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1989 DIGILAW 377 (KER)

Food Inspector v. Abooty

1989-09-06

KRISHNAMOORTHY, U.L.BHAT

body1989
Judgment :- 1. Criminal Appeal No.246 of 1986 is filed by the Food Inspector of Tellicherry Municipality against the judgment of acquittal in C.C.No.110 of 1983 on the file of the Additional Judicial First Class Magistrate-I, Tellicherry. Criminal R.P.No.444 of 1987 is filed by the first accused in C.C.No.127 of 1984 on the file of the same court against the conviction and sentence entered against him by the magistrate which has been confirmed by the Sessions Judge in appeal. Criminal R.P. No.464 of 1987 is filed by the accused in C.C.No.225 of 1983 of the same court against the conviction and sentence entered against him which has been confirmed by the Sessions Court in Crl. Appeal No.293 of 1985. The Criminal Appeal and the Revision Petitions have been referred to Division bench by the learned single judges who heard the cases. Reference order in Crl. Appeal No.246 of 1986 doubts the correctness of the decisions in Food Inspector v. Jose (1987 (2) KLT. 190) and Food Inspector v. Vidhyadharan (1987 (1) KLT 414). The revisions have been referred to Division Bench since they involve the same questions. 2. C.C.No.110 of 1983 arose out of a complaint filed by the Food Inspector against the accused therein, trader in spices and condiments doing business in the name "T.M. Masala Works". On 19-4-1983 Food Inspector in accordance with law purchased sample of 600 grams of corainder powder exhibited for sale in the shop. The article was in packets containing 100 grams each. Six packets were purchased and the packets were divided into three parts and treated as parts of the sample. In due course the Public Analyst who received the sample part from the Food Inspector sent Ext.P12 report opining that the sample did not conform to the standards prescribed in the Prevention of Food Adulteration Rules (for short'the Rules') for corainder powder and therefore was adulterated. At the instance of the accused another pan of the sample consisting of two packets was sent by the court to the Director of Central Food Laboratory and he submitted Ext.C-1 report indicating that the part of the sample was adulterated as it did not conform to the standards prescribed in the Rules. At the instance of the accused another pan of the sample consisting of two packets was sent by the court to the Director of Central Food Laboratory and he submitted Ext.C-1 report indicating that the part of the sample was adulterated as it did not conform to the standards prescribed in the Rules. The trial court acting on the evidence of P.Ws.1 and 2 and partly on the evidence of P.W.3, hostile witness, held that Food Inspector did purchase 600 grams of coriander powder from the accused. The trial court was of the opinion that the Food Inspector purported to follow the procedure prescribed in R.22-A of the Rules and did not open the packets or mix the contents before dividing the sample into three parts. The trial court held that R.22-A would not apply since the packets are not "sealed containers", but only closed containers and therefore R.22-A could not have been followed. Accordingly the accused was given the benefit of doubt and acquitted following the decision of a learned single judge of this court in State of Kerala v. Balakrishnan (1972 KLT 964). The acquittal is now challenged in the appeal. 3. C.C.No.127 of 1984 arose out of a complaint filed by the Food Inspector against the first accused who was a grocery shop keeper and the second accused, the alleged supplier of the article to the first accused. The Food Inspector purchased 300 grams of coffee-chicory in six separate packets, opened the packets, mixed the contents and divided the same into three equal parts. One part on analysis by the Public Analyst was found to be adulterated as it did not conform to the standards prescribed for coffee chicory in the Rules. The court acquitted the second accused on the ground that there is no evidence to show that the article purchased by the Food Inspector had been sold to the first accused by the second accused. However, the court accepted the prosecution case regarding the first accused and convicted and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- and in default to undergo rigorous imprisonment for another six months. The appeal having been dismissed by the Sessions Court, first accused has filed Crl.R.P.No.444 of 1987. 4. However, the court accepted the prosecution case regarding the first accused and convicted and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- and in default to undergo rigorous imprisonment for another six months. The appeal having been dismissed by the Sessions Court, first accused has filed Crl.R.P.No.444 of 1987. 4. C.C.No.225 of 1983 arose out of a complaint filed by the Food Inspector against a grocery shop keeper from whom the Food Inspector purchased 450 grams of Deluxe Blend Coffee in 18 packets. The Food Inspector opened the packets, mixed the contents and divided the same into three equal parts. One part sent to the Public, Analyst was duly analysed and the Public Analyst reported that the sample did not conform to the standards prescribed for coffee-chicory (blend coffee) in the Rules and was therefore adulterated. Accused contended that he had purchased the article in question from a concern by name Deluxe French Coffee under a bill which contained warranty and the bill was handed over to the Food Inspector. The trial court accepted the prosecution case and rejected the defence case and convicted and sentenced the accused to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-and in default to undergo rigorous imprisonment for another six months. The appellate court confirmed the conviction, but reduced the sentence to rigorous imprisonment for six months and fine of Rs.1,000/-and in default to undergo rigorous imprisonment for six months. The conviction and sentence are challenged in Crl.R.P.464 of 1987. 