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Allahabad High Court · body

2018 DIGILAW 2206 (ALL)

Jugul Kishore v. State Of U. P.

2018-10-12

J.J.MUNIR

body2018
JUDGMENT : J.J. Munir, J. 1. This Criminal Revision is directed against a judgment and order of Sri D.R. Singh, the then Sessions Judge, Jalaun at Orai, dated 08.02.1990, dismissing Criminal Appeal no.36 of 1989, and, affirming a judgment and order of Sri Guru Sharan Srivastava, the then Judicial Magistrate, Jalaun at Orai, dated 15.07.1989 passed in Criminal Case no.197 of 1986, convicting the revisionist under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954, and, sentencing him to six months' RI and a fine of Rs.1000/-; in default, to undergo a further term of three months' imprisonment. 2. The facts giving rise to the present revision are that the then Food Inspector, Chiraiya Salempur, one R.R. Bhatt, checked at mid day, on 22.01.1984 the wares displayed for sale at the Bus Station, Jalaun, by the revisionist. The food item displayed for sale was Khowa, carried in 4 – 5 containers. The Inspector disclosed his identity and made inquiries about the article of food offered for sale. He asked the revisionist to give him 50 grams of Khowa for the price of it, to be utilized as a sample for analysis. A notice for the purpose was served in the presence of witnesses. This notice is marked as Ex. Ka-1. Signatures of the witnesses, as well as the revisionist, were secured on the relevant documents. Rupees nine were paid in price of the Khowa collected as sample, to be sent to the Public Analyst, and, for the money paid, a receipt was obtained from the revisionist, that is marked as Ex. Ka-2. 3. The article of food was divided, into three equal parts. Each of the parts were kept, in dry and clean polythene bags. Twenty drops of formalin, with a strength of 40%, were added to each bag of the sampled Khowa, whereon a label was pasted and signatures of the revisionist obtained. The Food Inspector also signed each of the labels. Code slip issued by the Chief Medical Officer was also pasted according to Rules, in Form – VII, and, six copies were drawn up and tagged to each bag. One of such duly sealed bags was sent by registered parcel on 23.01.1984, to the Public Analyst. Form VII, one in number, was sent separately with the specimen seal the same day to the Public Analyst, a copy of which is Ex. Ka-3. One of such duly sealed bags was sent by registered parcel on 23.01.1984, to the Public Analyst. Form VII, one in number, was sent separately with the specimen seal the same day to the Public Analyst, a copy of which is Ex. Ka-3. A report from the Public Analyst dated 28.02.1984 was received, to the effect that the milk fat in the article was 5.6%, which is below the prescribed limit by 20%. 4. Upon going through the report, the Food Inspector submitted his own report. The report of the Public Analyst was marked as Ex. Ka-4. The Food Inspector submitted his report dated 04.04.1984, along with all relevant papers to the Chief Medical Officer, for the according of his sanction. The report of the Food Inspector is marked as Ex. Ka-5. The Chief Medical Officer on going through the documents granted sanction through his memo dated 06.04.1984, that is marked as Ex. Ka-6. A challan report was drawn up, on 09.04.1984. A notice under Section 13(2) of the Act was drawn up on 12.04.1984, and, it was sent along with a copy of the report of the Public Analyst, for dispatch. In due course, it was dispatched to the revisionist under registered post. 5. The learned Magistrate summoned the revisionist, and, charged him under Section 7 read with Section 16 of the Food Adulteration Act, and, hereinafter referred to as the 'Act'. The accused denied the charge and claimed to be tried. 6. The prosecution examined the Food Inspector, R.R. Bhatt, PW-1, Food Clerk, S.C. Dwivedi, PW-2, and, the Dispatch Clerk, Mahatam Singh, PW-3. 7. The revisionist stated about the prosecution case, that he was implicated falsely due to enmity. He filed a copy of the judgment and the statement of Food Inspector, R.R. Bhatt in Criminal Case no.954 of 1984, State vs. Rajendra Prasad. 8. The learned Magistrate after hearing parties, and, looking into evidence available on record held the revisionist guilty, convicted and sentenced him to a term of six months' RI and imposed a fine of Rs.1000/-. 9. Aggrieved by the order of the Magistrate, the revisionist went up in appeal to the learned Sessions Judge. His appeal was numbered as Criminal Appeal no.36 of 1989 on the file of the learned Sessions Judge, who on hearing the appeal, by his judgment and order dated 08.02.1990 proceeded to dismiss the appeal, and, affirmed the Magistrate. 10. 