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2005 DIGILAW 451 (GUJ)

STATE OF GUJRAT v. GAFURBHAI BHIKHABHAI MANSURI

2005-07-05

S.R.BRAHMBHATT

body2005
S. R. BRAHMBHATT, J. ( 1 ) HEARD Shri K. C. Shah, learned Addl. Public Prosecutor for the appellant State of Gujarat and Shri D. K. Modi, learned counsel for the respondents original accused. ( 2 ) THE appellant State of Gujarat has preferred the present appeal under Section 378 of the Code of Criminal procedure challenging the judgment and order of acquittal dated 14. 6. 1996 passed by the learned Additional Sessions judge, Mehsana in Criminal Appeal No. 20 of 1996, whereunder, the learned Additional Sessions Judge has reversed the decision of learned Magistrate, Kheralu dated 8. 4. 1996 passed in Criminal Case No. 205 of 1992, whereby, the learned Magistrate has convicted the original accused nos. 1 and 2 for the offences punishable under Sections 2 (IA) (F), 7 (I), 7 (II), 7 (V) of the Prevention of Food adulteration Act, 1954 (herein after referred to as Sthe act for short) and ordered to suffer RI for 6 months and also imposed fine of Rs. 1000=00 (Rs. One thousand only) on each of the accused and in default thereof, further SI for 45 days to be undergone by accused Nos. 1 and 2. ( 3 ) SHRI Modi, learned counsel appearing on behalf of the accused has today produced the death certification dated 1. 12. 2000 issued by the Chief Officer, Municipal Borough, kheralu indicating that Gafurbhai Bhikhabhai Mansuri, original accused No. 1 respondent No. 1 has died on 12. 11. 2000 and the death was registered in the record on 17. 11. 2000. The said certificate is ordered to be taken on record. In view of this, the present appeal qua original accused No. 1 stands abated. ( 4 ) THIS Court vide order dated 5. 12. 1996 granted leave and admitted the appeal and ordered the same to be heard expeditiously. ( 5 ) LEARNED Magistrate has accepted the case of the prosecution and held that all the three accused were held guilty of the offences under Sections 7 and 16 of the Act and imposed sentence as mentioned herein above. 12. 1996 granted leave and admitted the appeal and ordered the same to be heard expeditiously. ( 5 ) LEARNED Magistrate has accepted the case of the prosecution and held that all the three accused were held guilty of the offences under Sections 7 and 16 of the Act and imposed sentence as mentioned herein above. The learned additional Sessions Judge in Criminal Appeal No. 20 of 1996 has reversed the finding of the learned Magistrate and allowed the Criminal Appeal and recorded acquittal of the accused of the charges levelled against them under Sections 2 (IA) (F), 7 (I), 7 (II), 7 (V) of the Prevention of Food adulteration Act, 1954. ( 6 ) SHRI Shah, learned Addl. P. P. has assailed the order and judgment of the learned Additional Session Judge, Mehsana on various grounds and has attempted to support the finding of the learned Magistrate and submitted that in view of the finding of the learned Magistrate, the order of the conviction ought to have been upheld by the learned additional Sessions Judge and this court may, therefore, reverse the judgment of the learned Additional Sessions judge, Mehsana and restored the conviction recorded by the learned Magistrate in Criminal Case No. 205 of 1992. Shri shah has in his submission attempted to demonstrate that the food Inspector had complied with the provisions of the Act, 1954 and the provisions of the Prevention of Food adulteration Rules, 1955 (hereinafter referred to as "the rules for short) scrupulously. The evidence produced on record, go to show that the offence was proved beyond reasonable doubt and as the report of the Central Food laboratories, as conclusive evidence, indicates that the non edible mineral oil was found in the sample in question and the conviction deserves to be upheld. Shri Shah, learned addl. P. P. has strenuously took this court through the records of the case and rival contentions of the parties and the judgments in question. Shri Shah, learned addl. P. P. has strenuously took this court through the records of the case and rival contentions of the parties and the judgments in question. ( 7 ) SHRI Modi, learned counsel appearing on behalf of original accused and present respondents submitted that the order and judgment of the learned additional Sessions Judge passed in Criminal Appeal No. 20 of 1996 deserves to be upheld in view of the fact that various infirmities in the case of the prosecution have been discussed by the learned additional Sessions Judge and after perusing the entire record, finding of acquittal is recorded and therefore, the same need not be disturbed in the present acquittal appeal preferred by the State. ( 8 ) SHRI Modi, learned counsel for the respondents has submitted that apart from the discussion in the judgment of the learned Additional Sessions Judge, the