(1.) THE accused in C. C. 105/65 of the District magistrate's Court, Alleppey is the revision petitioner. He was convicted by the learned Magistrate under S. 16 (1) (a) (ii) read with S. 7 (i) of the prevention of Food Adulteration Act Act 37 of 1954 (shortly stated the Act) for the alleged sale of adulterated tea decoction on 25 21965 to pw. 1, the Food inspector, and sentenced to undergo S. I. for one year and to pay a fine of Rs. 2000/ -. It was found that he was a repeater and that fact was also taken into consideration in awarding the sentence. He appealed to the Sessions Judge of alleppey in criminal appeal 54/65 and the conviction and sentence were confirmed by the learned Judge. Against that, Cr. R. P. 41 of 1966 was filed before this court and here the point was taken that a request made by the accused under S. 13 (2) of the Act to send the sample entrusted to him by the food Inspector, for analysis by the Central Food Laboratory was rejected by the appellate court and that in effect was a negation of a right vested in him by the statute. That ground was upheld by this court and the conviction and sentence were quashed and the case was remanded to the learned appellate judge for fresh hearing after giving the accused an opportunity to get the sample analysed by the Central Food Laboratory. After remand, the sample in the possession of the accused was produced in court on 1712 66. THE learned judge on 1912 66 examined the Food Inspector and the Food Inspector stated in the course of his evidence that the sample produced by the accused was found tampered with. He stated that the seal on the cork had been removed and the string with which it was tied also had been tampered with. At the foot of the deposition, the learned judge has added a note as follows: "it appears to me that the seal on the cork also is tampered and cork is taken out. " All the same, the sample was sent to the central Food Laboratory for analysis and the report received shows that the tea decoction was not adulterated as it did not contain added colouring matter. THE report was received in court on 18 3 67. In the report there is the further endorsement that "the seals were intact". THE learned judge was not prepared to accept this report, as according to him the sample sent for analysis was different from the sample that Pwl had entrusted to the accused. To quote the learned judge's own words: "i am of opinion that the sample now sent to the central Food Laboratory is not the sample that was taken by Pwl and hence no reliance can be placed on the report of the Central Food Laboratory, which shows that the sample was not adulterated. " THEre is also the further feature that on 1712 66 when the accused produced the sample with him in court, a petition was moved by him praying that MO. 1 which Pwl had produced in court at the very beginning might be sent for analysis, to the Central Food Laboratory. On that the court could not take any action since the District Magistrate who had held the trial had reported that the said sample was not available as it was already destroyed; but in spite of all that, the conviction and sentence have been confirmed by the learned Sessions Judge.
(2.) IN the peculiar circumstances disclosed before me the only course open to me is to set aside the conviction and sentence and acquit the accused. IN the first place, the learned judge is not justified in rejecting the report of the Central Food Laboratory. There is no warrant for thinking that the sample produced by the accused was different from the one that was entrusted to him by the Food INspector. I fail to see for what purpose the Food inspector was cited by the learned judge when the sample in the possession of the accused was produced in court, and his opinion invited as to whether the sample was tampered with. Being an interested witness it was easy for him to say that the cork and the seal appeared to have been tampered with and to crown all, that opinion has been endorsed by the learned judge adding his own impression that the sample appeared to have been tampered with. The most surprising part of the whole matter is that the Central Food Laboratory people did not see any tampering either on the cork or the seal or any where else. According to 'them,'the seals were intact'. How could the two positions be reconciled? The presumption is that they had compared the seal with the specimen seal before the opinion was expressed by them. The learned judge need not have summoned the food INspector for that purpose and invited his opinion in the matter before the sample was sent to the Central Food Laboratory. His opinion could only be the opinion of the party prosecuting and nothing more. The court should have expressed its opinion uninfluenced by that of the food inspector; but instead, the learned judge seems to have moulded his own opinion on the opinion of the Food INspector. If the court thought that the sample was tampered with, it ought not have sent it for analysis. It was perfectly open to the court to refrain from sending it on that ground rather than committing itself to the predicament of inviting a contrary opinion from the director of the central food laboratory. Having forwarded the sample for analysis, it was improper on the part of the court to have rejected the report on the ground that the sample was already tampered with. Even conceding that the sample showed signs of tampering the undeniable fact is there that the accused had from the very beginning been putting forward the request that MO1 the sample before court, might be sent for analysis to the Central Food Laboratory. Even at the time the appeal was first argued before the learned judge, that request was made by him and that is evident from the learned judge's own observation in para 10 of the first judgment which reads: "in fairness to the learned counsel appearing for the appellant, it has to be pointed out that he had stated that MO. 1 may be sent for analysis and that the court need not send the sample given to the accused. " That was not heeded to by the learned judge and the prayer was summarily