9. Aggrieved by the order of the Magistrate, the revisionist went up in appeal to the learned Sessions Judge. His appeal was numbered as Criminal Appeal no.36 of 1989 on the file of the learned Sessions Judge, who on hearing the appeal, by his judgment and order dated 08.02.1990 proceeded to dismiss the appeal, and, affirmed the Magistrate. 10. Aggrieved the present revision was filed to this Court on 16.02.1990, seeking reversal of both orders impugned. 11. This revision was admitted to hearing the same day, and, the revisionist was ordered to be released on bail. Realization of fine was stayed pending revision. 12. Heard Sri Udai Karan Saxena, learned counsel for the revisionist and Sri Indrajeet Singh, learned A.G.A. for the State, and, perused the record. 13. Sri Udai Karan Saxena has confined his argument to two legal submissions that according to the learned counsel, go to show that both the impugned orders are manifestly illegal, and, vitiated. 14. The first submission is that the provisions of Section 13(2) of the Act have not been complied with, inasmuch as, all that the prosecution have proved by the evidence on record is that a notice under Section 13(2) of the Act along with a report of the Public Analyst, was forwarded to the revisionist. What they were required to prove by dint of the law strictly was that the notice under Section 13(2), along with report of the Public Analyst, was actually served. He submits that the requirement of proving service under Section 13(2) of the Act is mandatory and that is not complied with, by establishing dispatch through registered post, on a presumption that in due course of post, the notice would have been served. 15. The requirement of Section 13(2) is, that it must be proved by positive evidence that the notice was actually served, like placing on record an acknowledgment, or may be, a certificate from the post office about delivery. The said requirement having been observed in breach, the mandate of Section 13(2) has been violated, and, that vitiates the impugned judgments of conviction. There is something further to Section 13(2) that has not been complied with, according to the learned counsel, Sri Saxena. It is argued that it is not just that, that the report of the Public Analyst,s has to be forwarded to the accused. 16. There is something further to Section 13(2) that has not been complied with, according to the learned counsel, Sri Saxena. It is argued that it is not just that, that the report of the Public Analyst,s has to be forwarded to the accused. 16. In addition to discharging their obligation by the Local Health Authority of forwarding the report of the Public Analyst, along with it, the notice must inform the accused, that if he so desires, he may make an application to the Court, within a period of 10 days from the receipt of copy of the report, to get the sample of article of food kept with the Local Health Authority, analyzed by the Central Food Laboratory. It is submitted that there is nothing on record to show, and, for a fact, does not show, that this communication was made to the revisionist. No finding also, either by the Trial Court or the Appellate Court, who are courts of fact and have written elaborate judgments, is returned to the above effect. It is submitted that on this count also, the mandatory requirements of Section 13(2) of the Act have been violated, vitiating the conviction. 17. The second count on which Sri Saxena has assailed the judgments of the two courts below, as manifestly illegal, is violation of Rule 14 of the Prevention of Food Adulteration Rules that prescribes the manner of sending a sample for analysis. Rule 14 mandates that the sample of food for the purpose of analysis, shall be placed in clean dry bottles or jars, or in other suitable container, which shall be closed sufficiently tight, to prevent leakage, evaporation or, in case of dry substance, entrance of moisture and shall be carefully sealed. It is submitted in the present case that no bottle, jar or other suitable container, much less one that was clean and dry, was used. Instead, the food article sent for analysis was sealed in polythene bags, that do not conform to the mandatory requirement of Rule 14. 18. The learned A.G.A. has supported the impugned judgments passed by the two courts below, and, on both counts has submitted that the courts below, in particular, the appellate court has returned elaborate findings that there is substantial, as well as strict compliance, with Section 13(2) of the Act and Rule 14 of the Rules. 18. The learned A.G.A. has supported the impugned judgments passed by the two courts below, and, on both counts has submitted that the courts below, in particular, the appellate court has returned elaborate findings that there is substantial, as well as strict compliance, with Section 13(2) of the Act and Rule 14 of the Rules. Both courts, on a wholesome consideration of evidence have returned a concurrent finding of guilt, that is not open to interference by this Court, in the exercise of its revisional jurisdiction. 