acquittal could be supported on the point that the prosecution has not proved beyond reasonable doubt the complete compliance with provisions of Section 13 (2-B) of the Act and Rule 4 of the rules and therefore, the report of the Central Food laboratory at Ex. 43 page-83 was not admissible in eyes of law. He further submitted that as the report of the Central food Laboratories Ex. 43 was not admissible in eyes of law as an evidence, the recording of conviction should necessarily fail in view of the fact that report of the Central Food laboratory superseded the report of the Public Analyst and the trial Court as well as the Appellate Court have to rely upon the findings recorded in the Central Food Laboratory report. In case, of non-compliance with the mandatory provisions of Section 13 (2-B) of the Act and Rule 4 of the rules, the entire prosecution should fail as in such eventuality, there would be no lawful evidence of adulteration that could be pressed into service and in absence of such lawful evidence, the conviction cannot stand. ( 9 ) SHRI Modi, learned counsel has further submitted that it is always open to the respondents to support the judgment of the Appellate Court, even on the points, which have not been dealt with extensively by the Appellate Court or which could be relied upon at the Appellate Stage before this court. ( 9 ) SHRI Modi, learned counsel has further submitted that it is always open to the respondents to support the judgment of the Appellate Court, even on the points, which have not been dealt with extensively by the Appellate Court or which could be relied upon at the Appellate Stage before this court. Shri Modi, has further submitted that the entire record is before this court and scheme of the Act and Rules would clearly show that mandatory provisions have been laid down with a view to safe guard against any possible lapses on the part of the prosecution and Food Sample Collecting agencies. The non-compliance with mandatory provisions of the Act and Rules could thus be indicated, at the appellate stage before this Honble Court in support of the finding of acquittal rendered by the learned Additional Sessions Judge, mehsana in Criminal Case No. 20 of 1996. ( 10 ) THIS court proposes to examine the submission. If the remaining two accused succeed in their contention that there was a non-compliance with mandatory provisions of Section 13 (2-B) of the Act and Rule 4, then, even on that ground the acquittal recorded by the learned Additional Sessions Judge, mehsana needs to be upheld though this court may not be in complete agreement with the reasoning and finding of the trial Court as well as Appellate Court. ( 11 ) IT is expedient to set out relevant portion of Section 13 (2-B) of the Act and Rule 4 of the Rules :"section 13 : Report of public analyst :- (1 ). . . . . . . . . . . (2 ). . . . . . . . . . . (2a ). . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . (2a ). . . . . . . . . . . (2b) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2a), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. "rule 4 of the Rules reads under :-"rule 4 : Analysis of food sample. (1) (a) Samples of food for analysis under sub-section (2) of sec. 13 of the Act shall be sent either through a Messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form I in an outer cover addressed to the Director (b) Samples of food analysis under sub-section (2) of Sec. 6 of the Act or under Cl. (a) of rule 3 shall be sent either through a Messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form IA in an outer cover addressed to the Director. (2) The container as well as the outer covering of the packet shall be marked with a distinguishing number. (3) A copy of the memorandum and a specimen impression of the seal, used to seal the container and the cover shall be sent separately by registered post to the Director. (4) On receipt of a package containing a sample for analysis, the Director or an officer authorized by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. (5) After test or analysis, the certificate thereof shall be supplied forthwith to the sender in Form II. (6) The fees payable in respect of such a certificate shall be Rs. 1000 per sample of food analyzed. (5) After test or analysis, the certificate thereof shall be supplied forthwith to the sender in Form II. (6) The fees payable in respect of such a certificate shall be Rs. 1000 per sample of food analyzed. (7) Certificate issued under there rules by the Laboratory shall be signed by Director. (8) The fee payable in respect of analysis of samples of imported food analyzed in any designated laboratory shall be Rs. 3000/- per sample payable by the importer. ( 12 ) SHRI Modi has submitted that under the provisions of Section 13 (2-B) of the Act and Rule 4 of the Rules, it is envisaged that the trial Court has to apply its own seal and sent the sample