FOOD INSPECTOR v. GOVINDAN — 1978 DIGILAW 149 (KER)

Judgment :- 1. This appeal filed by the State challenges an order of acquittal of the respondent, the first accused, in a case under the Prevention of Food Adulteration Act, hereinafter called 'the Act', passed by the Additional Sessions Judge, Tellicherry, in Crl. Appeal No. 94 of 1977. 2. The case against the respondent was that at 9.15 a.m. on April 4,1975, Pw. I, the Food Inspector, purchased 660 ml. buffalo Milk from the respondent out of a can containing 15 litres of buffalo milk, which he had brought for sale in the tea-shop run by one Kunhandan Nambiar, after complying with the due formalities under the Act and that the sample purchased was, on analysis, found to be adulterated. It was after serving Form VI notice on the respondent that Pw.l effected the purchase. Ex. P2 is the cash voucher issued by the respondent acknowledging the receipt of the price and Ext. P3 is the mahazar prepared on the spot attested by witnesses. As per Ex. P5, the report of the Public Analyst, the sample did not conform to the standard prescribed for buffalo milk and in addition it contained 35% of added water. 3. In support of the prosecution case, Pw. 1, the Food Inspector, Pw. 2, his peon and Pw. 3, the Executive Officer of the Panchayat, were examined and certain documents including Exts. P2, P3 and P5 were marked. 4. The plea of the respondent was one of bare denial. He had no witness to be examined on his side. 5. The trial court on a due consideration of the evidence adduced by the prosecution found it reliable, accepted the same and held the first accused guilty of the offence punishable under S.16 (1)(a)(i) read with S.7 (1) of the Act, and convicted and sentenced him thereunder to suffer simple imprisonment for six months and to pay a fine of Rs. 1000/-or in default to suffer simple imprisonment for four months. The second accused who was said to be the owner of the milk was acquitted. 6. On appeal filed by the respondent, the learned Additional Sessions Judge acquitted him on the only ground that the Food Inspector had not complied with R.18 of the Rules framed under the Act and therefore "it cannot be held that there was sale of adulterated milk". 7. 6. On appeal filed by the respondent, the learned Additional Sessions Judge acquitted him on the only ground that the Food Inspector had not complied with R.18 of the Rules framed under the Act and therefore "it cannot be held that there was sale of adulterated milk". 7. The procedure to be followed in taking samples of an article of food and sending them to the Public Analyst is laid down in S.11 of the Act and R.14 to 22 of the Prevention of Food Adulteration Rules. R.18 reads: "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". The object of R.18 is mainly to secure a proper identification of the sample and also to prevent tampering with the sample by ensuring accuracy of the seal or the sample sent to the Public Analyst by comparison with the impression of the seal sent by the Food Inspector. The use of the word "shall" in R.18 does not make it necessarily mandatory, although it may indicate on its face that an imperative duty is cast on the Food Inspector. While considering whether this rule is mandatory or directory, the whole purpose and context of this provision has to be borne in mind. The very object of the relevant provisions in the Act is to ascertain by a correct and proper analysis as to whether an article of food sent for analysis was adulterated or not and to secure the conviction of an accused person dealing in adulterated articles of food. It may not be proper to discard the report of a Public Analyst merely on the ground that this rule has not been strictly complied with. , 8. By virtue of S.13 (5) of the Act, the report of the Public Analyst is per se evidence. R.7 and 18 have to be read together. R.7 speaks of the duties of the Public Analyst. , 8. By virtue of S.13 (5) of the Act, the report of the Public Analyst is per se evidence. R.7 and 18 have to be read together. R.7 speaks of the duties of the Public Analyst. Under R.7, the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression of the seal sent to him separately by the Food Inspector and he has to deliver within a period of sixty days of the receipt of the sample for analysis a report of the result of the analysis in Form No. III. Besides certifying the result of the analysis, Public Analyst has to state in this Form whether the sample was received properly sealed and fastened, whether the seal was in tact and unbroken and also whether the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the same was in a fit condition for analysis. These facts contained in the report also constitute evidence under S.13 (5) of the Act. No doubt whether this evidence is reliable or not is for the court to decide. When it has been shown by acceptable evidence that there was sampling, sealing and fastening by the Food Inspector of the sample purchased by him and that the seal was found intact by the Public Analyst, the court may presume that the acts of the Food Inspector have been performed in accordance with prescribed form and procedure. (See Food Inspector, Cannanore Municipality v. P. Kannan 1966 Crl L. J. 416). 