19. In support of the contention that there is breach of Section 13(2) of the Act, on two facets of it, learned counsel for the revisionist has relied on a decision of the Orissa High Court in Bidyadhar Jena vs. State of Orissa 1991 Cri.L.J 2700, where A. Pasayat, J (as His Lordship then was) after a copious review of authority held: “5. On consideration of the rival submissions, I find that S. 13(2) confers a valuable right on the accused to prove his innocence by getting the sample tested by Central Food Laboratory. The requirements of Section 13(2) are mandatory, as held by this Court in 1989 Cri LJ 264 (M/s. Sashikant and Co. and six Ors. v. The State of Orissa). The following observations of Supreme Court in AIR 1967 SC 970 (Municipal Corporation of Delhi v. Ghisa Ram), puts the matter beyond a shadow of doubt (AIR 1967 SC 972): "It appears to us that when a valuable right is confined by S. 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by the court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein." The further question that arises for consideration is whether the mere despatch of a letter per se can raise presumption of service of the same. May be, in certain cases a presumption is available, where the letter is sent by registered post, properly addressed. But in order to satisfy the rigid requirements of S. 13(2), which confers a valuable right on the accused to prove his evidence, the actual receipt has to be established by the prosecution. In the instant case, it only appears from the records that there is a receipt of the postal department showing that a letter was addressed to one B. D. Jena of Sundargarh. There is also no evidence forthcoming from record that the aforesaid B. D. Jena is the petitioner. None of the prosecution witnesses has even breathed a word about this aspect. Specific complaint of the petitioner was about non-service of copy of the report on him. Significantly the acknowledgement receipt is also not produced and exhibited and no attempt has been made to explain as to why the same was not tendered in evidence. Further, S. 13(2) provides for intimation to the accused about the availability of a remedy to get the sample tested in the Central Food Laboratory. The report of the Central Food Laboratory supersedes the report of the public analyst. It is not despatch, but service which would be compliance of the requirements of S. 13(2). Further, S. 13(2) provides for intimation to the accused about the availability of a remedy to get the sample tested in the Central Food Laboratory. The report of the Central Food Laboratory supersedes the report of the public analyst. It is not despatch, but service which would be compliance of the requirements of S. 13(2). It would be relevant to quote certain conclusions of a Full Bench of the Punjab and Haryana High Court in 1989 (I) FAC 81 (The State of Punjab v. Deboo), where Justice M. M. Punchhi (as his Lordship was then) observed as follows:-- "......If sending of the report by the Local (Health) Authority is mandatory u/s 13(2) of the Act read with R. 9-A of the Rule a fortiori it sequels that it is mandatory for the Local (Health) Authority simultaneously to expressly inform the accused that if it is so desired an application can be made by him or them to the Court within a period of 10 days from the date of receipt of the copy of the report to get the sample of article of food kept by him analysed by the Central Food Laboratory. And if he sends the report and not draws the required attention of the accused to such statutory right, it would in our view be again fatal to the prosecution. x x x x x x Thus in our considered view, both the requirements of S. 13(2) of the Act i.e. sending of the report of the Public Analyst and drawal of specific attention of the accused to his right are mandatory and non-compliance of both or complaints of one and not the other, would in both events be fatal to the prosecution. So, this part of S. 13(2) of the Act, we hold as mandatory non-compliance of which and in any event uptil the commencement of effective Court proceedings would vitiate the proceedings. The other parts of the provision where time schedule is laid or prescribed, or expedition expected, we hold as directory, fatal to the prosecution only if material prejudice can be shown to have been caused to the accused by delayed compliance or observance thereof and in that sense non-compliance. We hold accordingly." The absence of intimation to the petitioner that the sample collected from him under Rule 9A of the Rules was adulterated, renders it an illusory remedy. We hold accordingly." The absence of intimation to the petitioner that the sample collected from him under Rule 9A of the Rules was adulterated, renders it an illusory remedy. Mere despatch of the document without proof of service is not sufficient compliance of the requirements of law. A combined reading of S. 13(2) and R. 9A makes it clear that the legislative intent was to intimate the accused the result of analysis of the sample collected from him, and to give him the option of exercising his right to get the sample tested by the Central Food Laboratory. As held by this Court in the case of Bijay Kumar Ram (supra), the prosecution has to show that the copy of the report in question was in reality served on the intended person. Similar view was also expressed by this Court in the case of Rama Chandra Sahu v. State of Orissa reported in 1985 (1) OLR (NOC) 29 (sic).” 