5. We will first deal with the common questions of law arising for consideration before dealing with the facts of each case. Learned counsel who appears for the respondent in Crl. The conviction and sentence are challenged in Crl.R.P.464 of 1987. 5. We will first deal with the common questions of law arising for consideration before dealing with the facts of each case. Learned counsel who appears for the respondent in Crl. A.No.246 of 1986 contends that contents of sample purchased by the Food Inspector must be homogeneous and for that purpose mixing of the sample before division into three parts is necessary except in cases covered by R.22-A of the Rules, that R.22-A is mandatory and can be applied only when the conditions stipulated therein are strictly satisfied and the existence of the conditions is strictly proved and that polythene packets purchased by the Food Inspector are not shown to be sealed containers and did not contain identical label declaration and R.22-A was not attracted and the Food Inspector ought to have opened the packets and mixed the contents before dividing into three parts and since that was not done no weight can be attached to the report or certificate. Learned counsel who appear for the revision petitioners in the two revision petitions contends that in those two cases the packets purchased by the Food Inspector were sealed containers and conform to the requirements of R.22-A which is mandatory and the Food Inspector should have followed the procedure prescribed in the Rule, but did not do so and opened the packets and mixed the contents which should not have been done and therefore the result of the analysis cannot be accepted. Learned counsel who appears for the Food Inspector in the three cases rebutted these contentions. According to him, mixing of the sample is not required by the Prevention of Food Adulteration Act (for short'the Act') or the Rules and R.22-A is not mandatory but only an enabling provision which is directory in nature, and since no prejudice has been shown to have been caused to the accused persons, conviction in the two cases is justified and the acquittal in one case is to be reversed. Learned counsel for the Food Inspector seeks re-consideration of the decision in Food Inspector v. Jose (1987 (2) K.L.T. 190). 6. Learned counsel appearing for the accused contend that in the three cases only microscopic examination of the part of the sample had been conducted and the conviction cannot be based on such examination without appropriate chemical tests being conducted. Learned counsel for the Food Inspector seeks re-consideration of the decision in Food Inspector v. Jose (1987 (2) K.L.T. 190). 6. Learned counsel appearing for the accused contend that in the three cases only microscopic examination of the part of the sample had been conducted and the conviction cannot be based on such examination without appropriate chemical tests being conducted. He relies on the decision of this court in Food Inspector v. Vidhyadharan (1987 (1) K.L.T. 416) which according to the learned counsel for the Food Inspector requires re-consideration. 7. The Act is intended to serve a social purpose, namely, to punish offenders who indulge in crimes of great consequence to the health and life of the people. As observed by a Full Bench of this court in Food Inspector v. Prabhakaran (1982 K.L.T. 809) no provision in an enactment of this nature should be read in such way as to search for and find a purely technical reason for dropping the penal proceedings. The Supreme Court in Muralidhar Meghraj Loya v. State of Maharashtra (A.I.R. 1975 S.C.1929) observed: "the social mission of Food Laws should inform the interpretative process so that the legal blow may fall on every adulterator. Any narrow and pedantic, literal and lexical loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged." In Dalchand v. Municipal Corporation, Bhopal (A.I.R. 1983 S.C. 303) the Supreme Court explained the approach to the controversy regarding the mandatory or directory nature of the provision in the following manner: "The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute." A Division Bench of this court in Kunhamu v. Food Inspector (1989 (1) K.L.T. 707) observed after considering the above decisions: "The provisions of the Act and the Rules referred to earlier have a specific design and object and that is to ensure punishment to those responsible for endangering public health No court can presume that any particular provision is mandatory in the sense that failure of strict observance of the same will per se vitiate the sampling, render the report of the Analyst unreliable. It appears to us that generally speaking, considering the object, design and purpose of the provisions of the Act and Rules referred to earlier, substantial and fair compliance with the provisions would be sufficient." We will now proceed to consider the questions arising in the light of the broad guidelines referred to above. 8. S.10 of the Act lays down the powers of the Food Inspector. The Food Inspector shall have, inter alia, power to take samples of any article of food from the persons specified in clause (a) of sub-section (1) and to send such sample for analysis to the Public Analyst. S.11 lays down the procedure to be followed by the Food Inspectors. When the Food Inspector takes sample of food for analysis, he shall, according to clause (b) of sub-section (1), "except in special cases provided by the Rules under this Act, divide the sample then and there into three parts." S.23 deals with rule making power of the Central Government. When the Food Inspector takes sample of food for analysis, he shall, according to clause (b) of sub-section (1), "except in special cases provided by the Rules under this Act, divide the sample then and there into three parts." S.23 deals with rule making power of the Central Government. According to clause (d) of sub-section (1-A) Central Government may make rules restricting the packing and labelling of any article of food and the design of any such package or label with a view to prevent the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to prevent adulteration. According to clause (e) Central Government may define the powers and duties of Food Inspectors and Public Analysts. 