to the Central Food Laboratory on the request of the accused received under Section 13 of the Act. In support of his submission, Shri Modi has relied upon the judgment of this court reported in case of BHAGWANDAS GURNOMAL VS. STATE OF GUJARAT, reported in 16 GLR p. 164. The Division Bench of this court has in terms held that provisions of the Food Adulteration Act especially Section 13 of the Act and Rule 4 of the Rules, as they stood then, made it imperative for the trial court to affix its own seal and sent the sample to the Director of Central Food Laboratory. Shri Modi has submitted that in view of the observation of Division Bench in case of Bhagwandas Gurnomal (Supra), the certificate issued by the Director, Central Food Laboratory becomes a conclusive evidence and any infirmity in sending the same, would vitiate the entire proceedings and it should, therefore, result into acquittal of the accused. ( 13 ) SHRI Modi has further submitted that once the certificate from the Director of Central Food Laboratory is obtained, then, it would not be open to the prosecution and the Court as well, to rely upon the report of the Public analyst. In support of his submission, Shri Modi has relied upon the decision of the Apex Court in case of CHETUMAL VS. STATE OF MADHYA PRADESH, reported in 1981 Cri. In support of his submission, Shri Modi has relied upon the decision of the Apex Court in case of CHETUMAL VS. STATE OF MADHYA PRADESH, reported in 1981 Cri. L. J. p. 1009 and submitted that for any reason, if the report of the director, Central Food Laboratory becomes inadmissible due to any technical infirmity in obtaining the same or is obtained in violation of mandatory provisions, then, it would not be open to the prosecution or court to fall back upon the report of the Public Analyst for convicting the accused. ( 14 ) SHRI Modi has also relied upon the judgment of the Full bench, in case of PRAHLADBHAI AMBALAL PATEL VS. THE STATE OF gujarat AND ANOTHER, reported in 1984 (II) FAC p. 27 and submitted that report of public analyst would loose its significance, the moment the report from the Director, central Food Laboratory is available on the record. ( 15 ) SHRI Modi has submitted that it reveals that there was a violation of provision of Section 13 (2-B) of the Act and rule 4 of the Rules, in as much as the report at page 83, would show that Director has not mentioned about Form I in which, the memorandum was required to be sent to him by the court. The absence of any reference to Form I, shows that there was non compliance with the mandatory provision of the act and Rules. In support of his submission, Shri Modi has relied upon the decision of this court in case of STATE OF gujarat v. BHUPENDRA M. MEHTA, reported in 1999 (2) FAC 201. Shri Modi has submitted that in the aforesaid decision also, identical situation had arisen, when the Central Food laboratory report did not mention about Form I, the conclusion was drawn that there was non-compliance with the mandatory provisions of the Act and Rules. ( 16 ) IT needs to be borne in mind that the judgment in case of Bhagwandas Gurnomal (Supra) dealt with the provisions of the unamended act, as it stood then. On introduction of prevention of Food Adulteration (Amendment) Act, 1976, which came into force from 1. 4. 1976, the provisions have become more stringent. ( 16 ) IT needs to be borne in mind that the judgment in case of Bhagwandas Gurnomal (Supra) dealt with the provisions of the unamended act, as it stood then. On introduction of prevention of Food Adulteration (Amendment) Act, 1976, which came into force from 1. 4. 1976, the provisions have become more stringent. The conclusion of Division Bench on the relevant provision would therefore be applicable to even the provisions of amended act also and the same can be relied upon, while deciding the matters, after the amendment was brought in force, as the relevant provisions have not been materially changed. ( 17 ) THE Division Bench has held that as per the provisions of Section 13 (2) of the Act, as it stood then, it was incumbent on the Court to ascertain first that the mark and seal or fastening as provided in sec. 11 (1) (b) were intact. After the court is satisfied of this, it is required to despatch the other part of the sample for analysis to the director, Central Food Laboratory under its own seal. The division Bench has held that this being a mandatory requirement, the provision of Rule 4 would have to be interpreted in a manner, which counseled the mandatory requirement of Section 13 (2) itself. The relevant portion needs to be set out as under :-There is the inbuilt guarantee in sec. 13 (2) as the Court has to first ascertain that the mark and seal or fastening up as provided by sec. 11 (1) (b) when the sample was first marked, sealed or fastened up there and then on the spot by the Food Inspector were intact. It