STATE OF GUJARAT v. HAIDERALI RASULBHAI MOMIN — 1998 DIGILAW 658 (GUJ)

B. C. PATEL, J. ( 1 ) STATE, being aggrieved by an order of acquittal recorded by Judicial Magistrate, First Class, Idar on 15-12-1990 in Summary Case No. 88 of 1988 wherein the accused was tried for an offence under Sec. 7 of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act"), which is punishable under Sec. 16 (1) (a) (i) of the Act, has preferred this appeal. ( 2 ) BRIEF facts as it emerges from the record are as under :2. 1 Chimanbhai Narayandas Patel, P. W. 1 (hereinafter referred to as the complainant) appointed as a Food Inspector by the State Government, vide gazette dated 19-5-1983, visited on 10-10-1986 the shop of respondent (hereinafter referred to as the accused) known as Vijay Kirana Stores dealing in food articles, along with Panch Bhikhabhai Revabhai P. W. 2. Complainant collected a sample of Coconut Oil (popularly known as koprel) (hereinafter referred to as the article of food) from the accused, after giving an intimation in Form No. VI. Accused delivered the article of food weighing about 400 gms. which was collected in three dry and clean bottles, after dividing the same into three parts. The bottles were sealed as per the provisions contained in the Prevention of Food Adulteration Rules (hereinafter referred to as the rules ). One sample bottle was forwarded to the Public Analyst, Rajkot who, on analysis, opined that the article of food is adulterated. After getting the consent from the competent authority, complainant filed a complaint before the judicial Magistrate, First Class and also informed to the accused about the launching of the prosecution and for exercising his option to send the sample to the Central Food Laboratory under Sec. 13 (2) of the Act. 2. After getting the consent from the competent authority, complainant filed a complaint before the judicial Magistrate, First Class and also informed to the accused about the launching of the prosecution and for exercising his option to send the sample to the Central Food Laboratory under Sec. 13 (2) of the Act. 2. 2 The trial Court, on appreciation of evidence held that (i) there is no corroboration from an independent witness; (ii) for a period of eight months, complainant has not bothered to apply for consent, and no explanation is given by the complainant for the same; (iii) consent is granted on 14-8-1987 and thereafter complaint is filed after a period of 15 months and no explanation is given by the complainant; (iv) there is nothing to show that after the sample was produced before the Court on tendering an application, for a long period anything was done; While forwarding the sample to the Central Food Laboratory, the Court did not follow the procedure; There is nothing to show that the sample was verified at the time of forwarding the sample; that reliance cannot be placed on the report of Central Food Laboratory in the absence of satisfactory evidence about seals being verified before forwarding; (v) there is breach of sec. 13 (2. A) inasmuch as the sample was not forwarded to the Court within five days; (vi) The article of food is being used as hair oil and therefore, it cannot be said that the article of food was sold to the Food Inspector as an article of food; and, (vii) there is nothing to show that consent was granted in the interest of public. On these grounds, the trial Court acquitted the accused. ( 3 ) MR. Mankad, learned Additional Public Prosecutor appearing for the state pointed out from the evidence of the Food Inspector that by following the procedure, sample was collected and in the cross-examination, there is nothing to show that breach of any of the rules is committed while collecting the same. Mr. Japee, learned Advocate appearing for the respondent was not in a position to point out from the evidence on record that any breach is committed. Thus, it is clear that the sample has been collected in accordance with Rules. Mr. Japee, learned Advocate appearing for the respondent was not in a position to point out from the evidence on record that any breach is committed. Thus, it is clear that the sample has been collected in accordance with Rules. ( 4 ) SO far as the contention with regard to Panch not supporting the prosecution is concerned, it is required to be stated that there is nothing to show that the complainant had any enmity with the accused or had any grudge against the accused. There is nothing to show that with mala fide or with bias, the sample was collected. If the evidence of Food Inspector is otherwise acceptable, then merely because the Panch has not supported the prosecution version, the evidence of the Food Inspector, cannot be discarded as he is an independent person, and in discharge of his duties as a public servant has collected the samples. 4. 