It is imperative in my opinion that the Public Analyst must find out when a sample falls below the prescribed standard or its constituents are present in quantities not within prescribed limits of variability whether the said adulterated sample renders it injurious to human health or whether it does not render it injurious to public health. The present report of Public Analyst at Ex-38 is silent on this question and, in my opinion, such report which is vague and defective cannot form the basis for any conviction. I am supported in my view by the decision of the Madhya Pradesh High Court in the case of Gaffar Khan v. State of Madhya Pradesh, reported in 1984 (I) F.A.C. 79. {Para 16}
17. For all these reasons, therefore, I am of the opinion that the mandatory procedure has been neglected. Public Analyst's report is vague and even otherwise the opinion given does not lay down the quality of adulteration as required under Section 2—(ia)—(I) or (m) and last but not the least, the sanction for prosecution under Ex. 39 is also invalid. The conviction of the applicant on the basis of these materials cannot be sustained. Both the courts below have erred in taking the proper view and appreciation of the evidence.
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(Before Puranik, J.)
Nizamuddin Siddikbhai Tigala Vs The State of Maharashtra
Criminal Revision Application No. 39 of 1985
Decided on July 25, 1985
Citation: 1985 SCC OnLine Bom 460 : (1985) 2 FAC 88
The Judgment of the Court was delivered by
Puranik, J.:— This Revision is directed against the order of conviction and sentence passed by Judicial Magistrate, First Class, Gondia on 21-3-1984 under Section 7-(i) read with Section 2-(i)-(c) punishable under Section 16 of Prevention of Food Adulteration Act, 1954 whereby he was sentenced to suffer R.I. for 6 months and fine of Rs. 1,000/-. This order was confirmed by the Appellate Court of the Additional Sessions Judge, Gondia on 30-1-1985 confirming the conviction, but reducing the sentence.
2. The applicant is a trader in Kirana goods and also runs an oil mill at Gondia. The complainant Shri Shribhate, Food Inspector, Bhandara visited the Kirana shop of the applicant/accused on 24-1-79 along with panchas. He had taken samples of mustard seeds from the applicant on payment. The mustard seeds were divided in three parts and each part was packed in dry empty clean polythene bags. The mouth of each bag was duly closed with flame and were then carefully wrapped in thick brown paper. The paper slip issued by the Local Health Authority bearing Code number and signature of the Local Health Authority was pasted on each bag. Each sample packed was then horizontally and vertically tied by a tag by wax seal. One of the sample bags was sent, to the Public Analyst. While the remaining 2 were sent to the Local Health Authorities. The sample was received by public analyst on 27-1-1979 and the report of Public analyst is received on 6-3-1979. The Food Inspector thereafter secured the consent for prosecution on 31-5-1979 and lodged complaint in the trial court. After recording some evidence before charge, the trial court framed charges against the applicant to which the accused abjured his guilt and claimed to be tried. Further cross-examination was held and on 9-2-1984 the statement of the accused under Section 313 Criminal Procedure Code was recorded and the Trial Court delivered its judgment on 21-3-1984 convicting the applicant as above. The appeal preferred by the applicant came to be dismissed on 30-1-1985. These two concurrent orders of con-viction and sentence are being impugned by the applicant
3. Shri N.R. Kanhe, Advocate with Mr. J.J. Agarwal Advocate appeared for the applicant. The respondent State in represented by Shri S.Z. Deshbhratar, Asstt. Government Pleader.
4. With the assistance of the counsel, I have gone through the entire records and papers of the trial court as well as the judgments of both tho courts below.
5. It was contended on behalf of the applicant that the consent (Ex. 39) for prosecution secured by the Food Inspector is no consent in tho eye of law. There is total non-application of mind on the part of sanctioning authority and the consent is totally vague in respect of the nature of adulteration allegedly committed by the applicant. According to Shri Kanhe, therefore, the defective consent has rendered the trial vitiated. His next submission was that, Rule 16-(c) and (d) framed under Food Adulteration Act are mandatory in nature, and there has been a breach of the same and hence conviction on the basis of the public analyst's report after adapting defective procedure cannot be sustained. He also made a grievance that there has been a non-compliance of Section 11-(1)-(c)-(i) of the Food
Adulteration Act, whereby the Food Inspector it duty bound to give intimation to the Local Authority before sanding a sample to the Public Analyst. Shri Kanhe also submitted that in the present case, the Food Inspector at Gondia had carried 2 panchas with him at the time of taking sample. Only one of the two panchas has been examined, but who has turned hostile. The Food Inspector has not cared to tender in witness box the second panch which he was bound to. The counsel for the applicant also criticised the Public Analyst's Report (Ex. 36) as totally vague. It does not mention the date on which the analysis was effected and the name of the person by whom it was effected. It also does not give out whether the percentage of foreign material found in the sample was injurious to health or not. It is also not mentioned whether the percentages were taken by volume or by weight. According to him, therefore, the public analyst's report itself is defective, inadequate and therefore, cannot form basis of any conviction. On these and other grounds, he claimed that the conviction of the applicant is liable to be set aside.
