Guneshwar Singh v. Mukundi Sao — 1975 DIGILAW 62 (PAT)

B.P. Jha, J. This is an appeal against the judgment of acquittal under section 417 (3) of the Code of Criminal Procedure. 1898. by the District Medical Officer of Health, District Board, Patna (complainant). 2. Briefly stated the facts are these: On 15.6.67, P.W. 1, the Food Inspector visited the shop of the respondents along with P.Ws. 2 and 3. Respondent no. 1 Mukundi Sao was present at the shop. The shop in question is in the name of respondent no.2 Lal Babu Sao. Mukundi Sao is the father of Lal Babu Sao. P. W. 1 served a notice (Ext.2) upon Mukundi Sao that he intended to take sample; Ext. 2/1 is the signature of Mukundi Sao on the notice. The evidence of P. Ws. 1 and 2 disclosed that P. W. 1 purchased 360 grams of Haldi from the shop of respondent no. 2. The Food Inspector divided the Haldi in three equal parts. He gave one of the sealed packets containing Haldi to Mukundi Sao and Mukundi Sao gave a receipt for the price and sealed packet (Ext. 3.) One sealed packet was sent to the Public Analyst and the third was produced in court. The Public Analyst submitted his report (Ext. 4) dated the 8th July, 1967. In his opinion, the sample of Haldi was adulterated due to its containing excess lead. 3. On these facts, the trial court acquitted the respondents for the simple reason that the prosecution failed to prove the compliance with rule 18 of the Prevention of Food Adulteration Rule, 1955 (hereinafter to be referred to as the Rules). It is relevant to quote rule 18 : "18. Memorandum and impression of seal to be sent separately: A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the public Analyst separately by registered post or delivered to him or to any person authorised by him." On a perusal of this rule 18, it is clear that the prosecution is requited to prove that a copy of the memorandum and specimen impression of the seal used to seal the packet were sent to the Public Analyst separately either by registered post or the same were delivered to him or to any person authorised by him. In the present case the trial court held that there is no evidence that the specimen impression of the seal used to seal the packet was sent separately to the Public Analyst either by registered post or delivered to him or to any person authorised by him. In this connection, reference was made to the evidence of P.W. 1. P.W. 1 in paragraph 3 of his evidence stated : “This is the memorandum which I sent to Public Analyst (Ext. 8)." Ext. 8 is the memorandum sent to the Public Analyst, which is as follows: "From B. P. Sharma, of I.C.D. Block, To Public Analyst, Govt. of Bihar. No. Memorandum This sample described below is sent herewith for analysis...... clause (b) of sub-section (i) of section 10 and clause (c) (ii) of sub-section (i) of section 11 of the Prevention of Food Adulteration Act, 1954. 1. Serial no. of sample 2. Name of the stockist-Makundi Sao. 3. Date and place of collection : Poon-poon on 15.6.67. 4. Nature of article submitted for analysis : Haldi. 5. Nature and quantity of preventive added to the sample: Nil 6. A copy of this memo and specimen impression of the seal used to seal the packet is being sent separately by registered cover by hand. Sd/- B.P. Sharma Food Inspector, Area-C.D. Block, Poonpoon. 15.6.67." The evidence of P.W. 1 disclosed that he sent the memorandum to the public Analyst. The prosecution was further required to prove that the memorandum was sent either by registered post or it was delivered directly to the Public Analyst or the same was delivered to any person authorised by the Public Analyst. In the present case there is no reliable evidence to disclose that the memorandum was sent either by registered post to the Public Analyst or delivered to him directly or to any person authorised by the Public Analyst. 4. Learned Counsel for the respondents contends that in the present case there is no evidence to prove that there was any compliance with rule 18 of the Rule. P.W. 1. did not state that the memorandum was sent either by registered post or was delivered to the Public Analyst directly or the same was' delivered to any person authorised by the Public Analyst. P.W. 1. did not state that the memorandum was sent either by registered post or was delivered to the Public Analyst directly or the same was' delivered to any person authorised by the Public Analyst. In the present case, there is no reliable evidence to suggest that the specimen impression of the seal used to seal the packet was sent to the Public Analyst either by registered post or was delivered to him or to any person authorised by him. In this circumstance, I hold that the prosecution has failed to prove compliance with rule 18 of the Rules. 5. In this connection learned Counsel for the appellant referred to the report submitted by the Public Analyst. The report (Ext. 4) is as follows :- "Report by the Public Analyst Report no. 3438. I hereby certify that I, Dr. C. S. Prasad, Public Analyst for the State of Bihar duly appointed under the provision of the Prevention of Food Adulteration Act, 1954, received on the 20th day of June, 1967 from the Food Inspector....C.D. Block, Poonpoon, Patna, a sample of Haldi (no. 7) purchased from Shri Makundi Sao for analysis, properly sealed and fastened and that I found the seal intact and unbroken. The seal fixed on the content of the sample tallied with the seal impression sent by the Food Inspector and the sample was in a condition fit for analysts. I further certify that I analysed the aforementioned sample and declare the result of my analysis as follows : Lead .. 