- (1.) C. A. Rahim, J. This Revison has been directed against the judgment and order of the Sessions Judge, Jalaun at Orai, dated 14-12-1990 in Criminal Appeal No, 42 of 1990, dismissing the Appeal of the accused-revisionist who was convicted under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to suffer R. I. for six months' and a fine of Rs. 1,000 imposed on 27-6-1990 by the Judicial Magistrate, Jalaun at Orai, in Criminal Case No. 890 of 1988.
(2.) IN the instant case the Food INspec tor, Rampur, purchased a sample of milk from the accused- revisionist at Kalpi Bus stand on 17-6-1988 at 9 a. m. After observing the necessary formalities on phial of the sample was sent to the Public Analyst who reported that the milk was adulterated. After holding the trial the learned Magistrate convicted and sentenced the ac cused- revisionist in the aforesaid manner. An appeal was preferred by the accused-revisionist which was dismissed by the Ses sions Judge. Sri Dharam Pal Singh, appearing for the revisionist has raised two points. Firstly, that in compliance of section 17 (a) of the Prevention of Food Adulteration Act (hereinafter referred to as the "act") the sample of the milk was not sent to the Public Analyst on the following day. Secondly, the other two phials in compliance of Rule 17 (b) should have been deposited with the local authority on the following day was not done by the Food Inspector. Sri Singh has contended that since Rule 17 is mandatory, non-observance of the said Rule vitiates the trial. He has referred the case of State of Maharashtra v. Rajkaran, 1988 EFR 550, but the said decision does not appear to be applicable in this case since the Supreme Court held: "it is mandatory to have the materials in Rules 17 and 18 separately sent to the Public Analyst".
(3.) THE emphasis was on the point that it should be separately sent. If both the Rules are read together it will be seen from Rule 18 that a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst. In the in stant case the dispute is with regard to the observance of Rule 17. So I do not think that the Supreme Court case has any application in deciding the points raised by the learned counsel. Reliance also is placed on the Single Bench decision in fhool Singh v. State of U. P. and another, 1991 (2) EFR 344 but in that case there was no evidence to show that the sample was sent by registered post. So it was held that the prosecution has failed to establish the dispatch of the materials referred to in Rules 17 and 18 to the Public Analyst by registered post, which are man datory. The learned counsel has also relied on the case of State of Haryana v. Isher Dass, 1985 Crlj 1061 (FB) wherein it has been held that: "when the old and the new rules are jux taposed for study, it emerges that the new rule requires the Food Inspector to send the seized sample and Form VII in sealed condition immedi ately to Public Analyst but not later that the succeeding working day. The other amendment in this rule is that even Form VII has to be sent in a sealed condition. Previously, it was only to be enclosed with the sample. The sample container and Form VII sealed in the manner provided in R. 17 (a) has to be deposited with the local (health) authority immediately, but not later than the suc ceeding working day. This amendment lays em phasis on steps to rule out any possibility of tampering with the sample. It is to be noted that at every stage in this rule the word "shall" has been used which does not leave any doubt about the mandatory character of its language";