CHHANGANI, J. -
(1.)THIS is a revision by the accused Asuram against the appellate order of the Sessions Judge, Balotra dated 28. 7. 1959 maintaining his conviction under sec. 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as an Act) and sentence of three months' rigorous imprisonment and a fine of Rs. 200/- and in default a further simple imprisonment for one month.
(2.)THE facts giving rise to the revision may be briefly stated as follows: - On 22. 7. 1959 S. S. Rathore, Food Inspector, Balotra purchased a sample of til-oil from the accused. THE til-oil thus purchased was filled in three bottles each of which was properly sealed and labelled. Out of the three bottles, one was sent by the Food Inspector to the Public Analyst for examination; the other was given out to the accused and the third was kept for being produced in Court and was ultimately so produced. On an examination by the Public Analyst the til-oil was found to be not of the prescribed standard of purity. THE Food Inspector thereupon after obtaining the consent of the Assistant Director of Health Services, Jodhpur Division Jodhpur filed a complaint under sec. 16 of the Act and produced along with the complaint memorandum dated 31. 10. 1958 purporting to have been issued by the Assistant Director of Health Services consenting to the prosecution of the accused Asuram. Particulars of the offence were explained to the accused on his appearance in Court and his plea was recorded. He admitted that he was selling til-oil and that the Inspector purchased some til-oil as sample from him. He, however, alleged that he did not know that the til-oil was not of a standard purity and that it was adulterated. He further alleged that he had purchased that oil from Jodhpur Krishna Flour and Oil Mill in sealed tins and was selling in the condition in which he had purchased. It appears that he did not join any controversy over the question whether the sample which was sent for examination by the Public Analyst was not the one which was purchased from him and did not allege or suggest any tampering with the sample of til-oil purchased from him.
The prosecution examined two witnesses while three witnesses were produced in defence. The trial Magistrate, after the trial, found the accused guilty and recorded a conviction under sec. 16 of the Act. In an appeal by the accused a number of grounds were taken but the only point pressed before the appellate Judge was that the accused had not adulterated the til-oil at the shop and that he was selling the same in retail in the same condition in which he had purchased from his supplier. The appellate Court did not accept the contention of the accused and dismissed his appeal. The accused has filed the present revision.
Mr. Chand Mal has argued this revision at a great length. He has not only repeated the grounds taken before the appellate Court but has argued some additional grounds for setting aside conviction of the accused.
The one important ground which according to him goes to the root of the whole matter is that there was no proper prosecution of the accused inasmuch as there was no valid complaint for his prosecution. He submitted that sec. 20 of the Act requires that the complaint should be either by the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority or by some person with the written consent of the State Government or local authority, or a person authorised in this behalf by the State Government or a local authority. In the present case, he pointed out that assuming: that the Assistant Director of Health Services is a person authorised to file a complaint there is no proper written consent on his behalf authorising the Food Inspector Mr. Rathore to file the complaint. He invited my attention in the letter or memorandum dated 31. 10. 1958 purporting to have been issued by the Assistant Director of Health Services consenting to the prosecution of the accused. The letter does not bear the signatures of the Assistant Director of Health Services. An unsigned letter of this type, he added, cannot amount to a consent in writing for the prosecution of the accused. Mr. Zabbar Raj appearing for the State submitted in answer that the accused did not raise any objection to the validity of the prosecution on the ground of the absence of consent either during the course of trial or in appeal. The point was not taken even in the grounds of revision and it Was only during the course of arguments that this point has been made out. He contended that a letter or memorandum purporting to be a consent in writing being on the record and the accused having raised no objection it is a case of a mere irregularity curable under sec. 537 Cr. P. C. and cannot be allowed to vitiate the trial. Further after taking some time he produced an affidavit of Dr. D. G. Ojha, Principal Medical & Health Officer along with two letters - one dated 30th Oct. , 1958 addressed by the Food Inspector to the Assistant Director of Health Services requesting for consent in connection with the prosecution of various defaulters including Asuram, the accused, and the letter dated 3. 11. 1958 addressed by the Assistant Director of Health Services to the Health Inspector, Balotra forwarding a few complaints for necessary action. An application was also filed under the signatures of Shri Kan Singh, Government Advocate in which the following points were taken: - (1) That no objection in connection with the validity of the consent was raised on behalf of the accused before the trial Court. The Food Inspector was not even cross examined on this point. This objection was not even raised before the trial Court nor was it taken before the appellate Court. This technical plea has been raised during the course of arguments. (2) That this is only an error and omission due to irregularity curable under S. 537 Cr. P. C. The Government Advocate further prayed that this formal defect should be allowed to be removed by taking on record the affidavit of Dr. D. G. Ojha, Principal Medical & Health Officer, Jodhpur along with the copies of the two letters. The learned counsel for the applicant was also given an opportunity to file, if he so desired, a written reply and a counter affidavit but he did not choose to file any counter-affidavit.