is only when the Court is satisfied that the mark and seal or fastening up were intact that the Court seals that sample part delivered to the vendor or retained with the complainant and despatches it for analysis to the Director. Therefore, the expression Sdespatch the part of the sample under its own seal would mean in this context of sec. 13 (2) that the Court must apply its seal both to the container and the outer cover. Therefore, the expression Sdespatch the part of the sample under its own seal would mean in this context of sec. 13 (2) that the Court must apply its seal both to the container and the outer cover. ( 18 ) THE relevant provision before amendment of the Act, which was subject matter before the Division Bench, in case of Bhagwandas Gurnomal (Supra), reads as under,section 13 (2) (As it stood before amendment) : After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample mentioned in sub- clause (i) or sub-clause (iii) of clause (c) of sub- clause (1) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of this analysis. The amended act also contains the similar safeguard and therefore, it is expedient to quote the relevant portion of Section 13 (2) as it stands after amendment :-Section 13 (2) : On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory. Thus, it becomes clear that the observations of the Division Bench in case of Bhagwandas Gurnomal (Supra) could be made applicable after the amended provision also. ( 19 ) THUS, from the aforesaid discussion, it would become clear that provisions of Section 13 (2) of the Act, after amendment, in respect of the duty cast upon the court to send sample to the Central Food Laboratory under its own seal after recording its satisfaction, remains the same. The provision of Section 13 (2-B) reads with Rule 4 of the Rules makes it clear that these provisions are mandatory and scrupulous compliance therewith is requirement of law. In view of the aforesaid, the question arise as to when there is no variance in the report of the public analyst and that of Central Food Laboratory and due to any technical reason of non-compliance with the provisions of Section 13 (2-B) of the Act and Rule 4 of the Rules, would it be proper to permit the accused to go scot free rather than imposing sentence upon him relying upon the Report of Public Analyst. It is time and again established by the Apex Court and by this Court that the report of the Public Analyst stands superseded the moment the report of Central Food Laboratory is obtained. ( 20 ) THE observation of the Apex Court in case of CHETUMAL vs. STATE OF MADHYA PRADESH AND ANOTHER (Supra), deserves to be set out, which would go to show that the Public Analyst report cannot be relied upon to salvage the stand when the report of the Central Food Laboratory becomes inadmissible for want of proper compliance of provisions of Section 13 (2- b) of the Act and Rule 4 of the Rules. Paragraph 2 reads as under :-"para 2 : It is clear that the conviction cannot stand. Under Section 13 (3) of the Prevention of food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the Court on the basis of which the appellant could be convicted. The court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the Court, to fall back upon the report of the Public Analyst to convict the appellant. The appeal is allowed the conviction and sentence are set aside. " ( 21 ) IT would be expedient to refer the observation of the Full Bench in case of PRAHLADBHAI AMBALAL PATEL VS. THE STATE OF GUJARAT AND ANOTHER (supra ). The relevant observation from the said judgment set out as under :-"para 1 : In this group of revision applications, a short question has been referred for out consideration. " ( 21 ) IT would be expedient to refer the observation of the Full Bench in case of PRAHLADBHAI AMBALAL PATEL VS. THE STATE OF GUJARAT AND ANOTHER (supra ). The relevant observation from the said judgment set out as under :-"para 1 : In this group of revision applications, a short question has been referred for out consideration. The said question reads as follows - Swhether, after the report of the public analyst gets superseded by the certificate of the Director, Central Food Laboratory who examines the part of the sample of food article collected under the relevant provisions of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), it is open to the accused to plead that if there is any variance between the aforesaid two reports, the prosecution must explain the said variance or otherwise fail. "para 30 S Before parting with the discussion on the question posed for our consideration, we may refer to an unreported decision of a Division Bench of this court consisting of R. C. Mankad and S. L. Talati, JJ. In Criminal Appeal No. 1140-A of 1978, decided on 11/12. 8. 