9. In State of Kerala v. Ramakrishnan Nair (1965 KLT. 402) this Court held that when there is the report of the Public Analyst that the seals were found intact, it has to be presumed that he compared the seal with the specimen seal. 10. In Subbayyan v. State 1968 KLT. 909: (AIR. 1968 Ker. 9. In State of Kerala v. Ramakrishnan Nair (1965 KLT. 402) this Court held that when there is the report of the Public Analyst that the seals were found intact, it has to be presumed that he compared the seal with the specimen seal. 10. In Subbayyan v. State 1968 KLT. 909: (AIR. 1968 Ker. 330) a Division Bench of this Court held that it will be presumed that a Public Analyst who caused a sample sent by a Food Inspector to be analysed and furnished a report in Form III, compared the seal on the container and outer cover with the specimen impression received by him, before the analysis was made and that if on comparison he found that the seal was not intact, he would not have caused the sample to be analysed but would have returned it to the Food Inspector reporting the matter. It was also held that when the Public Analyst is required by the rule to compare the seal on the container and the outer cover with the specimen impression and note the condition of seal thereon, a certification by him that he found the seal intact meant that, on comparison, he found the seal on the container and the outer cover untouched and unimpaired. 11. In State of Kerala v. Mammu Musaliar (1974 KLT. 792 (FB)) a Full Bench of this Court had occasion to examine R.7,17 and 18 while considering a contention whether the prosecution was bad for the non-production of the copy of the memorandum along with which the sample was sent to the Public Analyst. Under R.17, while sending the container of sample for analysis, the Food Inspector has to enclose a memorandum in Form VII in an outer cover addressed to the Analyst. This memorandum, among other things, has to state the member of the sample, the nature of the article submitted for analysis and that a copy of this memo and specimen impression of the seal used to seal the packet of sample was being sent separately. In the case cited above, after referring to Ext. P4, the report of the Analyst in Form III in that case, it was observed as follows: "From what has been stated in Ex. In the case cited above, after referring to Ext. P4, the report of the Analyst in Form III in that case, it was observed as follows: "From what has been stated in Ex. P4 certificate it is clear that the bottle sent for analysis by Pw.1 bore sample No. 10 and that on a comparison of the seal fixed on the container of the sample it was found to tally with the specimen impression of the seal separately sent by the Food Inspector and that the presumption under S.114 of the Evidence Act is that official duties are performed regularly". 12. In Kassim Kunju Pookunju v. Ramakrishna Pillai (1969 KLT. 50) the Supreme Court while dealing with the contention that R.18 has been violated in as much as it has not been proved that the specimen impression of the seal used had been sent to the Public Analyst, observed as follows: "Under R.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 analysis. The High Court considered that it must be presumed that Public Analyst acted in accordance with the rules and he must have compared the specimen impression received by him with the seal on the container." "We do not find any error in the decision of the High Court on the above point." 13. The burden of proving that the sample analysed by the Public Analyst is the same sent by the Food Inspector is on the prosecution; but it cannot be said that the report of the Public Analyst is not admissible in evidence because the prosecution has failed to prove beyond reasonable doubt that R.7 and 18 have been strictly complied with. In the absence of any provision in the statute under which these rules have been framed, that certain requirements and regulations have to be complied with before the report of a Public Analyst could be admitted in evidence, a report of the Public Analyst is admissible in evidence without any formal proof and the presumption arising under S.114(e) of the Evidence Act applies to it. This is no doubt a rebuttable presumption. Reference may be made in this regard to Shambhoo Narain v. Motilal (1971 Cri. L. J. 1650), State v. Chhotekhan (FB) (AIR. This is no doubt a rebuttable presumption. Reference may be made in this regard to Shambhoo Narain v. Motilal (1971 Cri. L. J. 1650), State v. Chhotekhan (FB) (AIR. 1970 Madhya Pradesh 29), Satrugha Behera v. Pun Municipality (1968 Cri. L. J.163), Kamal Singh v. State (1957 Allahabad Law Journal 89) and N.S. Adhikari v. Ram Phal (1969 Allahabad Law Journal 957). 