6. Shri Deshbhratar, the learned Public Prosecutor for the State supported the impugned judgment. He relied upon the observations of the lower Appellate Court that the accused has admitted that the entire procedure was followed correctly and therefore according to the Public Prosecutor, the grievance regarding non-observance of procedure cannot be raised at the revisional stage.
7. A look at the sanction to prosecute produced on record at Ex. 39 shows that the Sanctioning Authority having perused the relevant papers, has given the consent for prosecution of applicant Nizamuddin for offences alleged to have been committed by him by stocking for sale and selling of mustard seeds on or about 24-1-1979 in contravention of Section 7 punishable under Section 15 of the Prevention of Food Adulteration Act. Section 7 of the Prevention of Food Adulteration Act prohibits manufacture, sale etc. of certain articles of food and says that:
“No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute—
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is pre-scribed, except in accordance with the conditions of the licence;
(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder;
(vi) any adulterant.”
8. If that be so, then surely the Sanctioning Authority must apply its mind to the record placed before it and before according sanction, to find out as to
what is the nature of offence committed by the accused, whether it is an adulterted food or whether it is misbranded food or whether the said food article can be sold only under certain conditions of licence or whether the said article of food is prohibited from sale in the interest of public. The omnibus sanction g??? under Est. 36 for breach of Section 7 therefore, shows non-application of mind on the part of the Sanctioning Authority. It is further to be noted that it is expected of the Sanctioning Authority to mention while consenting for prosecution the one or two of the various types of adulteration as are described in Section 2(ia)-(a) to (m).
9. This Court in the case of State of Maharashtra v. Shantilal Jamnadas Thakkar, 1979 (I) F.A.C. 210 has held that such omnibus sanction for prosecution under Section 7 of the Food Adulteration Act is totally defective and vitiates the trial. On this point alone, therefore, the Revision could be allowed and impugned orders set aside.
10. Rule 16 of the Prevention of Food Adulteration Act refers to the manner of packing and sealing samples. Sub clause (c) of Rule 16 has been inserted by an amendment issued on 4-1-1977 and it reads as under:
(c) A paper slip of the size that goes round completely from the bottom to top of the container, bearing the signature and code and serial number of the Local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb impression of the person from whom the sample has been taken being affixed in such a manner that the paper slip and the wapper both carry a part of the signature or thumb impression………”
11. It is well settled that when the conviction is to be based on more or less evidence of technical nature, in that the Food Inspector is only required to prove the fact of having taken sample after adopting the procedure laid down by the Act and the Rules and of having forwarded the sample to the Public Analyst and Local Health Authorities as required and on getting report of the Public Analyst that the Food is adulterated, it is equally important that each and every stage of the procedure, the manner of taking sample, the manner of sealing of sample, the manner of forwarding the sample is established by cogent evidence. It is only then that the report of the public analyst can form the basis of conviction. This apart from the fact that the report of the public analyst is proper, clear and incriminating the accused, it is also for this purpose that stringent Rules in detail have been framed by the Legislature so as to preclude any other defences available to an accused in an adulteration case. It is also to ensure fair trial to the accused, inasmuch as there are checks and counter-checks on the actions of the Food Inspector and he is not able to misuse or abuse the powers conferred on him by law. The purpose of inserting Sub-clause (c) in Rule 16 is to see that the entire sealed sample is completely covered by a paper slip from top to bottom and that paper slip should contain the signature and code and the serial number of the Local Health Authority. It is further safeguarded by assuring that the Food Inspector secures the signature of the accused from whom sample is taken on the container in such a way that part of the signature appears on the said paper slip and part of the signature appears on the brown paper wrapper. It is thereafter that the entire sample is to be tied and seals fixed.