After giving my careful consideration to the respective contentions of the learned advocates for the parties, I am inclined to take the view that the prosecution having produced along with the complaint a memorandum issued from the office of a competent authority giving consent to the prosecution and the accused having raised no objection as to the validity of the prosecution on account of absence of consent, the absence of signatures of the competent authority on the memorandum, obviously the result of a mere inadvertence, cannot be fatal to the prosecution. A memorandum in writing consenting to the prosecution is on the record and had the accused raised any objection the prosecution would have easily removed the formal defect, namely, the absence of signatures of the competent authority or would have otherwise rectified the mistake. In my opinion, the omission of signatures in the memorandum is a mere irregularity which does not vitiate the trial specially when the formal defects stand now removed by an affidavit of Dr. D. G. Ojha, Assistant Director of Health Services.
Mr. Chand Mal, however, urged in this connection that in the letter or memorandum of cement dated 31st October, 1958 the name of the Food Inspector Mr. S. S. Rathore has not been specified as the person to whom the consent was given for prosecuting the accused and, therefore, the Food Inspector Mr. S. S. Rathore was not competent to file the complaint. In support of this, he relied upon State Vs. Purshottam Kanhaiyalal (1 ). In this case a Division Bench of the Bombay High Court has taken the view that a valid written consent under sec. 20 of the Act would be a written consent which names a particular person as a person to institute the prosecution. In arriving at this conclusion, the learned Judges made the following observations: - "it is not difficult to conceive of the complications that might arise, if the written consent were not to specify and name the person as the prosecutor duly authorised to institute the prosecution under sec 20. . . . . . . . . If the consent were not to name the person who is to be the prosecutor, and if the prosecution were under - taken, or instituted by any other person who is not named in that consent, then, it may well be that the local authority, or the person who has accorded such consent under the provision of sec. 20 may not thereafter retain any control over such prosecution. " With great respect, I feel unable to agree with the view taken in this case. It is difficult to see how a consideration of a retention of control by the authority consenting to the prosecution should be relevant factor in determining the validity of the prosecution. "whether or not, the authority consenting should retain control and what should be the mode of retaining control are matters with which the Courts are not properly concerned with. There are matters relating to the administration and it will be hardly fair for Courts to determine the validity of prosecution with reference to such matters. The object of the Act, in my opinion is merely to see that the prosecutions are launched after the matter is brought to the notice of certain specified authorises and that object is fully achieved when it is established on record that a competent authority has actually consented to the prosecution of the accused. The contention of Mr. Chandmal, therefore, relating to the validity of the prosecution is without force and is rejected.
The next contention urged by Mr. Chandmal is that it has not been proved that the sample sent for chemical analysis was the same which was taken from the accused and that the Inspector did not observe all the necessary formalities regarding sealing and labelling of the sample. He pointed out that the sample was purchased on 22. 7. 1958. The report of the Public Analyst is dated 9. 9. 1958. There was sufficient interval between the purchase of the sample and the examination of the sample by the Public Analyst. The prosecution, he pointed out, ought to have led evidence to show that during all this interval the sample remained properly sealed and uninterfered with. There should have been evidence on record to show that it remained scaled and uninterfered with till it reached the Public Analyst's Office. Reliance has been placed in this connection upon The State Vs. Motia (2) and another case Mst. Javitri Devi alias Shanti Vs. The State (3 ). The latter case merely followed the Motia's case (1 ). I had an occasion to explain the implications of Motia's case (1) in S. B. Cr. Appeal No. 54 of 1960 decided oft 6. 10. 1960. It will be proper to reproduce some of the observations from that judgment: - "i also feel very strongly inclined to observe that Motia's case merely lays down a rule of prudence for the appreciation of evidence and not a rigid and inflexible legal principle and its applicability should not be considered irrespective of the facts and circumstances of individual cases. In a given case if on account of the admissions of the defence or its omission to raise a contest and join controversy and otherwise, the possibility of tempering with articles, the subject matter of the reports of the Chemical Analyser can be reasonably eliminated, I cannot see why the absence of mere formal evidence should be allowed to be overemphasised and availed for the acquittal of the accused. " I further venture to observe that the applicability of the above rule of prudence in connection with the cases under? this Act must be considered in the light of the following facts -
The Act and the Rules provide for an elaborate procedure for the taking, sealing and the despatch of the samples by the Food Inspectors. When a Food Inspector takes sample of food under Sec. 10 of the Act he must adopt the procedure prescribed by sec. 11 and must - (1) give notice in writing in the prescribed form to person from whom he has taken the sample of his intention to have it analysed; (2) separate the sample then and there into three parts unless rules in a special case provide otherwise and mark land seal and fasten each part in such manner as its nature permits; (3) deliver one part to the person from whom the sample is taken, send the other part to the public analyst and retain the third part for production in Court in case any legal proceedings are taken. Rules 14 to 22 contain specific directions as to the manner of sealing, fastening and despatch of sample. The elaborate procedure and precautions are clearly intended to secure absolute fair play and eliminate improper and unhealthy practices. The accused has ample means and opportunities of checking up and contradicting the result of the analysis relied upon by the prosecution. He may produce in Court the sample of the food kept with him and request for its analysis by the Public Analyst. He may similarly request the Court to get the sample produced in Court analysed. In this manner he can check and if necessary contradict the result of analysis relied upon by the prosecution. From this position, the following inferences may safely be drawn: - (1) In view of the availability of the checks to the accused and the Court, the Food Inspectors are not very likely to resort to improper and unhealthy practices and tamper with the samples, (2) The accused also has an undoubted opportunities of leading evidence in rebuttal. In these circumstances, it will be hardly fair to discredit the report of the Public Analyst on a mere suggestion of the accused of mere theoretical possibility of tampering with the sample taken from him and the absence of an elaborate formal evidence. Any such suggestion of the accused should be considered in the light of nature of contest raised by him and after giving due weight to the fact that the accused has all means and opportunities of producing his sample or of utilising the sample with the Court for a second analysis and of thus bringing on record a fresh result in variance with the result relied upon by the p:osecu ion. Examining the present case in the light of the above principles, I must observe that the accused did not raise any ground in his plea under sec. 242 Cr. P. C. about the tampering with the sample nor did he take any' steps to require the Court either to get the sample produced in Court examined by the Public Analyst nor he produced his own sample for a similar purpose. It will be hardly fair to allow the accused to emphasise this technical and formal ground that the prosecution must lead all formal evidence to prove that the sample remained uninterfered with. The Food Inspector has made a general statement which prima facie eliminates the possibility of tampering with the sample. I am not inclined to accept this contention on behalf of the defence;.