50 parts per million The characteristic boric acid test-Positive. Total ash - 6.0% Ash insoluble in HCL - 1. 3% Grit - X Miscroscopy-Foreign starch not detected. I am of the opinion that the sample of Haldi is adulterated due to its containing excess lead. Signed this 8th day of July, 1967. Address: Public Health institute, Patna-4 Sd. C. S. Prasad (Signature) Public Analyst, Bihar.” On the basis of the report, the learned Counsel for the appellant contends that the specimen impression of the seal was sent by the Food Inspector. It only proves that the Food Inspector sent the specimen seal to the Public Analyst. Address: Public Health institute, Patna-4 Sd. C. S. Prasad (Signature) Public Analyst, Bihar.” On the basis of the report, the learned Counsel for the appellant contends that the specimen impression of the seal was sent by the Food Inspector. It only proves that the Food Inspector sent the specimen seal to the Public Analyst. The prosecution is further required to prove that the specimen seal was sent either by registered post or the same was directly handed over to the Public Analyst or the specimen seal was handed over to a person authorised by the Public Analyst. In the present case there is no evidence to show that a copy of the memorandum and specimen impression the seal were sent separately to the Public Analyst either by registered post or it was directly handed over to him or it was handed over to any person authorised by the Public Analyst. In this circumstance, I hold that the prosecution has failed to prove the compliance with the mandatory provision of rule 18. In this connection, learned Counsel for the respondents relied on a Division Bench decision of this Court in Daitari Mahto V. The State 1969 P.L.J.R 529. In that case it was held that rules 7 and 18 of the Rules are mandatory in nature and non-compliance with the same makes the conviction illegal. Relying on the decision of the Division Bench I uphold the judgment of acquittal passed by the trial court. 6. Learned Counsel for the appellant cited an unreported decision of the Supreme Court dated 2nd December, 1968 in Criminal Appeal 29 of 1968 (Kassim Kunju Poo Kunju and another vs. K.K. Ramakrishna Pillai and another) 1969 C.A.R. Vol. II 15. In my opinion, the Supreme Court decision does not apply to the facts of this case. In the Supreme Court case there was evidence of the Food Inspector that he entrusted the memorandum and the specimen impression of the seal to the Panchayat Officer who sent the same by registered post to the Public Analyst. II 15. In my opinion, the Supreme Court decision does not apply to the facts of this case. In the Supreme Court case there was evidence of the Food Inspector that he entrusted the memorandum and the specimen impression of the seal to the Panchayat Officer who sent the same by registered post to the Public Analyst. It is relevant to quote the fact as stated in the judgment as follows :- "The part of the sample which was to be sent to the Public Analyst and the memorandum and the specimen impression of the seal were entrusted according to the evidence of the Food Inspector, to the Panchayat Officer who sent them by registered post." In that case their Lordships did not consider as to whether the prosecution was required to prove the compliance with the provisions of rule 18. In that case rule 18 was complied with because the Food Inspector proved that the memorandum and the specimen impression were entrusted to the Panchayat Officer who sent them by registered post. Their Lordships have not held in that case that the prosecution is not required to prove the compliance with rule 18. In that case the grievance of the appellant was that it was not mentioned in the report of the Public Analyst that he compared .the specimen impression of the seal with the seal of the packet of the sample. In that connection the High Court held that the official acts must be presumed to have been regularly performed. It is necessary to quote the relevant passage from the judgment of the Supreme Court which runs as follows :- "The contention which was pressed and which has been reiterated before us is that it is no where stated in Ext. P.9 that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. The High Court relied on the principle that official acts must be presumed to have been regularly performed. 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 relied on the principle that official acts must be presumed to have been regularly performed. 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 must have acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container." In my opinion, the facts of the present case are quite distinct from the facts of the case of the Supreme Court. In the present case the contention of the Counsel for the respondents is that the prosecution failed to prove the compliance with rule 18. This point was not raised before the Supreme Court. It is for this reason that I hold that the decision of the Supreme Court docs not apply to this case. 7. In the result, the appeal fails and is dismissed. Appeal dismissed.