9. The sample has to be divided into three parts to protect public interest as well as the interest of the accused. One part has to be sent by the Food Inspector to the Public Analyst. The Food Inspector has to send the remaining two parts to the local health authority. Where part of the sample sent to the Public Analyst is lost or damaged, according to sub-section (2) of S.11, the local health authority on requisition made by the Public Analyst or the Food Inspector has to despatch one of the remaining parts of the sample to the Public Analyst for analysis. S.13(2) confers right on the accused to request the court to send one of the remaining parts to the Director, Central Food Laboratory for analysis. Where the part of the sample sent by the Court to the Director, Central Food Laboratory is lost or damaged, the court under the proviso to sub-section (2-C) of S.13 shall require the local health authority to forward one part of the sample, if any, retained to the court and after receiving it proceed to send it to the Director of Central Food Laboratory. Under sub-section (2-E) of S.13 where the local health authority is of opinion that the report of the Public Analyst is erroneous, the local health authority shall forward one of the parts kept by it to any other Public Analyst for analysis. Under sub-section (2-E) of S.13 where the local health authority is of opinion that the report of the Public Analyst is erroneous, the local health authority shall forward one of the parts kept by it to any other Public Analyst for analysis. The policy behind the above provisions is to ensure that a proper report of the Public Analyst is secured in public interest and to ensure that the accused has opportunity to have one part of the sample analysed at the Central Food Laboratory. The division of the sample into three parts is intended to safeguard public interest and the interest of the accused. 10. Neither S.10 nor S.11 of the Act expressly require the sample to be homogeneous or the three parts of the sample to be similar in quality. But considering the purpose of division of the sample into three parts, it appears reasonable to conclude that three parts roust be similar in nature or homogeneous. This is to ensure that the Public Analyst and the Central Food Laboratory analyse parts of the sample which are similar in nature and content. At the same time, note has to be taken of the fact that neither the Act nor the Rules specifically enjoin the Food Inspector to conduct any particular operation or adopt any particular procedure in order to render the sample homogeneous. That is evidently because in a variety of cases the Food Inspector and the court can presume the sample to be homogeneous without any particular procedure being adopted by the Food Inspector. Several food articles like grains, condiments, biscuits, chocolates, butter etc. must be presumed to be homogeneous in nature. There may be articles like milk or curd containing fat contents where there is a possibility of homogeneity being disturbed when the article is allowed to rest for a long time. Even in such cases Food Inspector has no particular duty to ensure that the sample is representative of the entire stock exhibited in the shop for sale. See State of Kerala v. Alasserry Mohammed (ALR.1978 S.C.933). It is for the vendor who sells the sample to do whatever he thinks necessary in the ordinary course of commerce before parting with the sample. See State of Kerala v. Alasserry Mohammed (ALR.1978 S.C.933). It is for the vendor who sells the sample to do whatever he thinks necessary in the ordinary course of commerce before parting with the sample. See State of Kerala v. John (1978 K.L.T. 738), Alotious Wilson v. Food Inspector (1980 K.L.T. 834), Food Inspector v. Hassan & another (1982 K.L.T. 941) and Food Inspector v. Varghese (1986 K.L.T. 852). But after the purchase of the sample, in a few cases like curd or milk where there is a possibility of disturbance of homogeneity in certain special circumstances, the Food Inspector may have to adopt some procedure to ensure that the sample is homogeneous and the three parts are similar in nature. See Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma (A.I.R. 1983 S.C.176). Whether in a given case the court can presume that the sample was homogeneous or required the adoption of some procedure by the Food Inspector to render it homogeneous is a matter which has to be decided by the court in the facts and circumstances of each case. There can be no hard and fast rule in this regard. Therefore there may not be a proposition of law that in all cases the Food Inspector is required to mix the contents of the sample before dividing it into three equal parts. 