20. The principles discerned from the said authority, that in turn, is based on a decision of their Lordships of the Supreme Court and a Full Bench decision of the Punjab And Haryana High Court, clearly are to the effect that mere evidence of dispatch of notice under Section 13(2) of the Act, along with a copy of public analyst's report by the prosecution is not enough compliance, unless there is evidence produced to show acknowledgment of receipt, also. This, of course, would not apply to a case where service is admitted to the accused. The second requirement is that the notice must expressly inform the accused, that if he so desires, an application may be made to court within a period of 10 days to have the sample analysed by the Central Food Laboratory . Failure to draw the attention of the accused specifically to the statuary right, would vitiate the persecution. 21. In the present case, there is no acknowledgment of fact by the accused that notice along with a copy of the report of the public analyst, was received by him. It was, therefore, for the prosecution to prove by evidence aliunde, not just the factum of dispatch of notice under Section 13(2) of the Act together with a copy of report of public analyst, but to prove the factum of actual receipt of notice along with a copy of report under reference. It was, therefore, for the prosecution to prove by evidence aliunde, not just the factum of dispatch of notice under Section 13(2) of the Act together with a copy of report of public analyst, but to prove the factum of actual receipt of notice along with a copy of report under reference. A perusal of the record in the present case shows, that the notice dated 12.04.1984 was dispatched by Registered Post Acknowledgment Due, to the revisionist along with a copy of the report of public analyst dated 28.02.1984. The dispatch is proved by examining during trial, the dispatch clerk in the Local Heath Authority, Mahatam Singh, PW-3, who produced before the Trial Court, the dispatch and SPS registers. The appellate court has recorded that entries were made in those registers about dispatch of notice along with a copy of the public analyst's report to the revisionist, under registered post. The appellate court has further recorded a finding that registered postal receipts have also been filed, and there is also a finding that the registered cover was not received back in the office undelivered. The appellate court has presumed good service, in due course of post, in accordance with the presumption of fact raised under the general law under section 114 of the Evidence act and section 27 of General Clauses Act. Section 27 is particularly relevant: “Section 27 -Meaning of service by post – Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 22. The requirement of Section 13(2) of the Act read with rule 9-B (or under the pre amended law rule 9-A) is not about dispatch of notice under Section 13(2) along with a copy of the public analyst's report but service or delivery of such notice and report that would constitute compliance with the mandatory requirement of Section 13(2) as held in Bidyadhar Jena (supra). The requirement about proving service, not just dispatch under the Act, would exclude the applicability of the general law about good service, based on a presumption under Section 27 General Clauses Act and section 114 Evidence Act. The prosecution have to prove the fact of service by producing evidence aliunde, not just the dispatch of notice, in order to be in accord with Section 13(2). In the present case, admittedly, no acknowledgment card or other evidence, such as, a certificate of delivery of the registered postal cover by the postal department has been placed on record, which in the opinion of this Court would fall foul of the requirement of Section 13(2) of the Act read with the relevant rule in force, at the relevant time. Thus, in the opinion of this court there is no good compliance of Section 13(2) of the Act, for the prosecution's failure to establish service of notice along with a copy of report of public analyst upon the Revisionist envisaged under Section 13(2) of the Act. 23. So far as the other limb of attack by the revisionist based on Section 13(2) is concerned, this court finds that on a perusal of the notice of Section 13(2) available on record, it is clearly mentioned there that in case the accused wants analysis of the sample by the Central Food Laboratory, Calcutta, he has a right to move the court within 10 days of receipt of notice, along with the report of public analyst. Thus on facts, there is no failure on part of the prosecution, to apprise the revisionist of his statuary right under Section 13(2) of the Act. The prosecution cannot be faulted on this ground. 