1980. R. C. Mankad, J. speaking for the Division Bench in the aforesaid decision considered the question of supersession of the report of the public analyst by a certificate issued by the Director. While considering the nature and extent of supersession of the former by the latter under section 13 (3) read with section 13 (5), the Division Bench speaking through Mankad, J. observed as under :-In his report Ex. 9 dated 27. 8. 1976, the public analyst stated inter alia that the sample of cows milk received from the food inspector for analysis was properly sealed and fastened and that he had found the seal intact and unbroken. The report further stated that the seal on the container and the outer cover of the sample talloied with the specimen impression of the seal separately sent by the food inspector and that the sample was in a condition fit for analysis. Under Sub-section (5) of Section 13 of the Act, any document purporting to be a report signed by a public analyst, may be used as evidence of the facts stated therein. It is true that such use of the report cannot be made if it is superseded under Sub- section (3 ). Under Sub-section (5) of Section 13 of the Act, any document purporting to be a report signed by a public analyst, may be used as evidence of the facts stated therein. It is true that such use of the report cannot be made if it is superseded under Sub- section (3 ). In other words, if the report of the public analyst is not consistent with the certificate issued by the Director, it shall stand superseded to the extent it is inconsistent with the certificate. It is not correct to say that once the certificate is issued by the Director, the report of the public analyst stands replaced or set aside or it cannot be used for any purpose. In our opinion, when the certificate of the director is received, the report will not stand in its entirety. It, however, cannot be gainsaid that the report cannot be read as evidence insofar as it is not consistent with the certificate. In other words, the certificate issued by the Director will supersede the report only in respect of these matters for which opinion different from the one expressed in the report is given by the Director. The certificate of the Director, however , does not and cannot totally efface the report of the public analyst. In the instant case, therefore, though the Director has issued a certificate, in our opinion, the report of the public analyst cannot be ignored or discarded. The certificate of the Director will undoubtedly prevail insofar as there is difference of opinion, between the Director and the public analyst. For example, in his report Ex. 9, the public analyst has declared the results of analysis as follows :-Milk solids non fat 6. 1% Milk fat 5. 0% The Director has in his certificate given the percentage of milk fate and milk solids non fat as follows :- Milk fat 6. 7% Milk solids non fat 6. 4% The Director has, however, confirmed the opinion of the public analyst that the sample of milk was adulterated. In our opinion, the report of the public analyst stands superseded by the certificate of the Director insofar as the percentage of milk fat and milk solids non fat are concerned. 7% Milk solids non fat 6. 4% The Director has, however, confirmed the opinion of the public analyst that the sample of milk was adulterated. In our opinion, the report of the public analyst stands superseded by the certificate of the Director insofar as the percentage of milk fat and milk solids non fat are concerned. However, the statement to the effect that the sample of milk sent by the food inspector for analysis was properly sealed and fastened and seals were found in tact and unbroken contained in the report of the public analyst, does not stand effaced on account of the certificate issued by the Director. In other words, this statement can be read as evidence under Sub-section (5) of Section 13 of the Act. The statement of the public analyst that the sample was properly sealed and fastened could not mean that it was properly sealed and fastened in accordance with Rule 16. Therefore, besides the evidence of the food inspector, we have evidence in the shape of the report of the public analyst which shows that the provisions of Rule 16 (d) were complied with. In this connection, it is also important to refer to the application dated September 30, 1976 made by respondent No. 1 to the learned Magistrate to send the sample bottle to the Director for analysis and the order passed below this application. In the order dated September 30, 1976 passed before this application, the learned Magistrate observed that the sample bottle was properly sealed and that it was in good condition. This statement contained in the order of the learned Magistrate also goes to show that sample bottle was properly sealed. Therefore, apart from the presumption which could be legitimately drawn, there is evidence to establish that the provisions of Rule 16 (d) were complied with by the