1 In the case of Babulal v. State of Gujarat, reported in AIR 1971 sc 1277 , the Apex Court has held as under in paragraph 5 of the judgment :"even otherwise, in our view, no question of the trial being vitiated for non-compliance of these provisions can arise. It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to the one as in the case of Wills where the law makes it imperative to examine an attesting witness under Sec. 68 of the Evidence Act to prove the execution of the Will. The evidence of the Food inspector alone if believed can be relied on for proving that the samples were taken as required by law. At the most, Courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food inspector and what in the opinion of the Court is the value of his testimony. The provisions of Sec. 10 (7) are akin to those under Sec. 103 of the Criminal procedure Code when the premises of a citizen are searched by the Police. The provisions of Sec. 10 (7) are akin to those under Sec. 103 of the Criminal procedure Code when the premises of a citizen are searched by the Police. These provisions are enacted to safeguard against any possible allegations of excesses or resort to unfair means either by the Police Officers or by the Food inspectors under the Act. This being the object, it is in the interests of the prosecuting authorities concerned to comply with the provisions of the Act, the non-compliance of which may in some cases result in their testimony being rejected. While this is so, we are not to be understood as in any way minimising the need to comply with the aforesaid salutary provisions. In this case, however, there is no justification in the allegation that the provisions have not been complied with because the Panch witness had been called and his signatures taken which he admits. In these circumstances, the Courts were justified on the evidence of the Food Inspector that he had complied with the requirements and that the samples were seized in the presence of the Panch witness whose signatures were taken in the presence of the accused. "4. 2 The Apex Court, in the case of State of U. P. v. Hanif reported in AIR 1992 SC 1121 held as under in paragraph 4 of the judgment :-". . . . It is not the law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food inspector is not jnherently suspected, nor be rejected on that ground. He discharges die public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public 6 duty. His evidence is to be tested on its own merits and if found acceptable, the Court would be entitled to accept and rely on to prove prosecution case. If in a given case where the factum of the very purchase is put in question and any personal allegations are made against the Food Inspector, perhaps it may be necessary for the prosecution to dispel the doubt and to examine the panch witnesses seeking corroboration to the evidence of the Food Inspector. If in a given case where the factum of the very purchase is put in question and any personal allegations are made against the Food Inspector, perhaps it may be necessary for the prosecution to dispel the doubt and to examine the panch witnesses seeking corroboration to the evidence of the Food Inspector. "under the circumstance, this contention has no merit and the acquittal based on the ground that panch has not supported, cannot be said to be a valid ground. ( 5 ) LEARNED Advocate appearing for the accused submitted that in the instant case, there is delay of a considerable period, not at one stage, but at different stages. He submitted that for a period of eight months, no action was taken for moving the appropriate authority for according consent; even after consent was accorded by the appropriate authority, for a period of five months, the complainant has not filed the complaint in the Court of Law. Mr. Japee submitted that in view of the inordinate delay, the order of acquittal need not be disturbed. 5. 1 In food adulteration cases, one has to also look at the object of the act and the purpose of the Act. When an Act is enacted with a view to see that the health of public is not adversely affected, any act in contravention of the said Act is a violation, and initiation of proceedings for such violation is in the interest of the public at large as it is concerned with the health of public. There are certain offences for which it can be said that if someone acts in breach or in violation of the provisions thereof public at large will suffer and when breach is noticed, it may not be certain who would be the victims. On the other hand, there are certain offences if committed, public at large may not be the sufferer and sufferer may be one individual or more or a group of persons, i. e. act against human body, property etc. (offences under the Penal Code ). So far as the Prevention of Food Adulteration Act is concerned, if someone acts in breach or in violation of the provisions of the said Act or Rules made thereunder, public at large will always be the sufferer. (offences under the Penal Code ). So far as the Prevention of Food Adulteration Act is