24. Turning to the other submission by the learned counsel for the revisionist based on violation of Rule 14 of the rules framed under the Act, it would be profitable to refer to provisions of Rule 14 : “Rule 14. – Manner of sending sample for analysis.— Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed.” 25. – Manner of sending sample for analysis.— Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed.” 25. In this connection the law as to weather a polythene bag, which is the case involved on facts here, would be covered by the definition of “other suitable container”, envisaged under Rule 14, has been answered elaborately in a Full Bench Decision of the Punjab and Haryana High Court in State of Punjab vs. Raman Kumar, 1998 Cri.L.J 737(FB). Referring to a glimpse of facts in Raman Kumar (supra) polythene was not held to be a “other suitable container” within the meaning of Rules 14, and, disagreeing with the decision of the Andhra Pradesh High Court in Food Inspector, Bhimavaram Municipality v. Kapouravari Venkateswarulu, 1994 Crl. L.J. 414, it was said thus : “22. It may be noted that in the case in hand, the Food Inspector had purchased six packets out of 12 packets of 100 gms. each which were wrapped in polythene papers and on which it was printed as Kashmiri Mirch Chillies Powder M.S. Company, Delhi Trade Mark. The so purchased packets were made into three packets containing 2 packets in each parcel. Each parcel was labelled wrapped in a strong thick khakhi paper and a paper slip bearing serial number and signatures of LHA Hoshiarpur were pasted on each parcel lengthwise covering top and bottom of each parcel and making the ends of slip join with the help of gum. Each sample parcel was fastened with a strong thread and were sealed with the seal of the Inspector at four distinct places as prescribed. Each sample parcel was got signed by the accused in such a way that one portion of the signature was on the slip and other portion on the wrapper. The Food Inspector also signed in the same manner and put his sample number. 23. In the case in hand, thus, the packets purchased by the Food Inspector were not put in any container. Each packet was wrapped in a thick khakhi paper as provided in Rule 16 of the Rules. 24. The Food Inspector also signed in the same manner and put his sample number. 23. In the case in hand, thus, the packets purchased by the Food Inspector were not put in any container. Each packet was wrapped in a thick khakhi paper as provided in Rule 16 of the Rules. 24. By this reference, we are called upon to decide as to whether a sample taken in a wrapper of strong thick paper is in violation of Rules 14 and 16 of the Rules. From the facts of the case, it may be taken that the sample was taken as such which was contained in a polythene wrapper and then wrapped in a thick khakhi paper under Rule 16 of the Rules. 25. We will advert ourselves to decide the question as to whether a polythene, container or a wrapper of strong thick paper are covered under the definition of other suitable container as provided under the provisions of Rule 14 of the Rules. 26. The expression other suitable container used in Rule 14 of the Rules cannot be defined as such and this expression suitable container cannot be confined in a straitjacket. There may be scores of suitable containers as defined in the rules and as such it is difficult to furnish with exactitude the list of such suitable containers. 27. The only point to be determined is as to whether a polythene container or a wrapper of strong thick paper can be called suitable containers as defined in rule 14 of the Rules. Rule 14 provides that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers, which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. A reading of the rule gives us a clear impression that other suitable containers mentioned in the rule connotes that it should be as hard as bottles and jars and also could be closed sufficiently tight to prevent leakage, evaporation and in the case of dry substance entrance of moisture. The words bottles and jars are generally understood as closed bottles or glass jars. 28. The words bottles and jars are generally understood as closed bottles or glass jars. 28. When interpreting other suitable