11. The Punjab High Court in Bhagwandas v. The State (A.I.R. 1962 Punjab 419) dealt with a case of purchase of three bottles of aerated water by the Food Inspector who treated each bottle as the one part of the sample without opening the bottles and mixing the contents. The court held that that was an improper and illegal manner of obtaining a sample since the contents of the three bottles may not be uniform. The court held that the Rules do not provide for any special case as mentioned in S.11(1)(b) and suggested that the omission may be remedied. Soon thereafter the rule making authority incorporated R.22-A in the Rules. The court held that the Rules do not provide for any special case as mentioned in S.11(1)(b) and suggested that the omission may be remedied. Soon thereafter the rule making authority incorporated R.22-A in the Rules. The Rule reads thus: "22-A. Contents of one or more similar sealed containers having identical labels to constitute the quantity of a food sample - Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in R.22 shall be treated to be a part of the sample." Moidu, J. in Food Inspector v. Koyakutty (1972 K.L.T. 464) took the view that the rule was incorporated in pursuance of the above pronouncement. This view has been followed by Thomas, J. in Food Inspector v. Jose (1987 (2) K.L.T. 190). We find that Kader, J. in Food Inspector v. Cyriac (1984 KLT 231) made a slightly different approach following the decision in State of Punjab v. Devinda Kumar &others (AIR 1983 S.C. 545) and observed that R.22-A was promulgated for the purpose of overcoming an objection to the effect that the contents of the two or more sealed containers could not form parts of the same sample. The Supreme Court in the above case observed: "This rule (Rule 22-A) is enacted apparently to get over the difficulty that may arise in taking sample and dividing it into three parts as required in S.11(1)(b) of the Act where each sealed container containing the food in question contains a quantity less than the required quantity to be taken as sample for the purposes of S.11 read with R.22. R.22-A of the Rules was promulgated for the purpose of overcoming an objection to the effect that the contents of the two or more sealed containers could not form part of the same sample." 12. That R.22 is not mandatory has been held by the Supreme Court in State of Kerala v. Alasserry Mohammed (AIR 1978 S.C 933). R.22-B is only clarificatory of what is contained in R.22. This is held to be so by the Supreme Court in State of Punjab v. Devinda Kumar & others (AIR 1983 S.C. 545). R.22-A is only a corollary to R.22. R.22-B is only clarificatory of what is contained in R.22. This is held to be so by the Supreme Court in State of Punjab v. Devinda Kumar & others (AIR 1983 S.C. 545). R.22-A is only a corollary to R.22. The purpose of R.22-A, as indicated by the Supreme Court in the above decision, is to get over the difficulty that may arise in taking sample and dividing the same into three equal parts where each sealed container containing the article in question contains a quantity different from the required quantity to be taken and to overcome an objection to the effect that the contents of the two or more sealed containers could not form part of the same sample. In the generality of cases, where a sample is taken from a larger quantity in a container, it has to be presumed that the sample is homogeneous. This proposition may have special exception as in the cases of curd or milk which has been allowed to settle. Where the food article is sold in sealed containers, each containing only quantity equal to or less than that required for each part of the sample, there maybe practical difficulty for the Food Inspector in opening the containers and mixing the contents. It may be more practicable in such circumstances to purchase sufficient number of containers so as to make up the quantity requisite and treat adequate number of containers as one of the parts of the sample. It is to enable the Food Inspector to adopt this alternative procedure that R.22-A has been incorporated. It is only an enabling provision and nothing more. It is true that R.22A uses the word "shall", but the use of the word "shall" is not decisive of an intention to make the rule mandatory. Whether a rule is mandatory or otherwise depends on consideration of a variety of factors such as the object of the particular provision, the link between the purpose of the statute and the provision, the consequence of holding a provision to be mandatory or otherwise, the mischief sought to be avoided or prevented. The broad purpose of the statute is to curb, if not totally prevent, adulteration of food in the interest of public health. The object of R.22-A is to enable the Food Inspector to adopt alternative procedure in certain cases. The broad purpose of the statute is to curb, if not totally prevent, adulteration of food in the interest of public health. The object of R.22-A is to enable the Food Inspector to adopt alternative procedure in certain cases. To hold the provision mandatory would jeopardise public interest whenever the Food Inspector is careless to any extent or violates the provision of rule deliberately on account of improper motives. The provision is only corollary to R.22. Taking all these circumstances into consideration we are of opinion that R.22-A is not mandatory but directory. Even in a case where R.22-A could be made applicable, there is nothing in the Act or the Rules which prevents the Food Inspector from not following the procedure prescribed in R.22-A and to deal with the sample in the normal way. With great respect we disagree with the contrary view taken by the Allahabad High Court in State of U.P. v. Nanak Chand and others (1974 Crl.L.J. 870), Jyoti Swaroop v. State of U.P. (1978 F.A.J. 342), Nagar Swasthya Adhikari v. Basant (1979 (1) F.A.C. 37) and Saeed Ahmad v. State of U.P. (1987 F. A. J. 444) and by the Punjab and Haryana High Court in Amarnath v. State of Punjab (1982 (1) F.A.C. 36), Harish Kumar Pahwa v. State of Punjab (1982(2) F.A.C. 249) and Sushil Kumar v. State of Punjab (1982(2) F.A.C. 252). With respect we agree with the view taken in Food Inspector v. Cyriac (1984 KLT 231). 