A.S.QURESHI - (1.)This is the appeal filed by the original complainant who was at the material time the Food Inspector of the Baroda Municipal Corporation The accused were charged for an offence punishable under sec. 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The learned Judicial Magistrate First Class Baroda by his judgment and order dated 29/09/1978 acquitted the accused. Aggrieved by the order of the Learned Magistrate the original complainant has come in appeal before this Court.
(2.)The prosecution had alleged that the accused who carried on the business of selling edible ground-nut oil had adulterated the oil and thus committed an offence punishable under the Act. According to the prosecution Chintamani P.W. 1 (Exh.2) who was the Food Inspector employed by the Municipal Corporation of Baroda who is the complainant in this case went to the shop of the accused on 7th February 197 in the morning accompanied by a clerk one Mr. Patel and a Sepoy named Adulkadar Sheikh. According to the complainant he took the samples from the oil tin by taking out the oil with a Palia (measure into a clean utensil which he had carried with him. The samples according to him were sealed by the Sepoy. The slip duly signed by the local health authority was pasted on the sample bottles before they were despatched. The Public Analyst had examined the samples and found that the oil was adulterated In this case the prosecution had examined the Public Analyst Sureshchandra S. Bhatt P. W. 2 (Exh. 29) who has been cross examined at considerable length but nothing material has come out of his cross examination which could help the accused. Therefore it is proved that the oil contained in the sample bottles was adulterated
(3.)As regards the compliance of the requirements of Rule 16(c) of the Prevention of Food Adulteration Rules 1955 it is urged on behalf of the respondents that those requirements are not fully complied with in view of the evidence of the complainant. It is urged that the complainant has admitted in his cross examination that the serial No. 192 written on the slips was the number given by the complainant according to has own serial number in the ascending order. The complainant has in his examination-in-chief categorically stated that he was given the Code Number by the Health Authority and that the slips were duly signed by the authority. As regards the serial number the complainant says that it was given to him by the Health authority orally and explains in his cross examination that the authority had asked him to write down his serial numbers in the ascending order. Miss K. N. Valikarimwala. the learned Counsel appearing for Mr. N. R. Oza has argued on behalf of the Municipal Corporation of Baroda that this apparent contradiction is in reality no contradiction. In fact it is an explanation or elaboration of what the complainant has said in his examination-in- chief. Miss Valikarimwala has submitted that the local health authority had given the Serial No. 192 orally to the complainant and asked him to put that number on the slip and thereafter go on giving serial numbers in the ascending order in the case of subsequent samples which may be taken from different shops. According to her once the local authority gives a serial number even orally the requirement of clause (c) of Rule 16 is complied with. According to her it is not necessary for the local authority to write down the serial number on the slips there and then in his own hand-writing. The authority has simply to give the serial number and thereafter that serial number can be inscribed on the slip by any authorised person. In this case the complainant is the authorised person. For this proposition Miss Valikarimwala has relied on the Division Bench decision of this High Court in the case of KAMLESHKUMAR BABULAL PATEL V. STATE OF GUJARAT & ANR. 22 G.L.R. 404 wherein it is held that the serial number and code number must be given by the local health authority but may he written down by any other person. This proposition is quite self evident on a mere reading of clause (c) of Rule 16 of the said Rules. The said clause (c) has been added by the amendment of 1977 with a view to ensure that the sample bottles are not tampered with in the course of transmission from the Food Inspector to the Public Analyst. It simply requires that the paper slip to be pasted on the wrapper to the container should bear the code serial number and the signature of the local health authority. It does not require the code or serial number to be in the hand-writing of the authority himself. Therefore the objection raised in this matter that the serial number was written in the hand-writing of the complainant would not survive. However the question whether the Serial No. 192 was given by the local authority orally or otherwise is not fully proved. No doubt the complainant does state in his examination-in-chief that the said serial number was orally given by the authority. There is a shadow of doubt in this view of the fact that he has given a contrary reply in his cross examination where he says that the Serial No. 192 was my number. It is not very clear what the complainant meant by saying my Serial Number. Does it mean that the serial number which was given to him was given by the authority or does it mean that the serial number given by him was under the instructions of the authority? This doubt could have been very easily resolved if the prosecution had taken care to examine the local authority himself. In the absence of the local authority not having been examined on this point the doubt would remain unresolved. Miss Valikarimwala has urged that this is a minor omission on the part of the prosecution and an opportunity may be granted by remanding the matter back to the trial court for recording the evidence of the local health authority. According to her this is a technical defect and the accused who are charged with a serious offence of playing with the health of the people should not be allowed to get away scot-free because of the technicality. She has strongly urged that interest of justice would demand that the matter should be remanded back to the trial court for recording evidence of the local authority.