containers, the provisions contained in rule 14 of the Rules have to be read as a whole and the words suitable container take the hue from the words used in the rule itself. The words bottles or jars mentioned before other suitable container in rule 14 itself indicates that a suitable container should be as hard as a closed bottle or as a glass jar. The expression used in rule 16(a) which reads as under: “16(a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit.” 29. Is also indicative of the fact that the container stipulated in rule 14 will have a stopper also. With the advancement of time some other containers are also available which are as hard as closed; though they may be made of some other hard substance like tin, hard plastic or other material like the one in which we get tooth paste, cream etc. In sum and substance a suitable container as defined in rule 14, should be of an impervious character which should be closed sufficiently tight and carefully sealed to prevent leakage, evaporation or entrance of moisture. 30. In our considered view, polythene containers or a wrapper of strong thick paper cannot conform to a definition of container as contained in rule 14 of the Rules. The polythene bags or a thick paper have got a chance of being pierced. They are most susceptible to moisture, rodents, pests and can even burst with a little more pressure put on them. Such type of containers are not in a position of being closed tightly to prevent leakage etc. A thick paper packet has the chance of even being completely wet and again is unable to prevent entering moisture into it. There are every chances of such type of containers being affected as stated above not by design but even by chance when in transit i.e. after the sample is taken by the Food Inspector in such containers and thereafter it reaches the laboratory for final analysis. 31. In Food Inspector, Bhimavaram Municipality v. Kapouravari Venkateswarulu, 1994 Crl. There are every chances of such type of containers being affected as stated above not by design but even by chance when in transit i.e. after the sample is taken by the Food Inspector in such containers and thereafter it reaches the laboratory for final analysis. 31. In Food Inspector, Bhimavaram Municipality v. Kapouravari Venkateswarulu, 1994 Crl. Law Journal 414, a Division Bench of Andhra Pradesh High Court, with respect, did not give any reasons as to how the polythene bags could stand the test of a suitable container as defined in rule 14 of the Rules. It has only been mentioned in that judgment which reads as under: “It is elementary that a ‘container’ means that which contains, and ordinarily cannot exclude a container made of polythene.” 32. The legislature in its wisdom has used the expression a suitable container in rule 14. This expression must be given its cogent and reasonable meaning on the one hand and should be interpreted in a manner so as to ensure the implicit protection available to an accused under these provisions on the other hand. The view expressed by the Division Bench of the Andhra Pradesh High Court has also indicated such meaning by holding that ordinary container may not exclude a container of polythene. Suitability of a container emphasises the need that such a container should be one which would prevent leakage, evaporation and entrance of moisture. In other words, suitable container must also exclude the possibility of its being tampered with in the ordinary course of nature. Once the container satisfies these conditions it would be a suitable container and then the concerned Inspector is obliged to satisfy the requirements of rule 16 of the Rules with regard to collection and sealing of the sample. 33. In view of our discussion made above, we cannot consider a container made of polythene and a thick paper wrapper as a suitable container as contemplated under rule 14 of the Rules. 34. We respectfully disagree with the views expressed by the Hon'ble Judges in Food Inspector Bhimavaram Municipality's case (supra), wherein it has been held that a polythene container is a suitable container as defined in rule 14 of the Rules. The reference is, thus, returned accordingly by holding that a polythene container or a thick paper wrapper are not suitable containers as envisaged under rule 14 of the Rules.” 26. The reference is, thus, returned accordingly by holding that a polythene container or a thick paper wrapper are not suitable containers as envisaged under rule 14 of the Rules.” 