13. We will now consider under what circumstances the procedure prescribed in R.22-A can be adopted by the Food Inspector. The rule lays down two conditions, namely, (i) the article of food must be in sealed container and (ii) the sealed containers must have identical label declarations. There has been a serious controversy at the bar regarding the exact connotation of the words "sealed container". Learned counsel appearing for the respondent in Crl.A.246/86 would contend that the packets involved in that case are not sealed containers. Such a controversy came up for consideration before this court in State of Kerala v. Balakrishnan (1972 K.L.T. 964) where the Food Inspector purchased coffee powder in packets. There was nothing in the record to show that the packets were sealed containers. Such a controversy came up for consideration before this court in State of Kerala v. Balakrishnan (1972 K.L.T. 964) where the Food Inspector purchased coffee powder in packets. There was nothing in the record to show that the packets were sealed containers. The words "sealed container" have not been defined in the Act though "package" has been defined as box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed. Khalid, J. (as he then was) referred to the meaning of the word "sealed" appearing in Stroud's Judicial Dictionary, Third Edn. at page 2683 as "secured with any substance without the destruction of which the cork, plug or stopper cannot be withdrawn" and that appearing in Shorter Oxford English Dictionary as "a container which is so close that access to its contents is impossible without breaking the fastening". The word "substance" used in the former is what is meant by "fastening" used in the latter. The learned judge observed that while all sealed containers are closed containers, all closed containers may not be sealed containers and in the absence of material to show that the container in that case was sealed containers and in the absence of material to show that the container in that case was sealed container, R.22-A could not be invoked. Learned counsel appearing for the Food Inspector took the extreme stand that even if the article is not in sealed containers or the sealed containers have no identical label declaration R.22-A could be invoked. We are unable to agree. The Rule specifically gives power to the Food Inspector to adopt a particular procedure and lays down the conditions in the presence of which it could be invoked. That being so, the conditions have to be satisfied in order to render the provision applicable. 14. The word "sealed" used in the expression "sealed container" cannot be taken to mean seal affixed with wax or other material. A container may be closed with a cork, plug or stopper, if it is made of paper, polythene or cardboard or similar material it may be closed by folding one end and fastening it to some other part of the container. Cork, plug or stopper cannot be used in such a container. A container may be closed with a cork, plug or stopper, if it is made of paper, polythene or cardboard or similar material it may be closed by folding one end and fastening it to some other part of the container. Cork, plug or stopper cannot be used in such a container. Nevertheless, in order that such a container can be regarded as a closed container, it must be closed in such a manner that access to the contents would be impossible without breaking the fastening. If the access to the contents cannot be had without breaking the fastening, the container cannot be regarded as sealed container. 15. There is a controversy at the bar as to, the exact meaning of the words "identical label declaration". So far as we could see there is no provision in the Act or the Rules requiring a container or package to have a label in all cases. R.32 has been amended recently. The Rule as it stood at the time of the sampling in these cases merely indicated what should be printed or written in every label as is clear from the Rule which states "unless otherwise provided in these rules there shall be specified on every label" the name, trade name or description of food contained in the package (clause (a), the name and business address of the manufacturer or importer or vendor or packer (clause b), in cases of preservative or colouring agents a statement to that effect (clause c), the net weight or number or measure or volume of contents (clause d), batch number or code number (clause e) and month and year in which the commodity is manufactured or packed (clause (f)). The Supreme Court in Dwaraka Nath v. Municipal Corprn. of Delhi (AIR. 1971 (2) S.C.C 314 = AIR 1971 SC 1844) has held that R.32 (e) is ultra vires of the rule-making power of the Central Government. 16. R.33 deals with the language to be used and the particulars of declaration of the label. R.3435 and 36 lay down size and other particulars of declaration. R.38 to 41 lay down certain other requirements. R.42 deals with form of labels in cases specified therein namely, coffee chicory mixture, condensed milk or dried milk, fluid milk, hingra, light black pepper, masala etc. R.3435 and 36 lay down size and other particulars of declaration. R.38 to 41 lay down certain other requirements. R.42 deals with form of labels in cases specified therein namely, coffee chicory mixture, condensed milk or dried milk, fluid milk, hingra, light black pepper, masala etc. We notice that while coffee-chicory mixture is taken in by R.42, the Rule does not take in coriander powder. We find from the records that the labels in the packets of coffee-chicory mixture taken by the Food Inspector in the two cases dealt with in this judgment contained declaration as laid down in R.42-A. 17. As the Rules stood at the time of the sampling in these cases, except as laid down in R.42, there was no provision requiring the containers to contain label with particular type of declaration. Even otherwise the condition stipulated in R.22-A regarding the presence of identical label declaration cannot have any