R.R.K.Trivedi - (1.) THIS criminal revision has been filed challenging conviction and sentence of the applicant for six months R.I. and a fine of Rs. 1,000/- under Section 7/16 of the Prevention of Food Adulteration Act, 1954, here-in-after referred to as 'Act', awarded by the learned Additional Chief Judicial Magistrate, Varanasi on 11.1.82 in Criminal Case No. 1096 of 1981 which has been confirmed in Appeal No. 19 of 1982 by Judgment and order dated 19th May, 1982 passed by V Additional Sessions Judge, Varanasi.
(2.) THE facts, in brief leading to the applicant's conviction and sentence, are that on 27th September, 1979 at 11.30 a.m. a sample of Besan (Cicer Crietinum) which is a product obtained by grinding de husked Bengal gram, was collected by B. K. Singh, Food Inspector. THE sample was sealed in three bottles one of which was sent to Public Analyst who, gave opinion that the sample contained small proportion of powdered kesari and the use of which is prohibited. Sri H. C. Verma, Nagar ;Swasthya Adhikari, Nagar Mahapalika, Varanasi sanctioned the prosecution for the offence under Section 7/16 of the Act. THE complaint was filed on 6th January, 1981 by the Food Inspector. A copy of the report of the Public Analyst was sent to the applicant as required under Section 13 (2) of the Act on 9th March, 1981, on the request of the applicant the sample kept with the Local Health Authority" was sent by the court for analysis to the Central Food Laboratory, Calcutta. THE Director, Central Food Laboratory on 20th May, 1981 concurred with the report of the Public Analyst and found the sample adulterated for presence of kesari Dal. THE prosecution examined B. K. Singh, Food Inspector, P.W. 1 in support of its case. THE applicant admitted prosecution story so far as taking of sample, dividing in three parts and keeping in sealed phials. He also admitted seal on the samples and his signatures. He also admitted the notice by Food Inspector and the receipt and signatures. He also admitted the report of the Public Analyst. THE only defence put by him was that he had sent for grinding unhusked grounded chana and when it was received from the flour mill its sample was taken which was found to be adulterated. He examined Jawahar, D.W. 1 in defence to prove that before his grounded chana was put for grinding bejhar {a mixture of kesari and chana) had been grinded in the flour mill and thus a small proportion was found in the grounded chana of the applicant which was put for grinding immediately thereafter. THE learned Magistrate did not accept the defence of the applicant and accepting the prosecution case convicted and sentenced him as mentioned above. THE applicant remained unsuccessful in appeal also. Hence this revision. I have heard learned counsel for the applicant and learned Assistant Government Advocate. It may be mentioned that the record of this case was not received and the same was not made available at the time of hearing of this revision. However, after hearing learned counsel for the applicant and after perusing the impugned orders, in my opinion, the examination of the record is not necessary and the revision can be decided on basis of the material on record. Learned counsel for the applicant has challenged the conviction and sentence on various grounds. The first submission is that there was no compliance of Rule 18 which has been held to be mandatory by this Court and there is no evidence on record showing compliance of this mandatory rule. Rule 18 requires that the copy of the memorandum and a subsequent impression of the seal used to seal the packet shall be sent in a sealed packet separately to the Public Analyst under the circumstances by a suitable means immediately but not later than a succeeding working day. Learned counsel has placed reliance in the judgment of this Court in case of Hridya Narain v. State, reported in 1980 ACC 240, There is no doubt that the provisions! of Rule 18 are mandatory which provides a safeguard to the accused in such proceedings, with the object of eliminating chances of tempering with the sample during the course of transit. But the question is whether such plea was (taken and raised by the applicant before the courts below. A perusal of the order of the learned Additional Chief Judicial Magistrate, Varanasi shows that the applicant admitted the prosecution case so far as its factual aspects are concerned. No such question was raised before the trial Magistrate. He has observed that the prosecution story has been admitted. He also admitted the report of the Public Analyst and the learned Magistrate has further observed that in view of this admission, there is no necessity on the part of the prosecution to adduce evidence. In my opinion, as the applicant admitted the prosecution case on all these material facts including the report of the Public Analyst, it is not open for him to challenge the same subsequently on the ground that Rule 18 was not complied with. It may be mentioned that the compliance of the Rule 18 is required at the stage before the opinion of the Public Analyst is received.
(3.) THE applicant contested the opinion of the Public Analyst and requested for sending the sample to the Central Food Laboratory for re-analysis but the report of the Public Analyst was not disputed on any other basis. It was not the case of the applicant at any stage: that there was tampering with the sample collected during transit. THE opinion of the Director, Central Food Laboratory also was against the applicant and the sample of Besan was found adulterated. In these circumstances, in my opinion, it is not open for the applicant to challenge the prosecution case on the ground of breach of Rule 18 of the Rules. Even from the defence set up by the applicant it appears that he proceeded with the admission that Kesari was mixed with the sample of Besan collected but he tried to explain it placing fault with the flour mill owner. In these circumstances also the alleged absence of evidence showing compliance of Rule 18, in my opinion, is of no consequence. Learned counsel for the applicant has then submitted that there was no valid sanction for the prosecution as required under Section 20 of the Act. Learned counsel for the applicant also submitted that as requirement of the valid sanction is essential element for prosecution and it can be raised at any stage, even though the sanction was not questioned before the courts below. It appears (as noticed In the judgment of this Court in case of Rajendra Singh v. State of U.P., reported in 1984 ACC 203, that by notification dated 20th January, 1979 Governor "appointed w.e.f. from the date of publication of the notification in the official gazette all Chief Medical Officers as Local Health Authorities to be Incharge of the Health Administration under the Act for the whole of the district excluding cantonment area, railway premises and railway colonies.;