LODHA, J. -
(1.) THIS is a revision filed by the accused Maheshwar Prasad, who was convicted by the Sub-divisional Magistrate, Udaipur under sec. 16 (a) of the Prevention of Food Adulteration Act, 1954 and sentenced to two months' rigorous imprisonment and a fine of Rs. 200/- in default of payment of fine further rigorous imprisonment for one month, and whose conviction and sentence were upheld by the Sessions Judge, Udaipur.
(2.) THE prosecution case in brief is that on 29th November, 1961 the accused was bringing five containers containing milk from village Sakroda to Udaipur. He was stopped near the village Debari Gate by the Food Inspector P. W. 3 Dalpat Singh, who suspected the milk to be adulterated and took three samples out of one of the containers in the presence of two motbirs P. W. 1 Lehardas, and P. W. 2 Devilal and mixed formalin with the milk contained in each of the three bottles and thereafter prepared a 'panchnama' marked Ex. P. 1. He sent one of the samples to the public analyst, which was received by the latter on 6-12-1963 and was received back on 20-12-1963 along with the report of the public analyst, which has been placed on the record and marked Ex. P. 3. Since, from the opinion of the public analyst, it was found that the milk was adulterated by reason of there being 13% water in it, the Food Inspector Shri Dalpat Singh filed a complaint in the Court of Sub-divisional Magistrate, Udaipur on 4-3-1964. In support of its case the prosecution examined two motbirs: P. W. 1 Lehardas and P. W. 2 Devilal and the Food Inspector P. W. 3 Dalpat Singh himself came in evidence. THE accused denied having committed the offence and examined himself in his evidence besides D. W. 2 Bhanwar Singh.
The learned trial court, as stated above, found, the accused guilty and sentenced him. Since the accused was unsuccessful in appeal he has filed this revision before this Court.
Mr. Singhvi, learned counsel for the petitioner has argued a number of points to show that the conviction is unsustainable. I have heard the learned counsel at some length to satisfy myself as to the correctness, legality and propriety of the finding recorded by the courts below against the accused. It it regrettable that some very important questions argued before me, it so appears, were not taken up before the lower courts. However I have felt persuaded to go through the whole record and find that some of the points argued by Mr. Singhvi are not without force.
In the first instance the learned counsel for the petitioner has invited my attention to Rule 18 of the Prevention of Food Adulteration Rules, which provides that a copy of the memorandum and a specimen impression of the seal used to seal the packets shall be sent to the public analyst separately by registered post or delivered to him or to any person authorised by him. There is nothing on the record to show that the Food Inspector had sent a specimen impression of the seal used to seal the packet to the public analyst so that the latter may be able to compare the seal on the bottle with the specimen seal to avoid any tampering with the sealed bottles. Thus it is clear that a very salutary provision provided under Rule 18 is not proved to have been observed in this case.
Another point which has been argued by the learned counsel for the petitioner is that the sample was taken on 29-11-1963, and it was received by the public analyst on 6-12-1963, who sent it back to the Food Inspector on 20-12-1963. The complaint was, however, filed after more than three months on 4-3-1964 and there is no explanation as to why the complaint was filed so late when the sample had been received as early as on 20-12-1963. In this connection it may be relevant to refer to certain observations of their Lordships of the Supreme Court in Municipal Corporation of Delhi vs. Ghisaram (1) relied on by the learned counsel. Their Lordships have observed. "in the present case the sample was taken on the 20th September, 1961, ordinarily, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. It, however, appears that delay took place even in obtaining the report of the Public Analyst, because the Public Analyst actually analysed the sample on 3rd October, 1961. It may be presumed that some delay in his sending his report to the prosecution is bound to occur. Such delay could always be envisaged by the prosecution, and consequently the elementary precaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector. If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January, 1962. The report of the Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable the respondent to exercise his right under sec. 18 (2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962 and no explanation is forthcoming why the complaint in court was filed about seven months after the report of the Public Analyst had been issued by him. "
In the present case the complaint has been filed within four months and a preservative had also been added to the sample. The Supreme Court case therefore is not on all fours with the present case, even though in the present case also some delay has occurred in filing the complaint for which no explanation has been given. It was the duty of the prosecution to have explained this delay. There is, however, another difficulty for the prosecution and it is this that no evidence whatsoever has been led to prove that the requisite quantity of formalin was added to the sample. The Food Inspector has not said a word in his statement as to how much formalin was added nor it is mentioned in the report by the public analyst that at the time of examination the milk was in good analysable condition. It is no doubt true that in the 'panchnarna' Ex. P. 1, it has been mentioned that 16 drops of formalin were mixed with the sample but that by itself is no evidence unless there is a statement on oath that the requisite quantity of preservative was in fact added to the sample of milk which was sent to the public analyst. Simply mentioning it in the 'panchnama' Ex. P. 1 is in my opinion not sufficient.