rejected. Then after the case was received back on remand, a petition was moved on 17-12-66 praying for analysis of MO. 1 sample by the central Food Laboratory. It was to scuttle this request that the District magistrate's report that MO. 1 had already been destroyed was put forward. The district Magistrate had no business to destroy the sample when the matter was pending in revision before this court. From the District Magistrate's statement it is seen that the sample was destroyed on 112 66. The appeal was first disposed of by the sessions judge on 20 166 and against that, Cr. R. P. 41/66 was filed before this court on 27 166 and an order suspending the sentence was issued from this court the same day to the District Magistrate himself. It was after that, that MO. 1 was destroyed by him. I fail to see how this procedure could be justified. Under R. 284 of the Criminal Rules of Practice (T. C. , which is still being followed): "material objects exhibited at the trial of criminal cases should be retained by the court until the court is satisfied that the appeal time has expired and that no appeal has been presented or that any appeal presented has been disposed of. " IN the present case it is common knowledge that from the decision of the Sessions Judge in appeal, a revision lay to this court and a revision was, in fact, filed and an order suspending the sentence had also been issued. It was after that, that M. 0. 1 was destroyed. IN the circumstances it is not open to the District Magistrate to plead over sight or inadvertence. The conduct of the District Magistrate is highly objectionable and the learned sessions judge himself has expressed his disapproval of it. He would observe: "no doubt the learned District Magistrate could have kept the sample till the final disposal of the case. " The revision before this court is a continuation of the proceedings and so long as the revision was pending here, it would be absurd to say that the matter had finally been disposed of. The improper and irresponsible manner in which the material object was disposed of, has brought about an irretrievable situation in the case paving the way for the accused to escape.
Under S. 13 (2) of the Act the accused and the complainant have both been conferred the right to have the part of the sample delivered to the accused-vendor or the part retained by the Food Inspector to be sent through court to the Director of Central Food Laboratory for analysis. Under sub-section (3) of S. 13 the certificate issued by the Director supersedes the report given by the public analyst. The proviso to sub-section (5) of S. 13 lays down that the certificate of the Director of Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. The learned appellate judge, in the above circumstances, was wrong in having rejected the certificate of the Director. In Chintamani v. State (1964 ALL 893) Satish chandra, J. , has observed: "the whole purport of S. 13 is to get the report of the public analyst tested by a superior authority. It, in effect, provides a right of appeal to the accused vendor, as well as to the complainant against the report of the public analyst. To make this right effective S. 11 (1) (c) (iii)directs the retention by the food inspector of this third part of the sample. In this provision of S. 11 it is not anywhere hinted that this third part is to be produced for analysis by the Director, only if the complainant so desires. If the court, acting under S. 13 (2), so requires the third part of the sample has to be produced. " In that case what happened was that the accused made an application to the court stating that his phial of the sample had been lost and that the phial of the sample retained by the complainant, i. e. Nagar Swath adhikari, be called for and sent to the Director, Central Food Laboratory, calcutta for test as provided by S. 13 (2) of the Act. The court accepted the prayer and directed the complainant to produce the phial of the sample. The counsel for the complainant made a statement that the phial of the sample was not traceable and hence it could not be produced in court. The court held, on a careful consideration of the purport and effect of S. 13, that since the applicant has been denied the right to get it tested by the Director, it would not be safe to hold the accused guilty of the offence. The accused was hence given the benefit of doubt and acquitted.
In the present case, as we have already seen, the sample in the custody of the court was not made available for analysis and thereby a most valuable and indefeasible right conferred on the accused by the statute has been taken away. In S. 11 the word used is 'shall', the normal connotation of which is 'must'. The direction given in S. 11 (1) (c) (iii) is in the nature of a command and it is therefore mandatory. S. 11 (1) (c) (iii) reads: "when a Food Inspector takes a sample of food for analysis he shall (iii) retain the third part for production in case any legal proceedings are taken or for analysis by the director of the Central Food laboratory under sub-section (2) of S. 13, as the case may be. " The relevant provisions of S. 11 and 13 require that the third part shall be produced and, on application of the accused, the court shall send it to the Director for analysis. Moreover, where an act affects private rights, the prescribed formalities must be strictly complied with. Even if it be assumed that the duty to produce the third part of the sample retained by the Food Inspector under S. 11 (1) (c) (iii) is discretionary, the direction would in law, be complied with; a duty to exercise it when the occasion arises, namely, when a demand is made for its production. It is a duty which cannot be shirked or shelved or evaded.
(3.) THE conclusion is inescapable that the court by its conduct has destroyed the right vested in the accused and on that ground alone he is entitled to an acquittal.
In the result, the conviction and sentence passed on the accused are set aside and he is acquitted. His bail bonds would stand cancelled. Fine, if realised would be refunded. The revision petition is thus allowed. Allowed.;