food inspector. The finding of the learned Judge to the contrary, therefore, deserves to be set aside. So far as the said decision is concerned, we must say, with respect, that it is not possible for us to countenance the view that once the report of the public analyst is superseded by the certificate issued by the Central Food Laboratory, the report does not get totally effaced, but it remains operative to the extent its contents are not inconsistent with those of the certificate. In our opinion the view of the Division Bench runs counter to the settled legal position as reflected by the decision of the Supreme Court in Setumals case (supra) and catena of other decisions on the point. Once there is supersession of the report of the public analyst by a superior certificate of the Director, the superseded report gets totally effaced and is excluded from evidence whole-hog. Under these circumstances, it would not be open to the court to try to salvage the situation by making exercise with a view to finding out as to whether any materials from the report of the public analyst are retrievable insofar as they are not inconsistent with what is stated in the superior certificate of the Director. In our view, once the public analysts report is superseded, it goes by the board. Nothing contained in the said report thereafter can be looked into by the court. The limited extent to which the contents of the report of the public analyst can go into evidence is laid down by section 13 (5 ). It is expressly made subject to the contingency that it is not superseded by the superior report of the Director. Until that eventuality occurs, the contents of the report of the public analyst may be looked into by the Court. But once the report of the public analyst may be looked into by the Court. But once, the report gets superseded it gets totally excluded from evidence and hence no part of the said report can then be considered as evidence of its contents. The entire report gets totally substituted and superimposed by the superior certificate of the Director. ( 22 ) IN view of this, submission of Shri Modi deserves to be accepted that when the Central Food Laboratory report becomes inadmissible for want of due compliance, that either with the provisions of Section 13 (2-B) of the Act or Rule 4 of the Rules, it would not be open for the prosecution or the Court to fall back upon the findings of the Public Analyst report. ( 23 ) THIS court in case of STATE OF GUJARAT v. BHUPENDRA M. MEHTA, (supra) in paragraph Nos. ( 23 ) THIS court in case of STATE OF GUJARAT v. BHUPENDRA M. MEHTA, (supra) in paragraph Nos. 6, 7, 8 and 9 observed as under :para 6 : From the report of the Central Food Laboratory, it is clear that the Central Food Laboratory has mentioned the condition of the seals on the container and the outer cover on receipt, as under :-The seals on sample container were intact and tallied with the specimen impression of seal given in copy of Form VII. The seals on outer cover of sample parcel were also intact and tallied with the specimen impression of seal given on copy of memorandum forwarded separately. Para 7 : Learned Advocate further submitted that on receiving an application for forwarding the sample to the Central Food Laboratory, it is necessary for the Court to call for the sample from the Local (Health) Authority, and on receipt of the part of the same from the Local (Health) Authority, the Court has to ascertain that the mark and seal or fastening as provided in clause (b) of sub- section (1) of Section 11 of the Act are in tact and the signature or thumb impression, as the case may be, is not tampered with. After satisfying this, the Court has to despatch the part of the sample under its own seal to the Director of Central Food Laboratory. In the instant case, there is nothing to indicate that the trial Court has followed the procedure as stated herein above. This Court could have, with the aid of Section 114 (e) of the Evidence Act, presumed the procedure to have been followed, but in the instant case, there is nothing on the record to show that the Court while forwarding the sample has forwarded separately the memorandum to the Director of Central Food Laboratory in Form 1. Rule 4 (i) (a) of the Rules contemplates that the sample of food for analysis under sub- section (2) of Section 13 of the Act shall be sent either through a messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form I in an outer cover addressed to the Director. Sub-rule (2) of the Rule 4 requires that the container as well as the outer covering of the packet shall be marked with a distinguishing number. Sub-rule (2) of the Rule 4 requires that the container as well as the outer covering of the packet shall be marked with a distinguishing number. Under Section 13 (2-B), duty is cast upon the Court to ascertain that mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 