A.K. De, J.
1. The Administrator, Siliguri Municipality. prosecuted the opposite party under Section 16(1)(a) of the Prevention of Food Adulteration Act. 1954 (hereinafter called "the Act") for violation of Section 7(1) of the Act.
2. The case of the complainant was that the Food Inspector of the Municipality saw the accused carrying two cans of milk for sale on the carrier of his bicycle on 10-9-68 at about 8-30A.M. He stopped him and intimated the accused-opposite party that he would take samples from the milk of his cans. He gave the opposite party a notice in writ-Ing under Section 11(1)(a), took sample of milk, separated that sample into three parts, added 40% formalin as preservative and after sealing, labelling and fastening all the three parts sent one part, to the Public Analyst for analysis. He delivered one of the three parts of the sample to t)he opposite party. The Analyst reported on 27-9-68 that the sample was adulterated. A complaint was lodged before the Magistrate for his prosecution on 19-10-68. After trial, the learned Magistrate found the opposite party guilty under Section 16(1)(a) read with Section 7(1) of the Act and had sentenced him to suffer rigorous imprisonment for one day and to pay a fine of Rs. 100/- in default to suffer rigorous imprisonment for another month. The Municipality obtained this Rule under Section 439 read with Section 561-A of the Code of Criminal Procedure for enhancement of sentence on the ground that the minimum sentence, as provided in the Section 16(1). had not been given.
3. At the hearing of the Rule, the opposite party challenged the conviction as illegal under Sub-section (6) of Section 439 of the Code of Criminal Procedure. He submits that the conviction has been vitiated for non-observance of the mandatory provisions of Rules 7 and 18 of the Prevention of Food Adulteration Rules 1955. Sub-section (3) of Section 11 of the Act provides that when a sample of any article of food is taken under Sub-section (1) of Section 10. the Food Inspector shall send a sample of it in accordance with the rules prescribed for sampling to the public analyst for the local area concerned. Rule 14 of the Prevention of Food Adulteration Rules. 1955, to be hereafter called the Rules, prescribes the "manner of sending samples for analysis". Rule 15 provides the manner of labelling and addressing the containers. Rule 16 deals with manner of packing and sealing the samples. Rule 17 prescribes that the container of sample for analysis shall be sent to the public analyst enclosed together with a memorandum in Form VII in an outer cover addressed to the public analyst. Rule 18 provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately toy registered post or delivered to him or to any person authorised by him. The duties of the Public Analyst, as laid own in Rule 7, are that on receipt of a package containing a sample for analysis from a Food Inspector the Public Analyst shall compare the seals on the container and the outer cover with specimen impression received and shall note the condition of the seals thereon. Sub-rule (3) of Rule 7 substituted by G.S.R. 1533 dated 8th July 1968, obtains that after the analysis has been completed, the public analyst shall send to the person concerned two copies of the results of such analysis in Form III within sixty days of the receipt of the sample. The accused-opposite party refers to the evidence of P.W. 1, Sushil Kumar De. the Food Inspector of the Municipality, and points out that the prosecution has not proved that the specimen impression of the seal, used to seal the packet, was sent to the public analyst separately by registered post. Sushil Kumar De. P.W. 1 stated in his evidence that specimen impression of the seal used was not sent by registered .post, He stated that it was sent under a certificate of, posting. The person, who is said to have posted that, was not examined to say that the cover containing the specimen impression of the seal was handed over by him to the postal clerk and that Ext. 12, the certificate of posting was given to him for that by the said (postal clerk. In this state of evidence it cannot be said for certain that the Food Inspector sent the specimen impression of the seal, used to seal the packet, to the analyst for analysis as enjoined by Rule 18. It follows that the Public Analyst could not compare the seals on the container of the sample and the outer cover with the specimen impression required to be sent separately. That he could, and did not comply with Rule 7 (1) is further seen from the fact that there is no note about such comparison, or condition, of the seals thereon or in his report in Form III.
4. Mr. Maitra appearing for the State, with Mr. D. P. Choudhury, for the Municipality supporting him. contends that Rules 7 and 18 of the Rules are only directory and that even if there has been any non-compliance with those rules, the Court may on the evidence, find that the sample, examined by the Analyst, was the one taken from the accused. He also refers to the provisions of Section 13(2) of the Act which lays down that the accused may make an application to the Court for sending the part of the sample delivered to him under Section 11(1)(c)(i) or the third part retained under Section 11(1)(c)(in) to the Director for a certificate. He submits that as the accused has not availed himself of the provisions of Section 13(2), it may be taken that the sample analysed by the analyst was the sample seized from the accused-opposite party. We are unable to accept his contention. Rules require that the Food Inspector sends a sepcimen impression of the seal to the Analyst separately in order that he can compare the seal on the container of the sample with the specimen seal to be sure that the sample seized had reached him bearing the same seal and in the same condition. In this case, we have held that the Food Inspector did not send the specimen impression of the seal and thus made it impossible for the Analyst to ensure himself that the sample sent to him was the sample seized from the accused. In a trial for an offence under Section 16 for violation of Section 7 of the Act conviction rests only on the report of the Analyst as to adulteration. It is, therefore, necessary to see that the rules prescribed have been followed and that the report, after compliance with the rules, has been placed before the Court, Rule 18, read with Rule 7, prescribes "that the memorandum and the specimen impression are to be sent separately. So far that part is concerned it cannot but be mandatory, though one may argue that the manner of sending, namely, by registered post or by hand, is directory. Rule requiring the Food Inspector to send the specimen impression and the memo separately can only be complied with by actually sending those. The manner of sending, may be taken as recommendatory and it may be proved by other evidence or legal presumption under Section 114 of the Indian Evidence Act, illustration (g). where available in a particular case that the articles, sent otherwise than by the prescribed mode, actually reached the Analyst. We. therefore, for the purpose of the case, hold that observance of Rules 7 and 18, so far they prescribe sending of the specimen impression of the seal separately, is mandatory. It may be pointed out that the Analyst's report, even if it is taken that he got the sample with seals intact, is not of any value as his report is not in Form III. where the line "The seal on the container of the sample tallied with specimen impression of the seal separately sent by Food Inspector and the sample was in a condition fit for analysis," inserted by G.S.R. 1533 of 8-7-68 is not there. The report cannot be used as evidence under Section 13(5) of the Act as it is not in prescribed Form III, as amended in July, 1968.
