C.V. Rane, J. - (1.) Appellant No. 1 Atmaram Parshottam is dealing in milk' He has his shop on Gita Mandir Road, Ahmedabad. Accused No. 2 does the work of selling milk in the above shop. The Food Inspector Gunvantrai purchased 700 m.ls. of milk from accused No. 2 on 17-4-1973 in the presence of the panchas. The milk was divided into three equal parts each of which was put in a separate bottle which was duly sealed in the presence of the panchas. One of the bottles was sent to the Public Analyst and one bottle was given to the accused. The third bottle was sent to the Court of the learned Magistrate. The Food Inspector filed a complaint against both the appellants. The sample bottle that was sent to the Court was subsequently forwarded to the Director, Central Food Laboratory, Calcutta. According to the complaint, what was purchased from the accused was 'separated milk'. According to the report of the Director of the Central Food Laboratory, the sample was 'adulterated skimmed milk'. Both the accused pleaded not guilty to the charge. The learned Magistrate has convicted each of the accused of the offence punishable under section 7 read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act, and sentenced each of them to suffer S.I. for six months and to pay a fine of Rs. 1,000/- and, in default of payment of fine, to suffer S.I. for a further period of six months. Being aggrieved by the order of conviction and sentence passed by the learned City Magistrate, the accused have come in appeal to this Court.
(2.) It is argued by the learned Advocate for the appellants that neither the report of the Public Analyst nor that of the Director of the Central Food Laboratory is admissible in evidence. He has pointed out that the Public Analyst has submitted his report in a form which is no longer in force. Form No. III in which the Public Analyst has to make his report was amended in the year 1968 and the following words were added in the old form:- "The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the food inspector, and the sample was in a condition fit for analysis". The above words were added after the words "and that found the seal intact and unbroken". The Division Bench of this Court has in its decision in the case of Mangilal Chimnaji v. State of Gujarat and another, 1975 (1) FAC 92, to which was a party, has taken the view that the report of a Public Analyst which is not in the prescribed form, as required by law, is not admissible as evidence of facts stated therein, without examining the Public Analyst. It was open to the prosecution to examine the Public Analyst in order to show that he had satisfied himself that the seal fixed on the container of the sample tallied with the specimen impression of the seal. But the prosecution has failed to do so. Under these circumstances, the question of considering the report of the Public Analyst does not arise in this case. In connection with the report of the Director, Central Food Laboratory, the learned Advocate for the appellants has pointed that the learned Magistrate has forwarded the sample containing the milk to the Director, Central Food Laboratory, along with the old form of the memorandum According to rule 4(1) of the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as the Rules- "(1) Samples of food for analysis whether under sub-section [2] of section 13 of the Act or under clause [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 in an outer cover addressed to the Director." The form referred to in rule 4[1] has been amended in the years 1956 and 1961. The learned Magistrate ha-1, however, forwarded the sample with the memorandum dated 22-5-1973 in the old form, which amongst other things, does not contain the" following particulars:- "A copy of the memorandum and the specimen impression of the seal used to seal the container and the cover are sent separately by registered post". Now, according to section 13[2] of the Act, the court has to forward the sample to the Director of Central Food Laboratory under its own seal. Rule 4[3] of the Rules provides- "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". In the present case, on the basis of the memorandum, dated 22-5-1973 of the learned City Magistrate, it cannot be said that he had complied with the provisions of rule 4[3] of the Rules.
(3.) The learned Assistant Government Pleader is not able to show that, the copy of the memorandum and the specimen impression' of the seal used to seal the container and the cover were separately sent by registered post to the Director, in the present cases. According to the decision of the Division Bench of this Court in Miscellaneous Criminal Application No. 95 of 1974 in Criminal Appeal No. 108 of 1974, decided on 19/20-4-1974, the provisions of the aforesaid section and rule are mandatory. It is easy to understand that, unless the above mandatory provisions of the Act and Rules are complied with, the report of the Director of the Central Food Laboratory cannot be treated as evidence and much less as final and conclusive evidence of the facts stated therein, as contemplated by sub-section [5] of section 13 of the Act. The learned Assistant Government Pleader is unable to controvert the above position. Once, the certificate of the Director of the Central Food Laboratory and the report of the Public Analyst are discarded, there is no evidence on record to show that the skimmed milk alleged to have been sold by the accused was adulterated. Under these circumstances, the conviction of the accused for the offence under section 16[1][a][i] read with section 7 of the Act cannot be sustained.;