concerned, if someone acts in breach or in violation of the provisions of the said Act or Rules made thereunder, public at large will always be the sufferer. In other words, it goes without saying that breach of the provisions of the Act is against the interest of public at large. The Apex Court, in the case of Jagdish Prasad v. State of W. B. (Cri. App. No. 50 of 1969 decided on 13-12-1971) has pointed out that the offences under the Act are anti-social crimes, affecting the health and well-being of bur people, hence a more drastic step was taken by the legislature in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence. Adulteration of food is so dangerous and widespread and has so often led to large human tragedies, sudden or slow, insidious or open, that social defense compels casting of absolute liability on the criminal even if the particular offence is committed with an unsuspecting means ( AIR 1977 SC 435 at 438 ). In the circumstances, launching of prosecution for violation of breach of the provisions of the Act is in the public interest. Considering the object of the Act, the prosecution of an accused against whom complainant has made out a prima facie case, is always in the interest of public. 5. 2 So far as analysis is concerned, it is not the case that the sample was not analysed in time. Sample was collected on 14-10-1986 and 7 it was forwarded on the same date for analysis to the Public Analyst. It appears from the report that the report has been prepared by the Public Analyst on 21-10-1986 and was forwarded to the Commissioner for Food and Drugs Control department on 5-11-1986. Thus, the sample was analysed within a very short period and no delay has taken place in the analysis of the sample. 5. 3 Moreover, in the instant case, what is important is that the accused submitted an application for exercising his right under Sec. 13 of the Act and the Court forwarded the sample to the Central Food Laboratory after following the procedure. The report of Central Food Laboratory is produced on the record, vide Exh. 5. 3 Moreover, in the instant case, what is important is that the accused submitted an application for exercising his right under Sec. 13 of the Act and the Court forwarded the sample to the Central Food Laboratory after following the procedure. The report of Central Food Laboratory is produced on the record, vide Exh. 55 the relevant portion of which reads as under :"the sample does not conform to the standard of coconut oil laid down in Item A. 17. 01 of P. F. A. Rules (1955), in that (i) B. R. Reading is above the maximum prescribed limit, (ii) saponification value, polensky value and Iodine value are less than the minimum prescribed limits; (iii) sample shows presence of mineral oil. The sample is thus adulterated. "5. 3. 1 Central Food Laboratory has specifically stated in its report that the sample was in a condition fit for analysis. The report of the Central Food laboratory supersedes the report of Public Analyst. 5. 4 The Apex Court, in the case of Municipal Corporation of Delhi v. Ghisa Ram, reported in AIR 1967 SC 970 , held as under :-"we are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible. "5. 4. 1 In the instant case, it is clear that there is delay in launching the prosecution, but there is nothing to show that the delay in launching the prosecution has adversely affected the valuable right given by the legislature to the accused. He has exercised his option of getting the sample analysed by the Central Food Laboratory and in the opinion of the Central Food laboratory, the sample was in a condition fit for analysis. Thus, though there is delay, no prejudice is caused to the accused. He has exercised his option of getting the sample analysed by the Central Food Laboratory and in the opinion of the Central Food laboratory, the sample was in a condition fit for analysis. Thus, though there is delay, no prejudice is caused to the accused. ( 6 ) IN the case of T. V. Usman v. Food Inspector, reported in 1994 (1) glh 420, the Apex Court considered the question of delay in sending the report of Public Analyst. The Court, held as under in paragraph 11 of the judgment (at page 425) :"it must be noted that Rule 7 (3) is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, sub-sec. (2) of Sec. 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food laboratory and in case the sample is found by the said Central Food Laboratory 8 unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of the prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution cases even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore, it must be shown that the delay has led to the denial of right conferred under Sec. 13 (2) and that depends on the facts of each case and violation of the time limit given in sub-Rule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out. "6. Therefore, it must be shown that the delay has led to the denial of right conferred under Sec. 13 (2) and that depends on the facts of each case and violation of the time limit given in sub-Rule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out. "6. 