be less than 5.5 per cent and SNF not less than 9 per cent.
So if it were either cow's milk or buffalo's in ilk, it had fallen, so far as fat content and SNF is concerned, below the prescribed mark. If it were a mixture of both the contents of fat and SNF should have been higher than these required for cow's milk. The accused was given an option of calling the Public Analyst for examination. He did not do so. The statement of Bansi Lal P.W. shows that he had purchased the milk from the accused. He sealed a bottle and sent it on to the Public Analyst. The other portion of it was kept by him and a third portion given to the accused. These facts are admitted by the respondent. He does not, as already stated, even dispute the adulteration of the milk. He has sold the adulterated milk and therefore he is guilty under Section 16 of the Act, which in the case of the present respondent who is a first offender, may be an imprisonment extending to one year or with fine or with both. The Munsiff-Magistrate has awarded rather a severe punishment to the accused.
14. We, therefore, set aside the order of acquittal passed by the Sessions Judge and convict the respondent under Section 16 of the Prevention of Food Adulteration Act but reduce the sentence of imprisonment to one month's rigorous imprisonment and impose a fine of Rs. 100 also. In default of payment of fine the respondent shall undergo further rigorous imprisonment for 15 days.