rigid or technical connotation. The purpose of requirement of identical label declaration is only to indicate to the Food Inspector and the Court about the identity of the nature and weight or volume of the contents of the container. If the labels contain declarations indicating that the containers contain the similar articles of particular weight or volume, certainly the Food Inspector can proceed on the basis that the contents of the several containers he has taken are similar to each other and the sample is homogeneous. No more particulars are required to indicate the similarity of the contents. It is pointed out that R.32 has since been amended and according to the rule as it stands at present every label must have declaration as indicated in the rule and that the declaration in the labels in the instant case do not satisfy the requirements of R.32. If that be so, that may entail prosecution by the Food Inspector for violation of R.32. The fact that manufacturer or vendor did not observe the requirements of R.32 is not relevant for the purpose of R.22-A. 18. Our attention has been invited to Package Commodities Regulation 0.1975 issued under the Essential Commodities Act and the Standard of Weights and Measures (Packaged Commodities) Rules, 1977. We do not think it necessary to consider these provisions for the purpose of these cases. 19. Our attention has been invited to Package Commodities Regulation 0.1975 issued under the Essential Commodities Act and the Standard of Weights and Measures (Packaged Commodities) Rules, 1977. We do not think it necessary to consider these provisions for the purpose of these cases. 19. In the decision in Food Inspector v. Jose (1987 (2) K.L.T. 190) by Thomas, J. the food article involved was coffee-chicory mixture. Though they were in packets, they were neither in sealed containers nor did any of them contain any label declaration so as to attract R.22-A. The food article being a mixture, it was found that the contents of packets must be mixed before dividing to make it homogeneous. The decision must be confined to the facts of the case. 20. The next question arising for consideration relates to the acceptability of the expert opinion in these cases. It is argued that certificate of the Director of Central Food Laboratory in C.C. No. 110 of 1983 and the reports of the Public Analyst in C.C.No.127 of 1984 and 225 of 1983 would indicate that the opinion is based merely on microscopic examination and that no chemical test has been performed and therefore the expert opinion cannot be accepted. For this purpose reliance is placed on the decision of a learned judge of this court in Food Inspector v. Vidhyadharan (1987 (1) K.L.T.414). The contents of the report of the Public Analyst in that case are not clear from the judgment. The case dealt with a sample of coriander powder. The standard prescribed for coriander powder in Appendix A.05.08.01 in the Rules is as follows: Powder obtained by grinding clean dried coriander fruits of Coriandrum sativum (L). It shall be in the form of a rough or fine powder. It shall conform to the following standards: Moisture Not more than 12.0 per cent by weight Total ash Not more than 7.0 percent by weight. It shall be in the form of a rough or fine powder. It shall conform to the following standards: Moisture Not more than 12.0 per cent by weight Total ash Not more than 7.0 percent by weight. Ash insoluble in dilute H.C1.Not more than 1.5 per cent by weight The judgment states with reference to the Public Analyst's report "Here P10 report clearly shows that the only examination conducted by the public analyst is the microscopic test which the Supreme Court found in a situation as in this case, is inadequate to come to the conclusion whether sample taken conforms to the standards prescribed." The Supreme Court decision referred to is the one in Jagdish Chandra v. State of U.P. (1982 (1) S.C.C.350). 21. One of us (Bhat, J.) had occasion to consider the decision in Crl.R.P. No. 371 of 1986 which dealt with a sample of coriander powder. The report of the Public Analyst in that case mentioned contents of moisture, total ash content and ash insoluble in dilute HC1. The test for coal-tar-dye was negative. It was held that the contents of the report showed clearly that Public Analyst had performed necessary chemical tests and the report was not based on microscopic examination. In Jagdish Chandra's case (1982 (1) S.CC 350) the sample of food article called "Dalchini" and the sample was found not to conform to standards prescribed for "Dalchini". The dispute arose whether the sample purchased was Dalchini or Chini Dalchini. There was evidence to show that Dalchini was a costly material while Chini Dalchini was a comparatively cheep material. The Public Analyst who was examined in court suited that the only test performed for analysing the sample was microscopic test and he did not have any procedure for subjecting the sample to microscopic examination. The standard prescribed for Dalchini refers to the percentage of ash insoluble in dilute Hydrochloric Acid. The Supreme Court concluded that determination of the identity of the article merely by microscopic examination and without performing any chemical test could not be relied upon. 22. Padmanabhan, J. had occasion to consider a similar question in Food Inspector v. Noor Mohammed (1989 (1) K.L.T. 76). The case dealt with a sample of cumin. The Supreme Court concluded that determination of the identity of the article merely by microscopic examination and without performing any chemical test could not be relied upon. 22. Padmanabhan, J. had occasion to consider a similar question in Food Inspector v. Noor Mohammed (1989 (1) K.L.T. 76). The case dealt with a sample of cumin. Dealing with the report in that case, Padmanabhan, J. observed: "Under S.13(5) the report of analysis