1 Looking to the report of the Central Food Laboratory, it is clear that the Central Food Laboratory has not opined that it was not possible to analyse the sample on account of decomposition or any other reason but on the contrary, it has specifically opined that the sample was fit for analysis and after analysing the sample, it has opined that the sample is adulterated, and, therefore, the report submitted by the Central Food Laboratory is to be accepted. Though, there is delay in prosecution, the same has not adversely affected the accused, and, therefore, on the ground that there was delay, the accused is not entitled to get an order of acquittal. ( 7 ) IT was submitted that there is nothing on the record to show as to when the sample was received by the trial Court from the Local (Health) authority and whether there was any tampering with the sample or not. The trial Court has given considerable weight to this aspect. It seems that the trial court has omitted to look at the Exh. 56 by which the Local (Health) Authority was called upon to produce the sample for forwarding the same to the Central food Laboratory and Exh. 51 is the memorandum forwarded by the Judicial magistrate First Class to the Director, Central Food Laboratory, Ghaziabad. Reading the memorandum Exh. 51 and the report Exh. 55, it becomes clear that the seals on the container of the sample were intact. The seals on outer cover of sample parcel were also intact and tallied with the specimen impression of seal affixed on copy of memorandum which was forwarded separately. Vide exh. 51, the Court has forwarded the sample under its own seal. The accused was given an opportunity at the relevant time and he has signed Exh. 51 indicating that the sample as suggested by him has been forwarded. 7. 1 Mr. Japee submitted that from the memorandum it is not clear that the Court examined the seals and that the seals were intact. Under Sec. 13 (2. The accused was given an opportunity at the relevant time and he has signed Exh. 51 indicating that the sample as suggested by him has been forwarded. 7. 1 Mr. Japee submitted that from the memorandum it is not clear that the Court examined the seals and that the seals were intact. Under Sec. 13 (2. B) of the Act, the Court has to ascertain that mark and seal or fastening as provided in clause (b) of sub-sec. (1) of Sec. 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and after satisfying that seals are intact and there is no tampering with, the Court has to despatch the sample under its own seal to the Director of the Central Food laboratory. The Court has applied its own seal and that would be done only after satisfying itself that the seals were intact, and the signature or thumb impression was not tampered with. A presumption would arise under Sec. 114 (e) of the Evidence Act that official acts are performed in accordance with the procedure laid down. When the trial Court was forwarding the sample, 9 it was for the accused or his lawyer at that time to make an application to the Court if the sample or seals were tampered with. The Court would have called for another sample or Court would have noted the condition. In the absence, it cannot be said that the Court was not satisfied about the seals on the sample or that there was tampering. It must be presumed that the seals on the samples were intact and not tampered with. A Division Bench of this court in the case of Kamlesh Kumar Babulal v. State, reported in 1981 GLR 404 , had an occasion to consider the provisions contained in Rules 16 (c), 16 (d) and 20. The Division Bench considered the reported decision in case of Babulal hargovindas v. State of Gujarat, reported in 1970 GLR 530 . The Court pointed out that the Learned single Judge referred the Apex Court judgment in the case of Kassim Kunja v. K. K. Ramakrishnan, 1969 KLT 50 (SC ). The Division Bench considered the reported decision in case of Babulal hargovindas v. State of Gujarat, reported in 1970 GLR 530 . The Court pointed out that the Learned single Judge referred the Apex Court judgment in the case of Kassim Kunja v. K. K. Ramakrishnan, 1969 KLT 50 (SC ). The Division bench approved the view expressed by learned single Judge which reads as under :-"if the principle requirement of the provisions of the Act and Rules as to taking of the sample, sealing the sample, sending the sample and analysis of the sample having been clearly made out the procedure details as to the prescribed manner of these acts may be presumed dependent on the facts of the case. "the Division Bench, about the performance of public duty and presumption held as under :when the provisions of a statute relates to performance of public duty unless and until contrary is pointed out, it cannot be said that the Public Officer