(3.)THE third contention urged by Mr. Chandmal is that there is no satisfactory proof that the til-oil was adulterated and was not of the standard purity. He contended that the report of the Public Analyst only says that it does not contain the prescribed standards of purity and does not indicate the premises for the conclusion. THE report of the Public Analyst, it was added, is very vague and cannot be considered a satisfactory proof of the fact that the til-oil was not of a standard purity. My attention was also invited to the statement of the Food Inspector who deposed that he did not know what was the standard of the purity of the til-oil. It is regrettable that the Food Inspector should have displayed such ignorance of the elementary matters. It would have also been desirable had the Public Analyst also indicated why he considered the sample by referring to the standards of purity required and pointing out how the sample was found deficient as lacking in standard purity. However, on a reference to the rules and the Appendix I find that the defect in the reports of the Public Analyst is merely of a formal kind. Rule 5 of the Rules framed under the Act states that standards of quality of the various articles of food specified in Appendix (b) to the Rules are as defined in that appendix. In the Appendix the standard of the purity of the til-oil has been described. THE Butyro-refractometer value of the tiloil as given in the Appendix is 58-0 to 61-0 and the Iodine value is 105 to 115. A reference to the Public Analyst's report will show that the Butyro value and the Iodine value of the sample examined by the Public Analyst are different from those required for a standard tiloil. Clearly, therefore, the sample cannot be considered as that of a pure tiloil and shall be treated as adulterated under sec. 2 of the Act. Mr. Chandmal contended that the differences in the value of the sample and of the standard tiloil are so minor and insignificant that they should be ignored and the sample should not be treated as an adulterated til-oil. I find it difficult to accept this contention. Sec. 2 of the Act does not permit this course to be adopted. I am satisfied that the sample of til-oil sold by the accused was adulterated and that he cannot avoid his responsibility for the guilt on this ground.
All the contentions of Mr. Chand Mal challenging the petitioner's conviction are without force. The conviction is quite correct and needs no interference.
Coming to the sentence, the question was argued at some great length and I must confess that I had also to give an anxious consideration to the matter. Mr. Chand Mal's submission is that the accused is a first offender and the Public Analyst's report indicates that it was positive til-oil and there were only certain minor differences in the food value of the sample and the values of the standard tiloil. The accused had already remained in jail for about seven days and that it will be hardly proper to send him to jail again and that he should be let off with a sentence of fine. On the other hand, Mr. Zabbar Raj appearing for the State has very strongly opposed the request for the reduction of the sentence. He points out that the evil of adulteration is very rampant in this country and that any leniency in the matter of sentence is absolutely uncalled for. Indisputably the main purposes of punishment are the protection of the society and the prevention of the offences and the extent of punishment should be determined keeping in view the prevalence of a particular kind of crime. It cannot be denied that the adulteration of foods as also adulteration of drugs has become extremely excessive in this country that there is a real danger to the health and the safety of the people. I, therefore, agree with the contention of Mr. Zabbar Raj that the leniency in the matter of sentences is not justified in such cases. For such offences at any rate punishment should be such that it should induce a realisation in the accused that a career in criminal activities will not pay. Further it should be a warning to others intending to resort to such careers. In the light of these observations, the sentence of three months' simple imprisonment errs on the side of leniency and there is no further scope for the exercise of any leniency. In these circumstances, I have go alternative but to reject the revision application. The accused is present. He shall be taken into custody and sent to jail for undergoing the unexpired term of the sentence.
Mr. Chand Mal prays that the case should be certified to be a fit one for appeal to the Supreme Court. I do not consider, in the circumstances of this case, to certifying the fitness of the case. The application is consequently rejected. .