14. While construing the relevant rules, courts have to bear in mind the intention and the object of the legislation and the consequences which would follow from interpreting the relevant rule one way or the other. While the courts have to zealously protect the rights and liberties of the innocent, the relevant rules have to be construed in such a way as to promote the real aim and object of the legislation without permitting persons within its purview to escape thereby giving undue advantage to the guilty. Having given due regard to all these aspects and those adverted to in the previous paragraphs, I am of the view that R.18 is directory and what is required is only substantial compliance and not strict compliance. All the same, this rule should be complied with by the Food Inspectors and they should remember that these rules are meant to be observed and substantially complied with. 15. In the case on hand, there is satisfactory evidence that R.18 has been complied with by Pw.1, the Food Inspector. Pw.1 has sworn that it was in accordance with the provisions of the Act that he took the sample, divided the same into three equal parts, that one of the parts was given to the accused along with a copy of the memorandum, that one part of the sample was sent to the Public Analyst enclosing a memorandum in Form VII and that a copy of the memorandum and a specimen impression of the seal was sent to the Public Analyst separately by registered parcel and that Ex. P4 was the office copy of the memorandum so sent to the Public Analyst. He has also stated that the postal receipt has been kept in the office for the purpose of audit. The report of the Public Analyst, Ex. P4 was the office copy of the memorandum so sent to the Public Analyst. He has also stated that the postal receipt has been kept in the office for the purpose of audit. The report of the Public Analyst, Ex. P5, shows that the sample of buffalo milk bearing mark No. 2 for analysis which was properly sealed and fastened was received by him and that he found the seal intact and unbroken and that the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and that the sample was in a condition fit for analysis. This corroborates the evidence of Pw.1 on the point. But it was on the sole ground that postal acknowledgment of the registered parcel has not been produced before the court that the appellate court found fault with the prosecution and held that R.18 has been violated by Pw.1. In the light of the evidence referred to above and also the presumption arising under S.114 of the Evidence Act, it has to be held that the conclusion of the appellate court is wrong and the finding that there was non-compliance of R.18 and therefore "it cannot be held that there was sale of adulterated milk", cannot be sustained. It is regrettable that the appellate court as well as the counsel appearing on both sides, particularly the Public Prosecutor, have lost sight of the decisions of this Court including a recent decision of a Full Bench on the matter. 16. In the light of the evidence of Pw.1 coupled with the statements contained in Ex. P5, it has to be held that there was strict compliance of R.18 and no prejudice has been caused to the accused on any account in this respect. The acquittal of the respondent on this ground is therefore wrong and has to be interfered with. 17. But the learned advocate appearing for the respondent rightly pointed out that the appellate court has not at all re-appraised the evidence of Pws.1 and 2 regarding the purchase of the milk from the first accused and that it has abdicated its powers as an appellate court by its failure to consider the appeal on merits. 17. But the learned advocate appearing for the respondent rightly pointed out that the appellate court has not at all re-appraised the evidence of Pws.1 and 2 regarding the purchase of the milk from the first accused and that it has abdicated its powers as an appellate court by its failure to consider the appeal on merits. The counsel also submitted that his client has been " deprived of a valuable right of his case being considered on merits by the appellate court which is a final court of fact and therefore it is only just that the case should be sent back to the appellate court for disposal of the appeal on merits. I find that there is considerable force in the contentions raised on behalf of the respondent. There has not been any discussion or consideration of the evidence relating to the purchase of the sample from the first accused and in the circumstances, in the interest of justice, it is only fair and proper that the case should be sent back to the appellate court for disposal on merits. In the result the order of acquittal is set aside and the appellate court is directed to restore the appeal to file and dispose of the same afresh on merits in accordance with law and in the light of this judgment. Allowed.