26. In this connection reference may also be made to a decision of Delhi High Court in Yogender Singh and others vs. State and Another WP. ( Crl.). No. 1511 of 2009 decided on 19.02.2010 where, examining the issue weather polythene employed to pack food samples (in that case wheat) drawn for analysis, accord with the requirements of Rule 14 and 16 of the Rules,it was held: “14. Admittedly, the officers who took samples from the truck as well as from the godowns of FCI used polythene bags for the purpose of keeping the wheat drawn as sample. As noted by the Public Analyst, all the polythene bags were loose when received by him. The contention of the petitioner is that polythene bag was not a suitable container envisaged in Rule 14 and the provisions of Rule 14 being mandatory, the prosecution is liable to be quashed on this ground alone. In support of his contention, the learned Counsel for the petitioners has referred to the decision of a Full Bench of Punjab & Haryana High Court in State of Punjab v. Raman Kumar : 1998 Crl.L.J. 737, and the decision of the Gujarat High Court in State of Gujarat v. (Gujarat). 15. In the case of Raman Kumar (supra), sample of red chilly powder was taken in a wrapper of strong thick paper. The issue before the Full Bench of the High Court was as to whether a polythene containers or a wrapper of strong thick paper were covered under the definition of other suitable container, given in Rule 14 of the Rules. The High Court, after examining the Scheme of the Rules held that container or a wrapper of strong thick paper dos not confirm to definition of container given in Rule 14. During the course of judgment, the High Court, inter alia, observed as under: x x x x x x [quoted portion from Ramaman Kumar (supra) supra omitted for sake of brevity] 16. The High Court found itself in disagreement with the view taken by Andhra Pradesh High Court in Food Inspector Bhimvaram Municipality v. Kopouravari Venkateswarulu : 1994 Crl. L.J. 414, which had taken a view that a polythene bag was a suitable container. The High Court found itself in disagreement with the view taken by Andhra Pradesh High Court in Food Inspector Bhimvaram Municipality v. Kopouravari Venkateswarulu : 1994 Crl. L.J. 414, which had taken a view that a polythene bag was a suitable container. I Find myself in full agreement with the view taken by Punjab & Haryana High Court as regard nature of the container envisaged in Rule 14 of the Rules. The polythene bag, if used for keeping the sample of foodgrains, runs the risk of its getting torn or otherwise damaged, particularly while in transit. In fact, such bags may get damaged or torn even while they are in the custody of the Local Health Authority or they are in Malkhana, as the case may be. If that happens, there is a strong possibility of moisture etc. entering the bag thereby affecting the quality of the food article kept in it. Entry of moisture may result in rendering a food substance such as wheat, unfit for human consumption. If the bags are torn or damaged that may facilitate entry of pests etc. in the bags, thereby rendering them unfit for consumption and becoming adulterated product within the meaning of the Act. Since Rule 16 of the Rules specifically provides for fastening of the stopper of the container used for keeping the sample and there being no stopper in polythene bag compliance of this requirement will not be possible and, therefore, this could never have been the intention of the legislature to treat polythene bags as a suitable container within the meaning of Rule 14 of the Rules.” 27. A perusal of the said Rule, together with Rule 16, do not spare any doubt that containers envisaged, for the purpose of packing samples (for analysis) show that the words “other suitable containers” which are required be closed sufficiently tight, to prevent leakage, evaporation or, in case of dry substance, to prevent entry of moisture, and, are to be carefully sealed, have been employed just after specific words, “dry bottles or jars”; that would mean that the generic words, “other suitable containers”, are to be construed ejusdem generis. This appears to be the clear legislative intent. A polythene bag that was employed in the present case, is certainly in violation of rule 14 of the Rules, and, would vitiate the prosecution. 28. In the result, the revision succeeds and is allowed. This appears to be the clear legislative intent. A polythene bag that was employed in the present case, is certainly in violation of rule 14 of the Rules, and, would vitiate the prosecution. 28. In the result, the revision succeeds and is allowed. The impugned judgment and order dated 08.02.1990 passed by the Sessions Judge, Jalaun at Orai in Criminal Appeal no.36 of 1989 and the impugned judgment and order dated 15.07.1989 passed by the Judicial Magistrate, Jalaun at Orai in Criminal Case no.917 of 1986, under Section 7 read with Section 16 of the Act are hereby set aside and the revisionist stands acquitted. The revisionist is on bail. He need not surrender. His bail bonds stand cancelled and the sureties discharged. 29. Let the lower court records be sent down and a copy of the judgment be certified to the trial court forthwith.