5. We may refer here to the case of Daitari Mahto v. State reported in 1971 Cri LJ 129 (Pat.) where Anwar Ahmed, J. speaking for the Court observed : "It is by now well-nigh settled that Rules 18 and 7 are mandatory and the non-compliance with either of them vitiates the trialvide Mary Lazrado v. State of Mysore AIR 1966 Mys 244 : (1966 Cri LJ 1036); State of Gujarat v. Sbantaben ; State of
Madh. Pra. v, Abbasbhai Tyab Ali Bohra. 1967 Cri LJ 1723 (M. P.). All the above cases have been followed by S.P. Singh, J. in Gopal Sao v. State of Bihar. 1968 BLJR 308. The decision in Gopal Sao's case,1968 BLJR 308 has been followed in a large number of cases by various Judges of this Court sitting singlyvide Anand Mohan Choudhury v. State, Criminal Revn. 1868 of 1967. D/- 21-8-1968 (Pat.); Harichand v. State of Bihar, Criminal Revn. No. 704 of 1967, D/- 20-9-1968 (Pat.); Chhedi Sah v. State. Criminal Revn. No. 945 of 1968 decided on December 1968 (Pat.); Qamruddin v. State, Criminal Revn. No. 726 of 1968, D/- 21-1- 1969 (Pat.); Baluram Agarwalla v. State, Criminal Revn No. 846 of 1968, D/-17-2-1969 (Pat.); Badrisah v. State of Bihar, 1969 Pat LJR 217; learned Counsel for the State drew our attention to the Single Judge decision of the Allahabad High Court in Kamal Singh v. State, 1957 All LJ 89, wherein Rr. 7, 15, 17 and 18 have been held to be directory; but I would prefer to follow a recent Bench decision of the Mysore High Court in AIR 1968 Mys 196 : (1968 Cri LJ 952). Belgaum Borough Municipality v. Shridhar Shankar Kun-dri, wherein their Lordships held that Rr. 7 and 18 were mandatory in nature and non-compliance with the same affected the evidentiary value of the report of the Public Analyst and, in the absence of extraneous evidence, vitiated the conviction. In that case, their Lordships quoted with approval the following observations of Tukot. J. made in Mary Lazrado's case AIR 1966 Mys 244 : (1966 Cri LJ 1036).
The rules which prescribe the procedure to be followed in packing, sealing and despatching the same by the Food Inspector in the discharge of his duties serve two objects. Firstly, they have no scope for tampering with the article of food which is once sealed and packed in the prescribed manner in the presence of respectable witnesses. Secondly, the requirement to send a specimen impression of the seal used by the Food Inspector in a separate packet is to enable the Public Analyst to verify the seal of the packet of sample before him and to ensure him that the sample he is to analyse is the self-same sample received from the Inspector. This method of check and verification provided for by the rules is the only guarantee against tampering and is a definite source of confidence both to the accused and to the court that the sample analysed was the very sample which had been submitted by the Food Inspector- In fact, it is the report or the certificate issued after such analysis that virtually concludes the accused against himself. The procedure prescribed by the Rules serves a great public purpose by guaranteeing impartial and honest handling of the sample despatched to and received for analysis by the Public Analyst.
To argue that the Rules could be regarded as directory because the accused is given the liberty of submitting the sample in his possession for analysis is to render the guarantee afforded by the Rules meaningless. The burden of proving the guilt of the accused is on the prosecution and if the report or the certificate is to be used as evidence without calling the Public Analyst or the Director of the Central Laboratory for evidence as the law now permits then it is imperative that all the Rules prescribing the procedure commencing from the stage of purchasing the sample of food leading up to its analysis are strictly observed. To argue that the accused has got the liberty of getting his sample analysed to counteract the effect of the report of the Public Analyst is to require the accused in every case to prove his innocence.
6. With respect, we entirely agree with the observations made in the above case and hold that Rules 7 and 18 are mandatory in nature and any non-compliance with the same makes the conviction illegal. We are, therefore, of the view that the trial in this case has been vitiated and the conviction is bad in law.
7. The learned Advocate appearing for the opposite party raised certain other contentions in challenging the legality of the conviction and in justification of the extent and legality of the sentence. But as we have held that the conviction has been vitiated for non-compliance with Rules 7 and 18, we do not propose to go into those questions.
8. In view of the above conclusion the Rule for enhancement of sentence has become infructuous and shall bye discharged.
9. In the result, the Rule is discharged. The conviction of the opposite party and the sentence imposed on him are set aside. Fine, if paid by or realised from him, be refunded to him.
Sankak Prasad Mitra, C.J.
10. I agree.