has not acted as per the duty imposed upon him. ( 8 ) LEARNED Additional Public Prosecutor, Mr. Mankad submitted that the trial Court has seriously erred in giving benefit of doubt to the accused on the ground that the article of food could have been used as hair oil as in the area, it is generally not used as an article of food. Despite the decision of this Court, the trial Court has misdirected itself. So far as coconut oil is concerned, in the case of U. H. Shah v. Abdulhabib reported in 1976 GLR 990 , Division Bench of this High Court considered the question whether coconut oil is an article of food or hair oil. The trial Court in that case held that coconut oil is an article of food and the same having been found adulterated, convicted and sentenced the accused. In appeal, learned Additional Sessions judge held that the accused could not be said to have sold the article of food as defined under the Act, and, therefore, could not be convicted of the offence charged against him. The Division Bench of this Court held that the fact that the coconut oil is generally not used for human consumption in the State of gujarat can be taken into consideration for leniently dealing with the accused. The Division Bench of this Court held that the fact that the coconut oil is generally not used for human consumption in the State of gujarat can be taken into consideration for leniently dealing with the accused. However, that leniency cannot be to the extent of allowing him to go with a mere sentence of fine. The Court further held that there may be persons residing in the State of Gujarat who may be using coconut oil for human consumption, and, the offence is an offence against the society as a whole, and the same cannot be dealt with too leniently. 8. 1 In the light of the aforesaid decision, the submission of Mr. Japee that as the Food Inspector has admitted in his evidence that according to his information, people in that area are not using coconut oil as an article of food, 10 it should be held that coconut oil was not sold as an article of food, cannot be accepted. Food Inspector was not an officer carrying out any survey in the locality to find out as to whether coconut oil is being used as food or hair oil in a particular area. Neither complainant was entrusted with such a duty nor was the function of the Food Inspector to make a survey. That evidence is hearsay and cannot be accepted. The trial Court could not have held this as an admission on the part of the Food Inspector. There may be persons using it as an article of food and there may be persons not using it as an article of food, but that does not mean that it is not an article of food. Under the Act, coconut oil being an article of food, sale to Food Inspector is a sale within the meaning of the provisions of the Act. 8. 2 An article of food sold to Food Inspector for analysis would come within the purview of sub-clause (xiii) of Sec. 2 irrespective of the fact that such article of food can be used for other purposes than food. 8. 3 The Apex Court in the case of Food Inspector v. Cherukattil Gopalan reported in 1971 (2) SCC 322 has held as under in paragraph 15 :"it will be seen that Sec. 7 deals not only with manufacture, sale, storing or distributing but also selling. 8. 3 The Apex Court in the case of Food Inspector v. Cherukattil Gopalan reported in 1971 (2) SCC 322 has held as under in paragraph 15 :"it will be seen that Sec. 7 deals not only with manufacture, sale, storing or distributing but also selling. We are particularly emphasising this aspect because it has been missed in this case not only by the two Courts but also in some of the decisions, to which our attention has been drawn. Section 10 deals with the powers of the Food Inspector. Under sub-sec. 10 (1) (a) the Food Inspector has power to take samples of any article of food from any of the persons enumerated in sub-clauses (i) to (iii ). Section 12 gives a right even to a purchaser, who is not the Food Inspector of having the article of food analysed by a Public analyst in accordance with that Section. "8. 4 After considering the definition of sale in the said judgment, the Apex court held that the sale of an article to a Food Inspector for analysis is a sale. In the said judgment, the Apex Court also considered the decision of the Apex Court in the case of Mangaldas Raghavji Ruparel and Anr, v. State of Maharashtra and Anr. reported in 1965 (2) SCR 894 wherein it was held that there is a special definition of "sale" in Sec. 2 (xiii) of the Act which specifically includes within its ambit the sale for analysis. It was contended before the Apex Court that once there is a sale as defined in the Act of an article of food, it is not necessary to establish that the accused are dealers in that article as such. After considering various decisions, in paragraph 18, the Apex Court held that when there has been a sale to the Food Inspector for analysis of an article