11 are intact and the signature or thumb impression as the case may be, is not tampered with. The legislature provided that after verifying these aspects the Court has to dispatch the part, or as the case may be, one of the parts of the sample under its own seal to the Central Food Laboratory. The Court has to forward a copy of the memorandum and specimen impression of the seal used to seal the container separately by registered post to the Director under sub-rule (3) of Rule 4. Duty is cast on the Director or the officer authorized by him to compare the seals on the container and the outer cover with specimen impression received separately and also to note the condition of the seals thereon. In the instant case, as stated in the foregoing paragraph it is mentioned in the analysis report of the Central Food Laboratory that the seals were intact and tallied with the specimen impression. It is clear that Form No. VII was forwarded. Form No. VII in accordance with Rule 17 is required to be forwarded to the Public Analyst by the Food Inspector concerned and not by the Judicial Magistrate First Class. Mr. Vora submitted that if the report would have indicated that the Central Food Laboratory received the memorandum separately in Form I, then certainly this Court can draw a presumption that memorandum was forwarded separately and with specimen impression of the seal used to seal the container. However, in absence of any material on record to indicate that the Court forwarded sample under its own seal or forwarded memorandum as contemplated under rule 4 (1) of the Rules, it would not be possible to come to a conclusion that the Court forwarded the sample under its own seal. It appears that breach of Section 13 (2-B) is committed insofar as forwarding the sample under Courts seal is concerned. It appears that breach of Section 13 (2-B) is committed insofar as forwarding the sample under Courts seal is concerned. Central Food Laboratory in its report has referred to Form No. VII but not Form No. 1, and therefore, under the circumstances, it is not possible to say that while forwarding the sample, the Court forwarded the same under its own seal. In the case of Bhagwandas Gurnomal v. State reported in 1974 FAC 373, learned Single Judge referred the matter to a Larger Bench wherein four issues were raised, one of which reads as under:-Whether sub-rule (3) of Rule 4 imposes a statutory obligation on the learned Magistrate to send to the Director of Central Food Laboratory, a copy of the memorandum along with the specimen of the seal of the food inspector used to seal the container or along with the seal of the Magistrate only. Para 8 :- The Division Bench, after considering in detail relevant provisions of the Act and the Rules, held that SJustice must also appear to be done, and, therefore, the only interpretation that can be put on the mandatory provision of Section 13 (2) and relevant Rule 4 (3) is that the Courts seal has to be applied both to the container and the paper cover and it is the specimen impression of the Court seal which has to be sent separately by registered post to the Director along with a copy of memorandum under Rule 4 (3 ). That is why even the memorandum in Form I in terms provides that a copy thereof and a specimen impression of seal used on the container and the cover by the Court shall be sent separately by registered post. That seal is clearly Courts seal within the meaning of Section 13 (2) and Rule 4 (3 ). para 9 : It is clear that there is nothing to indicate that Court applied its own seal after ascertaining the facts that seal was intact and there was no tampering with signature or thumb impression. Record indicates that Court merely forwarded the sample with the memorandum having a seal of the Food Inspector. In view of this, no reliance can be placed on the certificate. Thus, in view of the aforesaid position of law, record and proceedings of present appeal needs to be examined. Record indicates that Court merely forwarded the sample with the memorandum having a seal of the Food Inspector. In view of this, no reliance can be placed on the certificate. Thus, in view of the aforesaid position of law, record and proceedings of present appeal needs to be examined. ( 24 ) THE present respondents, who were the appellants before the learned Additional Sessions Judge, Mehsana in Criminal Appeal No. 20 of 1996 have taken up plea for assailing the judgment of the learned Magistrate in Criminal Case No. 205 of 1992 that the mandatory provisions of Section 13 (2-B) is not complied with. The appellants have further taken a plea before the appellate Court that the mandatory provisions of Rule 4 of the Rules have not been complied with and therefore, the certificate issued by the Director, Central Food Laboratory is inadmissible piece of evidence and therefore, the same cannot be made basis for