- (1.) M. P. Saxena, J. Bhagwat has filed this revision application against the judgment and order dated 3-10-1980 passed by the VIIth Additional Sessions Judge, Meerut dismissing his appeal and confirming his conviction under Section 7/16 of the Prevention of Food Adulteration Act and six months' R. I. and a fine of Rs. 1000/ -. In default of payment of fine three months' further R. I. was awarded. Briefly stated the facts are that on 5-11-1977 at about 12 O'clock in the noon Mahesh Chandra Garg, Chief Food Inspector, Meerut, visited the shop of the revisionist in village Shahjahapur, P. S. Kithora, district Meerut. He found him selling spices and other goods. Sri Garg suspected that Zira which the revisionist was selling or exposing for sale was adulterated. Therefore, he purchased 600 grams of Zira and paid Rs. 10. 80 informing the revisionist that he was taking it for analysis by the Public Analyst. The Zira was kept in three bottles which were properly sealed and necessary documents were prepared. One of those bottles was sent to the Public Analyst, U. P. Government, who reported as follows: " 1. Inorganic extraneous matter. . . 0. 1%
(2.) ORGANIC extraneous matter. . . 14. 51% Zira. 85. 39' The orgainc extraneous matter exceeds the maximum" permissible limit of. . . 5%. " Hence the sample was held to be adulterated. After obtaining the requisite sanction of the Chief Medical Officer of Helth a complaint was filed against the revisionist. The revisionist denied the said charge and gave out that Zira was not ready for sale. It was being cleaned and thereafter it would have been sold to the public. According to him, this fact was brought to the notice of the Food Inspector but he paid no heed. On 11-5-1978 the revisionist moved an application that another sample of the Zira lying in the custody of the health authorities at Meerut be sent to the Director, Central Food Laboratory, for examination. Accordingly, the second bottle of sample of Zira was sent to the Central Food Laboratory and the Director sent a report on 24-6-1978 to the following effect; " 1. The sample shows presence of live infestation. 2. Extraneous matter 20% by weight. 3. Insect damaged grains 6. 2% by weight. Edible seeds other than cumin seeds-Nil. " In his opinion the sample was adulterated. Ha also appended a note that specimen impression of seal was not given on the memorandum. After going through the material on the record the learned trial Court held that the Zira was really meant for sale and was adulterated. The revisionist was convicted and sentenced as aforesaid and the appeal filed by him was dismissed. Several points have been urged before me by the learned counsel for the revisionist but one of them is quite weighty on the basis of which the revision is bound to succeed. It is argued that the sample seal was not sent to the Director of Central Food Laboratory along with the sample phial with the result that he had no occasion to check the genuineness of the seals and the salutary rule 4 (3) of the Prevention of Food Adulteration Rules was contravened and no reliance can be placed on the report of the Director. The relevant portion of Section 13 of the Prevention of Food Adulteration Act reads as follows: " (1) " (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health; Authority shall, after the institution of prosecution against the person from whom the sample of article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of analysis to such person or persons, that if it is so desired, either or both of them make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. (2-A) When an application is made to the Court under subsection (2), the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition. (2-B) On receipt of the part or parts of sample from the Local (Health) Authority under subsection (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of subjection (1) of Section 11 are intact and the signature or thumb impression, as the case may be, is not tampered withand despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. (2-C ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2-D ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2-E ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In the instant case when copy of the Public Analyst's report was furnished to the revisionist he immediately applied for obtaining second bottle of the sample and send it to the Central Food Laboratory for analysis. The same was obtained by the Magistrate There is nothing on the record to warrant that Rule (2-B) was complied with, There is nothing to show that the Court had ascertained that the mark and seal or fastening were intact and the signature or thumb mark were not tampered with. The Food Inspector who appeared in the witness box frankly admitted that he was not present when the bottle was produced before the Court and was sent to the Central Food Laboratory. There is no note of the Court anywhere to the effect that he had satisfied himself that the seals were intact and the signature or thumb mark were not tampered with. Rule 4 (3) of the Prevention of Food Adulteration Rules 1955 lays down; " 4 (1) Samples of food for analysis whether under subsection (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 I in an outer cover addressed to the Director. (2) (3) 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. " There is not an iota of evidence on the record to show that the requirements of the aforesaid rule were complied with. After a resume of several cases the Gujarat High Court held in the case of Harchand Gajpal v. State (1976p, F. A. C. 15) that the rule 4 (3) is mandatory. In Tezpur Municipal Board v, Mohanlal Tibriwal and another (1977 (II) P. F. A. C. 167) the Gauhati High Court held that where there is no material on the record of any kind whatsoever to show that a copy of the memorandum and a specimen impression of seal used to seal the container and the cover were sent separately as required by rule 4 (3) it cannot be presumed that the rules were followed. In such a case the accused was deprived of a valuable right conferred by Section 13 (2) of the Prevention of Food Adulteration Act and his conviction cannot be sustained. In Gopinath Bahu Marie v. State of Maharashtra and another (1980 (1) P. F. A. C. 112) also it was held that sub-rules 3 and 4 of Rule 4 are mandatory and if they are not complied with the prosecution must fail. This question came up for consideration before a learned Single Judge of this Court also in Hirdaya Narain v. State (1980 (1) P. F. A. C. 436 at p. 439.) it was observed: " In Rule 4 of the P. F. A. Rules, a similar procedure has been provided when the sample of food is sent for analysis to the Director, Central Food Laboratory. Under that rule also a sample is sent either through a messenger or by registered post in a sealed packet with an enclosed memorandum addressed to the Director. Rule 4 sub-clause (3) who requires that a copy of the memorandum and specimen impression of the seal used to seal the container shall be sent separately by registered post to the Director. " It is thus clear that a double check has been placed by the legislature on the despatch of the containers of the samples. A corresponding duty has been placed upon the Public Analyst as well as the Director, Central Food Laboratory to check up the seals of the sample bottles along with the specimen impression of the seal despatched separately to him. This safeguard has been provided with the object of eliminating the chances of tampering of the sample during the course of transit. Such a course appears to be extremely necessary because the report of the Public Analyst and/or of the Director, Central Food Laboratory, can be used in evidence of the facts stated therein in any proceedings taken against the accused under the Act and he can be convicted thereon. If rule 18 of the P. F. Rules is not strictly complied with, there could be no safeguard provided to the accused against tampering of the sample taken from him during the course of its transmission to the Public Analyst or the Director, Central Food Laboratory. The comparison contemplated by rule 7 and by rule 4 of the Prevention of Food Adulteration Rules becomes meaningful only when a copy of the memorandum and the specimen signature of the seal used for sealing the packet is separately despatched to the analysing authority. In the instant case the report of the Director makes it clear that no sample seal was sent to him and he had no occasion to compare the seals on the container. In this manner the mandatory provision of rule 4 (3) of the Rules was not complied with. It prejudiced the revisionist in as much as he could not get the benefit of Section 13 of the Prevention of Food Adulteration Act in the manner prescribed. In his statement the Food Inspector gave out that he was not even present at the time the sample was bent to the Director, Central Food Laboratory and he could not say whether the Court itself had done the comparison or not. In such a case where the accused had been denied the benefit contemplated by Section 13 of the Act his conviction cannot be sustained. The revision application is allowed and the revisionist's conviction under Section 7/16 of the Prevention of Food Adulteration Act and the sentence awarded thereunder are set aside. The fine, if deposited, shall be refunded to him. .;