- (1.) N. N. Sharma, J. This appeal is directed against the order dated 12. 9. 1977 by which Sri K. P. Mathur, learned Special Judicial Magistrate. Allahabad acquitted respondent No. 1 under Section 7/16 of the Prevention of Food Adulteration Act in case No. 1871/76 under Section 7 (1) 16 (1) (a) (i) of Prevention of Food Adulteration Act. Prosecution story briefly stated is that on 7. 1. 1975 at about 2. 30 P. M. Sri Ram Chandra Food Inspector of the area Colonel Ganj, Allahabad found respondent selling mustard oil at his shop. He disclosed his identity and served a notice in form No. 6 (Ext. 1) on the respondent. He purchased 375 gms. of mustard oil for a sum of Rs. 1. 90 P from respondent vide Ext. Ka. 2 which was not attested by any one as none was prepared to witness the transaction. The sample was filled separately n three dry bottles and labelled and packed and sealed in accordance with rules. All sealed bottles were sent to Public Analyst. Public Analyst found the result as follows '. (a) Butyre-refractmeter reading at 400-63. 0. (b) Sponification Value 181. 1 (c) Iodine Value 126. 1. (d) Free-fatty acids (as Oleic Acid) O. 58%, (e) Unsaponifiable matter within limit. (f) Test for the presence of Argemone Oil. Negative. (g) Test for the presence of Hydrocyanic Acid. Negative, (I) Linseed Oil 26. 38%. and was of the opinion that sample contained 26% Linseed oil, vide report Ext. Ka. 4. On receipt of this report which was proved by Sri S. S. Srivastava (P. W. 2) Food Clerk in Nagar Mahapalika complaint Ext. Ka. 5 was submitted against the appellant after procuring necessary sanction for prosecution, Ext. Ka. 4. In his statement, respondent denied that he was selling mustard oil and received notice in form No 6. Prosecution examined Food Inspector (P. W. 1.) and Sri. S. S. Srivastava (P. W. 2 ). In his statement recorded under Section 313 of the Code of Criminal Procedure respondent alleged that the evidence adduced by P. Ws was wrong. No evidence was adduced in defence. Learned trial Magistrate acquitted the respondent. He mainly proceeded on the reasoning that there has been non-complian ce of Section 11 (1) (b) of the aforesaid Act; he further found that Rule 9 (j) which provides that a copy of the report of Public Analyst should be sent to the accused by post within ten days of its receipt, has not been complied with and thus acquittal was recorded. Learned counsel for the appellant pointed out that Rule 9 (j) was not mandatory but directory as has been held recently by this Court in Sumer Chand and another v. State (1980 P. F. A. C. , 259 ). It appears that there was a divergence of views on this point and the matter was referred to Division Bench and the view of the Division Bench was incorporated in the aforesaid authority. Thus, the conten tion was that as learned trial Magistrate held the aforesaid rule to be manda tory, and so his judgment was wrong and the acquittal should be set aside. Even in the said authority it was observed that if accused had been prejudiced by non-compliance of Rule 9 (j) conviction cannot be permitted to stand. Between 13. 5. 1974 and 4. 1. 1977 sub-rule (j) of Rule 9 was operative and did cast an obligation on Food Inspector to send a copy of Public Analyst's report within 10 days of the receipt by him to the accused by registered post. In this case the report of Public Analyst was received in the office of Nagar Swasthya Adhikari on 27. 12. 1975 as testified by Sri Suresh Chandra (P. W. 2 ). It was alleged to have been sent to appellant on 7. 2. 1976 but DO postal receipt or acknowledgment due are on record. Sri Suresh Chandra, Food Inspector expressed ignorance about its receipt by respondent No. 1. In his statement respondent No. 1 did not admit the same. On account of violation of this rule which embodied a principle of natural justice, learned trial Magistrate was perfectly justified in presuming that respondent has been materially prejudiced in this case which afforded him a ground to claim acquittal. However learned counsel for respondent based himself mainly on Section 11 (1) (b) of the said Acts. It reads as below: " (1) When a Food Inspector takes a sample of food for analysis, he shall: (a) (b) except in special cases provided by rule under this Act, divide the sample then and there into three parts and mark and seal or fas ten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be pres cribed. . . . . . . . . " In his statement Food Inspector stated in cross-examination "i got. . . . . . 125 gms. (of oil) filled in each bottle from accused. . . . . . . . . . . . I had no measure with me. . . . . . . . . " Learned Counsel for the appellant pointed out that there has been no breach of the aforesaid provision by procedure adopted by the Food Inspector. In this connection reliance has been placed on 5. G. Chandnane v. Tamizuddin and another (1979 P. F. A. C. 393 ). It appears that in that case Food Inspector obtained the sample of 660 ml. of milk from respondent No. 1; the Food Inspector had two measures with him while bying the milk. One was of 200 ml. and another of 20 ml. The milk that was taken was being carried by accused (respondent No. Din a milk can. The sample was seized from the same can. However, it was not seized in a bulk nor it was divided into three separate bottles of 220 ml. each from the bulk of 660 ml. The Food Inspector