of food, which, when found to be adulterated, the accused is guilty of an offence. ( 9 ) IT appears that in view of the object of the Act, the legislature has conferred powers on the Food Inspector even to take samples of any article of food from a person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. ( 9 ) IT appears that in view of the object of the Act, the legislature has conferred powers on the Food Inspector even to take samples of any article of food from a person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. Reading Sec. 10 (1) (a) (ii) with definition clause 2 (xiii), it is clear that in the instant case, it is a case of sale of food. In the case of State of Tamil Nadu v. R. Krishnamurthi, reported in 1980 (1) SCC 167 , it was held that an article even if not intended for human consumption, if generally or commonly used for human consumption 11 or in preparation of human food, would be food within Sec. 2 (v ). It was further held that an unqualified sale of such food for analysis is sale within sec. 2 (xiii) even if it is not offered for sale for human consumption. It was further held that sale of gingerly oil mixed with groundnut oil as such for analysis would be an offence punishable under provisions of the Act even if the oil sold is for external use only. ( 10 ) IN the view of the law laid down in the aforesaid judgments, it is apparent that the trial Court has erred in holding that there was no sale of an article of food. Thus, it is very clear that there is a sale to the Food Inspector of an article as an article of food, and it is not open to say that as the article is also used as hair oil, the sale was not as an article of food but as hair oil. ( 11 ) LEARNED Additional Public Prosecutor further submitted that the trial court seriously erred on the point of consent. There is sufficient evidence to show that the Food Inspector applied for consent and the same was accorded by the competent authority. Learned Advocate appearing for the accused submitted that in the instant case, there is non-application of mind. In the instant case, he submitted that Local (Health) Authority, vide Exh. 36 addressed a letter to the Food Inspector on 14-11-1986 to obtain consent for filing the prosecution. Original Exh. 36 as well as the consent Exh. 42 are on the record. Learned Advocate appearing for the accused submitted that in the instant case, there is non-application of mind. In the instant case, he submitted that Local (Health) Authority, vide Exh. 36 addressed a letter to the Food Inspector on 14-11-1986 to obtain consent for filing the prosecution. Original Exh. 36 as well as the consent Exh. 42 are on the record. It is clear that the sanctioning authority and the person requesting the Food inspector for applying for consent are different authorities. It appears that Public analyst forwarded his report Exh. 37 to the Assistant Commissioner, Food and Drugs Control, Ahmedabad in view of Sec. 13 (1) of the Act. Food Inspector thereafter, by letter Exh. 39 addressed to the Assistant Commissioner and Local (Health) Authority, pointing out the contents of the report and along with the letter he forwarded Report, the copy of memorandum duly stamped with the specimen impression of the seal forwarded to Public Analyst, receipt given by the local Authority for accepting the samples, receipt issued by the Public analyst and the panchnama. ( 12 ) LEARNED Advocate submitted that mechanically consent is granted. Considering the letter of consent minutely, it clearly appears that the consenting authority has pointed out how it derived power to grant consent. The consenting authority further pointed out in the consent details of the person who sold the article of food to Food Inspector, date of purchase, nature of article of food, report of the Public Analyst and the opinion given by the Public Analyst. Considering all these, the competent authority accorded consent. Mr. Japee was not in a position to point out that the authority according consent, vide Exh. 42 is not the competent authority or that it is the same authority to which the letter was written by the Food Inspector or the authority which called upon food Inspector to apply for consent, accorded consent. It appears that subordinate officer of the consenting authority entered into correspondence, and the competent authority took the decision in the matter. ( 13 ) IN the case of State of Bihar v. P. P. Sharma reported in 1992 Supp. (1 ). SCC 222, the Apex Court considered the effect of the sanction under Sec. 197 of the Criminal Procedure Code, and held as under at page 268 :- 12". . . . . ( 13 ) IN the case of State of Bihar v. P. P. Sharma reported in 1992 Supp. (1 ). SCC 222, the Apex Court considered the effect of the sanction under Sec. 197 of the Criminal Procedure Code, and held as under at page 268 :- 12". . . . . It is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima fade establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts. The order of sanction is only an administrative act and not a quasi judicial one nor is a Us involved. Therefore, the order of sanction in support thereof as was contended by Shri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. " ( 14 ) MR. Mankad, learned Additional Public Prosecutor relied on the decision of the Apex Court in the case of Suresh H. Rajput v. B. P. Soni, reported in AIR 1996 SC 2883 . In paragraph 12 of the judgment, the Apex Court held as under :-"it is seen that the analysis report which was placed before the local (Health) authority and the other pertinent material in connection therewith have been placed before the sanctioning authority. After going through the material, sanction was granted for laying the prosecution. At that stage, it was not for the sanctioning authority to weigh pros and cons and then to find whether the case could end in conviction or acquittal or the adulteration was abnormal or marginal etc. All these are not matters for the sanctioning authority to weigh and consider the pros and cons of the case before granting sanction to lay prosecution against the respondents. "14. 1 Relying on this judgment, Mr. Mankad, learned A. P. P. submitted that it is not for the sanctioning authority to weigh the pros and cons or to find whether the case would end in conviction or acquittal. ( 15 ) IN view of the facts and circumstances of the case, the contention of the learned Advocate cannot be accepted. 1 Relying on this judgment, Mr. Mankad, learned A. P. P. submitted that it is not for the sanctioning authority to weigh the pros and cons or to find whether the case would end in conviction or acquittal. ( 15 ) IN view of the facts and circumstances of the case, the contention of the learned Advocate cannot be accepted. ( 16 ) LEARNED Advocate submitted that before taking the sample, it was the duty of the Food Inspector to take a homogenous sample or a representative sample. He further submitted that if after stirring the coconut oil if the sample was taken, it could have been said that the sample which is taken is a representative sample. 16. 1 With regard to representative sample, in the case of State of Kerala v. Alasserry Mohd. reported in AIR 1978 SC 933 , the Apex Court pointed out in paragraph 13 of the judgment what is a presentative sample. It reads as under :-"a representative sample has got a different connotation, meaning and purpose in commercial transactions. If, for instance, an average price is to be fixed for a huge quantity of, say, wheat lying in bulk in different storages, then samples must be taken from all the storages to make them a representative sample of the entire quantity for the fixation of the average price. Taking sample from one storage will not be sufficient. In our statute, the ingredient of the offence is, as mentioned in the 7th section of the Act, manufacturing for sale, storing, selling or distributing any adulterated food. If the food sold to the Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the 13 person. A person who stores or sells such sample is liable to be punished under sec. 16 (1) (a) (i) of the Act. "16. If the food sold to the Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the 13 person. A person who stores or sells such sample is liable to be punished under sec. 16 (1) (a) (i) of the Act. "16. 2 While dealing with a case where milk and milk product was found adulterated, the Apex Court pointed out in paragraph 8 of the judgment in the case of Food Inspector, M. C. Baroda v. M. R. Sharma, reported in AIR 1983 SC 176 as under :-"our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogenous and representative sample. We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogenous and representative so that the analysis can furnish reliance proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogenous and representative. But having said this, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument and that churning done by hand would not provide a homogenous and representative sample. Common sense dictates that articles of food like milk and curd when churned with hand would properly mix up from top to bottom. . . . . . . . . . We, therefore, find it difficult to subscribe to the view of the High Court that the churning is required to be done by some instrument or that the churning done by hand would not meet with the requirements of making a sample homogenous and representative. There has to be finding that the churning done with hand was not adequate. . . . " ( 17 ) WHEN a consumer approaches a dealer or vendor, would the dealer or vendor allow the consumer to stir the contents of the container and thereafter allow him to take the article of food from the container? There has to be finding that the churning done with hand was not adequate. . . . " ( 17 ) WHEN a consumer approaches a dealer or vendor, would the dealer or vendor allow