is evidence of the facts stated therein and it can be accepted without examining the Analyst. The Public Analyst is a statutory functionary and is an expert in his field. When he gives his opinion it must be taken that the opinion was duly formed after doing whatever is necessary to form that opinion. He is not expected to say what all things were done by him. When he gives the percentage of ash insoluble in hydrochloric acid it is not necessary for him to say that a particular chemical test was conducted. That is understood. Otherwise the percentage cannot be given. Position may be different in a case where the report of analysis gives intrinsic evidence or from other materials it is clearly establishing beyond doubt that the required tests were not conducted. Otherwise it is the duty of the person who challenges the report to cite and examine the Analyst to show the results were arrived at without proper analysis. It may be illegal to insist that whenever the accused challenges the correctness of the findings in the report the prosecution will have to examine the Analyst and clear the doubt." 23. The fact that the report specifically mentions result of microscopic examination does not indicate that the expert did not conduct requisite chemical tests. Where the report refers to percentage of moisture, total ash and the like, the necessary inference is that these results were arrived at after performing the requisite chemical tests. Of course, it is open to the accused to satisfy the court by other materials that the tests were not conducted. It is unnecessary for the expert to indicate in the report details of the tests conducted by him. Of course, it is open to the accused to satisfy the court by other materials that the tests were not conducted. It is unnecessary for the expert to indicate in the report details of the tests conducted by him. The following observation of the Allahabad High Court in Nagar Mahapalika of Kanpur v. Sri Ram (A.I.R. 1964 Allahabad 270) has been quoted with approval by the Supreme Court in Dhian Singh v. Saharanpur Municipality (A.I.R. 1970 S.C. 318): "that the report of the Public Analyst under S.13 of the Prevention of Food Adulteration Act, 1954, need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S.2(1) of the Act." With respect we hold that the decision in 1987 (1) KLT 414 does not lay down the correct law. 24. In the light of the above propositions, we will consider the other arguments advanced in each of the cases. We will first deal with Crl. A.246/86. This is a case where the procedure prescribed in R.22-A was followed by the Food Inspector and the packets containing coriander powder were not opened and the contents mixed before division into three parts. According to learned counsel for the respondent, packets were not sealed containers and did not contain identical label declarations. The evidence of the Food Inspector examined as P.W.1 shows that the article was in identical polythene packets. P.W.2 deposed that packets were not broken open and the contents mixed. Respondent examined as DW-1 deposed that the labels were inside the packets and were not affixed on the outer side of the polythene cover. But his evidence would show that the polythene covers were fastened by heating the top ends. Learned counsel placed before us a packet of coriander powder slating that it is identical to the packets taken by the Food Inspector. We find that the top ends are fastened. Going by this packet as well as the evidence of DW-1 it is clear that the polythene covers were closed and so fastened that there will not be access to the contents of the packets without breaking the fastening. We find that the top ends are fastened. Going by this packet as well as the evidence of DW-1 it is clear that the polythene covers were closed and so fastened that there will not be access to the contents of the packets without breaking the fastening. The averment of DW-1 that the packet can be opened and again closed cannot be accepted in view of the presence of the fastening. We therefore hold that the packets purchased by the Food Inspector were sealed containers. 25. There is no dispute that there were labels inside the sealed packets, though not affixed to the outerside of the polythene containers. There is also no dispute that the labels indicated the name of the article as coriander powder, the weight of the article as 100 grams each and the price. Thus we see that the labels had the same writings. In other words, they contain identical label declaration. We have indicated that according to rules in existence at the time of the sampling there was no provision requiring containers of coriander powder to have label with particular type of declaration. The declaration regarding the nature of the contents and the weight of the contents on the label were quite visible from outside. As we have indicated, requirement of identical label declaration in R.22A would be met if the labels indicate identity of the nature of the contents and the weight or volume. In these circumstances, we are of opinion that Food Inspector had the power to invoke R.22-A in the instant case. In any event, respondent has not succeeded in showing that he has been prejudiced by the invocation of R.22-A. The acquittal of the respondent is based entirely on the fact that Food Inspector wrongly invoked R.22-A and in the view we have taken, the acquittal has to be set aside. Learned counsel has not been able to urge any other contention in support of the acquittal. The acquittal has therefore to be reversed. 