used the two measures each time and put 220 ml. into three separate containers every time, although the milk was taken from the very same can. On these facts the contention was that Section 11 (1) (b) has not been complied with. This contention of the learned trial Magistrate was not accepted by the High Court; however, the order of acquittal was not disturbed, by High Court, as there was non-compliance of Rule 9 (j) which was considered as mandatory. Learned counsel for the appellant next relied upon Banke v. State (1979 A. I. P. F. A. J. , 88) in which it was observed that the sample need not be taken in a bulk. It was sufficient compliance of law if the sample is taken from the same canister of oil and divided into three parts or three separate phials are dipped in the same article of food and properly marked and sealed in accordance with law. When three bottles are dipped in the same canister of mustard oil, it cannot be said that each one of them does not represent the whole bulk of the mustard oil contained therein. On behalf of respondent reliance was placed upon State of Maharashtra v. Mohan Lal Vaishnowa and another (1978 P. F. A. G. , 246 ). In that case sample of sweet oil was taken in three bottles each weighing 125 gms. It was held that it was not the procedure for sampling and so the order of acquittal was not disturbed in that case. Reliance was placed in that case on Babu Lal v. State (1976p. F. A. C. . 69) wherein the High Court of Madhya Pradesh set aside conviction in a similar case where oil was seized weighing 125 gms. each time separately and bulk of 375 gms. was not sub-divided into three parts. A similar view was held in Daulat Singh v. State of Madhya Pradesh (1979 M. P. , 457) In that case Food Inspector did not purchase the sample of milk in a bulk of 660 ml. but purchased 200 gms. of milk in three phials separately with a mea sure of 200 mgs only and separately poured it into three bottles. It was held that the procedure adopted was not in conformity with the mandatory provision of Section 11 (1) (b) of the said Act. Bombay High Court in State of Maharashtra v. Ranchhoddas Moolji Bhai Joshi and others (1979 A. I. P. F. A. J. , 467) held that the said provision is mandatory. In that case the Food Inspector purchased 600 gms. of curd. Instead of collecting the whole bulk of the sample in one con tainer and then dividing it into three parts, the Pood Inspector poured curd from 6 out of 20 glasses each containing 100 gms curd approximately in bottles. It was held that Food Inspector had not complied with mandatory provision of Section 11 (1) (b ). The acquittal was affirmed by High Court. I have carefully considered over the matter. Appeal fails for the follow ing reasons: 1. There is nothing authentic on record to show that the result of analysis was sent to respondent No. 1 under Rule 9 (j) and non-com pliance of the rule has not materially prejudiced the respondent No. 1,
(2.) THE mere fact that a rule is directory and not mandatory does not mean that it should be contravened at each stage and its breach must be encouraged. In his statement. Food Inspector alleged that he made over one phial to the appellant and deposited the remaining two phials in the otfice of Nagar Mahapalika (Swasthya Adhikari ). He himself did not send the sample to Public Analyst through registered post. Sri S. S. Srivastava (P. W 2) testified that two bottles were deposited in N. S. A. . office by Food Inspector: one bottle and one memo were sent by him to the Public Analyst. Another memo alongwith seal was sent through registered post. There is no evidence to show date and manner of sending the rele vant form and sample to Public Analyst. No postal receipt or acknowledgment due were filed to corroborate testimony of P. W. 2. I find that in this case Food Inspector conceded that he himself did not seize the sample either in a bulk or in part. He got bottles filled by the respondent, who poured oil in each bottle to the extent of 125 gms. each. He did not carry any measure with him. There is nothing on record to show as to whether the oil was poured by respondent from one canister or more. According to procedure laid down above it was the duty of the Food Inspector to have seized the sample himself and to have carried his own measures. He did not act in accordance with rules. In Additional Collector of Central Excise Calcutta v. National Tobacco Co of India Ltd (A. I. R. 1972 S. C. 2564) it was observed "the rule of construction that where a mode of performing a duty is laid down by law it must be performed with that mode or not at all, is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where specific procedure is laid down for the perfor mance of a duty". Thus, the manner in which the sample was taken shows the irresponsible behaviour of a Food Inspector, who has violated the provisions of Section 11 (11 (b) of the said Act and it is not for this Court to countenance all these flaws. An appeal against an acquittal is a serious matter. The liberty of a person once acquitted is again to be placed in jeopardy. On a careful perusal of evidence and reasons on which order of acquittal was based, I do not find that view of learned trial Magistrate was perverse or unreasonable or illegal to justify interference by this Court. In the result, appeal fails and is dismissed as devoid of force. .;