Another substansial flaw in the prosecution is that two motbirs P. W. 1 Lehardas and P. W. 2 Devilal were examined by the prosecution and unfortunately for the prosecution P. W. Lehardas turned hostile and stated that he did not know as to from whom the sample of milk was taken. He goes on to state that he even did not know whether the sample of milk was taken from the containers lying in the jeep. He further states that even the 'panchnama' Ex. P. 1 was not prepared in his presence nor it was read over to him. It is surprising that in face of this statement the prosecution did not care to get this witness declared hostile and to seek permission for cross-examination. Another motbir P. W. 2 Devilal is also, in my opinion, no better than the first one. He states that he reached the spot when Ex. P. 1 had already been prepared and he too does not state that the sample of milk was taken from the containers lying in the jeep. In this connection it may be pertinent to refer to sec. 10 (7) of the Prevention of Food Adulteration Act, 1954 (as it was on the relevant date) which says that where the Food Inspector takes any action under the various provisions of this section he shall call not less than two persons to be present at the time when such action is taken and take his or their signatures. In this state of affairs it is difficult to conclude that the samples were taken in the presence of two motbirs and that the provisions of sec. 10 (7) of the Food Adulteration Act were complied with and that the phials were sealed as required by Rules 16 and 18 of the Prevention of Food Adulteration Rules, 1955.
These are not the only flaws in the prosecution case. Further, it appears, that no evidence has been led by the prosecution to show that the samples and the seal which had been used for sealing the sample had remained in the possession of the Food Inspector in safe custody right from the time the samples were sealed upto the time they were actually sent to the public analyst. As already stated above, the samples were taken on 29-11-1963 and one of the bottles was received by the Public Analyst on 6-12-1963. In this connection I may refer to the observations made in a Bench decision of this Court- Ratanlal vs. The State (2) in which it was observed: "that it is necessary for the officer recovering the articles that he should immediately take steps to seal them, and evidence may be led by the prosecution that from the time the articles came in the possession of the Police upto the time they reached the Chemical Examiner, the seals put on such articles remained intact. " It has been laid down time and again by our Court and even by the Supreme Court in Ukha Kolhe vs. The State of Maharashtra (3) that it is incumbent on the prosecution to prove that the seals put on the samples remained intact till the samples reached the hand of the chemical examiner. In that case Dr. Rote collected on 3-4-1961 in a phial the blood of the accused to be examined by the chemical examiner under the instructions from Dr. Kulkarni, and put his seal on the phial. He delivered the phial to the Sub-Inspector of Police on 13-4-1961, who in turn sent the same to the Chemical Examiner on 18-4-1961. No evidence was however led by the prosecution to prove that the seal of Dr. Rote was intact and the precautions were taken to ensure against the tampering with the contents of the phial when it was in the civil hospital and later on in the custody of the police between 13-4-61 to 18-4-61. The report of the Chemical Examiner in that case did mention that a sealed phial was received by him from the Police Officer but he did not mention that the seal was one which was put by Dr. Rote. In this context their Lordships of the Supreme Court were pleased to observe as follows: "evidence regarding the dealing with the phial since it was sealed and it was submitted for examination of the Chemical Examiner may appear to be formal, but it has still to be led in a criminal case to discharge the burden which lay upon the prosecution. "
As already observed, I have carefully looked into the statement of the Food Inspector P. W. 3 Dalpat Singh and I must say that the evidence in this respect is conspicuous by its absence.
Mr. Sihghvi has also argued that the milk which the accused was carrying was not for sale, and that it was not at all sold to the Food Inspector. The Food-Inspector Shri Dalpat Singh in his statement has deposed that he came to know from the accused himself that he had a license for selling the milk from the Municipality, Udaipur. However the accused in his statement denied that he was a licensed vendor. It is unfortunate that no effort was made by the prosecution to produce the record of the Municipality or a certified copy of the license to show that the accused held a license for vending milk. Moreover, it transpires from the statement of the Food Inspector himself that he did not pay nor promised to pay the price of the milk to the accused which he had taken as sample. In these circumstances it is difficult to hold that the milk which the accused was carrying in the jeep was for sale.
Learned Deputy Government Advocate, Dr. Tiwari has not been able to controvert the above mentioned contentions of the learned counsel for the petitioner.
In the result, I allow this revision, set aside the conviction and sentence passed against the accused petitioner and acquit him of the offence under sec. 16 (a) of the Prevention of Food Adulteration Act. He is on bail and need not surrender. The amount of fine, if paid, shall be refunded. .