the consumer to stir the contents of the container and thereafter allow him to take the article of food from the container? The simple answer would be, No. The vendor would deliver the article of food from the container in the manner which he usually follows while taking out the article for sale with or without stirring after weighing same in his own scale. It is for the vendor to see that he keeps the container, scale, pick-up and measuring instruments neat, dry and clean and also to see that other articles are not mixed with the article of food which he is supplying to the consumer. Under the act and the Rules, it is the duty of the Food Inspector to collect the samples in dry and clean bottles. Under Sec. 11 (1) (b) of the Act, independently or read with relevant provision in the Rules, the Food Inspector is not obliged to resort to the process of mixing. It only obliges him to divide the sample into three parts. However, of his own, the Food Inspector is stirring or churning, then he has to see that atleast with clean utensil or instrument the article of food in stirred or churned. It is for the vendor to supply the article of food in the manner in which he likes and the Food Inspector is not concerned with that. Therefore, the submission that the Food Inspector did not stir before taking the sample has no substance. ( 18 ) SO far as milk is concerned, since milk fat is of lower density than the other constituents of milk, it tends to rise to the surface. Thorough mixing of milk with a proper instrument which will reach the entire depth of the liquid 14 is essential to ensure a representative sample of the entire batch. In small batches, it should be possible to accomplish mixing by pouring the entire quantity of milk from one container to another, three or four times. Larger batches of milk shall be thoroughly agitated by a hand stirrer or by mechanical means. Milk churns easily. . . . . In small batches, it should be possible to accomplish mixing by pouring the entire quantity of milk from one container to another, three or four times. Larger batches of milk shall be thoroughly agitated by a hand stirrer or by mechanical means. Milk churns easily. . . . . " (Page 5 of I. S. I. Handbook of Food Analysis Part xi, Dairy Products ). ( 19 ) IN the book "official Methods of Analysis of the Association of Official agricultural Chemists, Ninth Edition 1960 published by the Association of official agricultural Chemists, Washington, at page 186, the procedure for collection of sample is described. It says to thoroughly mix bulk milk by pouring from one clean vessel into another 3 or 4 times or stir atleast 30 Seconds with utensil reaching to bottom of container. If cream has formed, detach all of it from sides of vessel and stir until liquid is evenly emulsified or use hand homogenizer. ( 20 ) SO far as oil is concerned, neither the publication of Indian Standards institution nor the book published by Association of official Agricultural chemists, Washington provides for any such procedure for collecting sample of oil, though both these books deal with collection and analysis of sample of oil. No other publication is brought to our notice suggesting that the contents of the container, viz. oil should be stirred or the procedure similar to collection of milk should be followed for collecting sample of oil. . ( 21 ) ON account of the fat settling on the top of milk, milk is required to be stirred while collecting the sample, but so far as edible oil is concerned, nothing is pointed out to suggest that fat in oil also settles on the top and, therefore, is required to be stirred. In the absence of any scientific literature suggesting stirring of edible oil while collecting a sample, submission cannot be accepted that the procedure followed while collecting the sample of milk, i. e. stirring, should be followed. In the circumstances, this argument is required to be rejected. xxx xxx xxx ( 22 ) ). In view of what is stated above, the order of acquittal passed by the trial Court is quashed and set aside. Accused is convicted of an offence under sec. 7 of the Act, punishable under Sec. 16 (1) (a) (i) of the Act. ( 23 ) ). xxx xxx xxx ( 22 ) ). In view of what is stated above, the order of acquittal passed by the trial Court is quashed and set aside. Accused is convicted of an offence under sec. 7 of the Act, punishable under Sec. 16 (1) (a) (i) of the Act. ( 23 ) ). This Court has come to a conclusion that the accused is guilty of an offence under Sec. 16 read with Sec. 7 of the Act, and the Act provides for minimum punishment. In the circumstances, the accused is sentenced to undergo simple imprisonment for a period of six months and is also sentenced to pay a fine of Rs. 1000/- (Rupees one thousand), in default of payment of fine, the accused is sentenced to undergo fifteen days simple imprisonment, ( 24 ) ). The appeal stands allowed with the aforesaid observations. Appeal allowed. .