12. In the instant case, the relevant extract from the evidence of Food Inspector (P.W. 1) states as follows:
“……I divided the said 600 Gnv. mustard seeds in three equalparts and put each of part in clean dry and empty polythene bag. I prepared the sample labels in triplicate and one label was put in each bag. Every sample label was having written “AKS/49/79” on each of it. Each sample label was signed by the accused, witness and myself. The mouth of each Polythene bag was closed with the help of flame. Each bag was wrapped in a thick brown paper and both the ends of the papers were pasted with gum. I have pasted a paper slip signed by LHA, Chief Officer, M.C. Gondia on each of the pocket Each paper slip bears the number 59 and Code No. BM/157/ND Each sample bag was tied with a tag in a vertical and horizontal manner. 4. lak seals were put on each of the sample bag……”
13. This evidence clearly shows that the mandatory requirement of Rule 16(c) has been either omitted or not proved by the prosecution. He does not mention in his deposition that upon the paper slip issued by the Local Health Authority and bearing Code number and signature of Local Health Authority, he also obtained signatures of the accused in such a way that the part of his signature appears on the paper slip and part of the signature on the brown paper. The Lower Appellate Court has taken the view that this pro-cedure is admitted by the accused. He has also accepted that the defence counsel did not cross-examine the Food Inspector on this aspect and did no suggest to him that he had omitted to obtain the “signature” of the accused as required. In my opinion, the said criticism by the lower appellate conrt is totally mis-placed. In proof that the procedure has been correctly followed the burden is entirely on the prosecuting agency and not on the accused It was for the Food Inspector to establish by cogent evidence or at least by producing the other two samples which were sent by him simultaneously to the Local Health Authority. But the same has not been done in this case It is but natural that the counsel for the defence did not bother to put any questions to the Food Inspector in that regard. As held by our High Court in Stale of Punjab v. Rajkumar, 1983 (II) FAC 200, the observance of Rule 16 is mandatory in nature and non-compliance thereof will certainly render the case of the accused open for benefit of doubt.
14. It was contended on behalf of the applicant that the Food Inspector is duty bound to have two independent panchas with him at the time of taking samples and sealing the samples. Apparently, the Food Inspector did have 2 panchas with him at the material time. But in evidence at the trial he tendered only one Panch as a witness. The said panch has turned hostile and is of no assistance to corroborate the version of the Food Inspector The other panch, for reasons best known to the prosecution has not been tendered in the witness box. However, this submission need not detain us any longer and is not necessary to be answered, inasmuch as I have already found that the sanction granting consent for prosecution under Ex. 39 is itself vague and defective rendering the trial to be vitiated. I have also found that Rule 16 framed under the Food Adulteration Act is mandatory in nature and there is no proof of its strict compliance.
15. Lastly, there is one more submission on behalf of the applicant which needs consideration. Shri Kanhe for the applicant has criticised Pub-he Analyst's report Ex. 36. Ex. 36 shows that the sample of food viz. Mustrad
seeds was received in a duly sealed condition for analysis on 27-1-1979. It further shows that the Public analyst had caused it to be analysed and found out the result of the analysis. It is clear therefrom that the Public Analyst had not himself analysed the sample. It is also not stated as to who had analysed the sample and on whose directions. Further, it does not show the date on which it was analysed. The only date appearing on it is the date on which the report was supplied i.e. 6-3-1979. It is not clear from the said report as to when during 27-1-1979 to 1-3-1979 the sample was analysed. Apart from these irregularities, the analysis report shows that there was extraneous matter present, out of which organic matter was 0.13% while inorganic matter was 2.82%. In so far as these percentages are required under the Rules, they have to be by weight and not by volume. This report does not mention whether the percentages are taken by weight or by volume. There is one more infirmity according to him, and it is in respect of opinion of the Public Analyst at the end of the report. The opinion only states that the sample of mustard seeds contain inorganic extraneous matter more than 2% and does not conform to the standard of mustard seeds as per Prevention of Food Adulteration Rules, 1955. It is to be borne in mind that under Sectiod 2—(ia)—(e)—(1) and (m) adulterated food could be one if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability which renders it injurious to health. Under sub-clause (m) such article could be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities riot within the prescribed limits of variability, but which does not render it injurious to health.
16. It is imperative in my opinion that the Public Analyst must find out when a sample falls below the prescribed standard or its constituents are present in quantities not within prescribed limits of variability whether the said adulterated sample renders it injurious to human health or whether it does not render it injurious to public health. The present report of Public Analyst at Ex-38 is silent on this question and, in my opinion, such report which is vague and defective cannot form the basis for any conviction. I am supported in my view by the decision of the Madhya Pradesh High Court in the case of Gaffar Khan v. State of Madhya Pradesh, reported in 1984 (I) F.A.C. 79.
17. For all these reasons, therefore, I am of the opinion that the mandatory procedure has been neglected. Public Analyst's report is vague and even otherwise the opinion given does not lay down the quality of adulteration as required under Section 2—(ia)—(I) or (m) and last but not the least, the sanction for prosecution under Ex. 39 is also invalid. The conviction of the applicant on the basis of these materials cannot be sustained. Both the courts below have erred in taking the proper view and appreciation of the evidence.
18. As a result, I have no hesitation to allow the Revision Application and set aside both the judgments of the courts below. Revision is allowed, conviction and sentence imposed upon the applicant are quashed and set aside. Applicant's bail bonds shall stand discharged and fine if paid be refunded to him.
19. Revision allowed.
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