convicting the accused. ( 25 ) THE appellate Court has observed in para 9 of the judgment that there is non-compliance of the provisions of section 13 (2-B) of the Act. It is also observed in the same para that prosecution has not established beyond reasonable doubt that there is due compliance of Rule 4 of the Rules in sending the sample to the Central Food Laboratory. The learned Appellate Court has also in para 11 has referred to the contention that trial Court has not recorded its satisfaction about the condition of seal on the sample. The appellate Sessions Court has further noted in its judgment that there is violation of Section 13 (2-B) of the Act due to serious infirmities in compliance with the same and learned Magistrate has erroneously recorded the conviction. In paragraph 12 of the judgment, the contention of the appellants original accused is recorded that the Appellate courts attention was drawn to Rule 4 of the Rules and it was contended that Rule 4 have not been complied with and accused cannot be punished. Looking to over all evidence on record, there is no evidence on the record to suggest that trial Court has recorded satisfaction about the condition of seals of the sample as it is mandatory under the provisions of Section 13 (2-B) of the Act. Looking to over all evidence on record, there is no evidence on the record to suggest that trial Court has recorded satisfaction about the condition of seals of the sample as it is mandatory under the provisions of Section 13 (2-B) of the Act. ( 26 ) SHRI Modi, learned counsel for the respondents original accused has invited this courts attention to the wordings of certificate issued by the Director, Central Food laboratory at Ex. 43 page-83 of the paper book and contended that in absence of any reference to Form No. I, it conclusively go to show that court had not sent the sample to the Central Food Laboratory in strict compliance with rule 4 of the Rules. He submitted that in case of State of gujarat Vs. Bhupendra (supra), identical wordings were employed in the certificate issued by the Director, Central food Laboratory, as they are employed in the certificate issued by the Director, Central Food Laboratory in the present case. The court in case of State of Gujarat Vs. Bhupendra had accepted the contention that the absence of reference to Form No. I in certificate, would suggest the fact that there was non-compliance of Section 13 (2-B) of the Act and Rule 4 of the Rules. It is therefore, expedient to set out the wording of the Central Food Laboratory in respect of the seal etc. , which is at Ex. 43 page 83, which reads as under :-The seals on sample container were intact and tallied with the specimen impression of seal given on copy of form VII enclosed. The seals on outer cover of sample parcel were also intact and tallied with the specimen impression of seal enclosed with copy of memorandum forwarded separately. ( 27 ) THE submission of Shri Modi deserves to be accepted as there is nothing on the record to show that court while forwarding the sample has forwarded separately the memorandum to the Director of Central Food Laboratory in form No 1. Rule 4 (i) (a) of the Rules contemplates that the sample of food being sent under the provisions of Section 13 (2) of the Act, shall be sent together with a memorandum in Form-I to the Director. The sub-rule (2) of Rule 4 makes it incumbent that the container as well as the outer covering of the packet shall be marked with a distinguishing number. The sub-rule (2) of Rule 4 makes it incumbent that the container as well as the outer covering of the packet shall be marked with a distinguishing number. This court, in case of State of Gujarat Vs. Bhupendra (Supra), has held on the identical facts that under Section 13 (2-B), duty is cast upon the court to ascertain that mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 11 are intact and the signature or thumb impression as the case may be, is not tampered with. The legislature provided that after verifying these aspects the Court has to dispatch the part, or as the case may be, one of the parts of the sample under its own seal to the Central Food Laboratory. In absence of anything on the record to suggest contrary, it is clear that there is a breach of mandatory provisions of Rule 4 of the Rules and Section 13 (2-B) of the Act and therefore, this case is squarely covered by the ratio laid down by this court in case of State of Gujarat Vs. Bhupendra (Supra) and on this count, the acquittal recorded by the learned Appellate court vide order dated 14. 6. 1996 deserves to be upheld and acquittal appeal deserves to be dismissed. Accordingly, the acquittal recorded by the Appellate Court i. e. the learned Additional Sessions Judge, Mehsana vide judgment and order dated 14. 6. 1996 in Criminal Appeal No. 20 of 1996 is hereby upheld and the acquittal appeal is dismissed. .