26. We now turn to C.C.No.127 of 1984. In this case the Food Inspector purchased six polythene packets containing coffee-chicory mixture and opened the packets, mixed the contents and then divided the same into three packets. We have already indicated that R.22-A is not mandatory and that it is only an enabling provision authorising the Food Inspector to adopt an alternative procedure. In this case the Food Inspector purchased six polythene packets containing coffee-chicory mixture and opened the packets, mixed the contents and then divided the same into three packets. We have already indicated that R.22-A is not mandatory and that it is only an enabling provision authorising the Food Inspector to adopt an alternative procedure. In this case Food Inspector could have either adopted R.22A or refrained from doing so. No other contention has been raised by the revision petitioner against the conviction entered against him. 27. In C.C.No.225 of 1983 Food Inspector purchased 18 packets of coffee-chicory mixture and opened and mixed the contents before dividing the same into three parts. It is argued that the packets are sealed containers and R.22A should have been invoked. Since we have held that R.22A is not mandatory and it is open to the Food Inspector to adopt or not to adopt the procedure prescribed in R.22A this argument has to fail. Learned counsel also contended that report of the Public Analyst is based entirely on microscopic examination and therefore it has to be disregarded. We have seen the report of the Public Analyst, namely, Ext.P14. The result of analysis as found in Ext.P14 reads thus: (determined by extraction of 2 grammes of the sample dried to constant weight at 100° C with 100 ml. of boiling distilled water for one hour under reflux): 53.4 per cent Going by the report the sample does not conform to the standards prescribed for coffee chicory under the Rules and is therefore adulterated. It is evident from the report that in order to verify whether the sample is that of mixture of coffee chicory microscopic examination was conducted to find percentage of caffeine content, aqueous extract, presence of chicory and starch the Public Analyst must necessarily have conducted appropriate chemical tests. On the face of the report it is clear that chemical tests had been conducted. If the accused had any doubt regarding the same he could have either invoked S.13(2) of the Act and caused a part of the sample to be sent to the Director of Central Food Laboratory or required examination of the Public Analyst in court. He did not choose to do so. In these circumstances, we have to reject this contention. 28. He did not choose to do so. In these circumstances, we have to reject this contention. 28. Learned counsel for the revision petitioner would contend that revision petitioner had a bill for purchase of the coffee-chicory mixture and handed over the bill to the Food Inspector and that has been suppressed. It is pointed out that a prosecution witness, namely P.W.3 admitted that the revision petitioner had handed over a bill to the Food Inspector. It is argued that since the bill was suppressed, defence under S.19(2) of the Act could not have been successful. There is no dispute that manufacture and sale of coffee chicory mixture requires licence. It is the case of the revision petitioner that he purchased it from a manufacturer. Therefore under S.19(2) of the Act he should prove (i) that he purchased the article from a licensed manufacturer and (ii) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. We will assume for the purpose of argument that the accused purchased it from a manufacturer and the bill containing warrantee had been handed over to the Food Inspector. Revision petitioner, in order to avail the defence under S.19(2) of the Act, has to prove that while the article was in his possession it was properly stored and that he sold it in the same state as he purchased it. No such evidence was attempted. In fact a defence under S.19(2) of the Act was not specifically raised in the trial court Hence this contention also has to fail. 29. Learned counsel for the accused in the three cases relying on the decision of the Supreme Court in Dineshchandra Jamnadas Gandhi v. State of Gujarat (AIR 1989 SC 1011) pleaded for recommendation to the Government for remission of ! sentence. In that case the Supreme Court was dealing with a sample of supari. There was controversy whether it is an article of food coming within the purview of the Act. Sample was taken on 7-12-1978. The court took note of certain observations in Ganoshmal Jashraj v. Govt. sentence. In that case the Supreme Court was dealing with a sample of supari. There was controversy whether it is an article of food coming within the purview of the Act. Sample was taken on 7-12-1978. The court took note of certain observations in Ganoshmal Jashraj v. Govt. of Gujarat (AIR 1980 SC 264) and Inderjeet v. U.P. State (AIR 1979 SC 1867) and took the view that bigger offenders who manufacture supari and who distributed them to the retailers have gone scot free, but the appellant did not and the offence was ten years old and the appellate court had acquitted him. Taking all these factors into consideration the court advised the Government to exercise its executive power of remission of the substantive sentence of imprisonment though not of fine under S.432 Cr.P.C. or under other law appropriate to the case and postponed the sentence till the Government take a decision in the matter. In our opinion that was an exceptional case where the court made a recommendation. We do not think, in the facts of the present case, we should make a similar recommendation. 30. We set aside the acquittal in C.C.110/83 and convict the accused therein under S.16(1)(a)(i) read with S.7(1) of the Act and sentence him to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/- and in default to undergo simple imprisonment for six months. 31. We confirm the convict ion and science entered against the first accused in C.C.127/84 and the accused in C.C.225/83. 32. The Criminal Appeal is accordingly allowed and Crl. R.Ps. are dismissed.