Tiwana, J. - (1.) This revision petition has been directed against the rejection of the appeal of the petitioner by the learned Additional Sessions Judge, Hoshiarpur, affirming his conviction under Sec. 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, and maintaining the sentence of six months R.I. and Rs. 1000.00 as line passed by the Chief Judicial Magistrate of the same place.
(2.) The facts of the prosecution case that the petitioner deals in the sale of lemon soda water in the town of Hoshiarpur. On 29th Oct., 1976, Dr. H.P. Bhatia Food Inspector along with Dr. G.C. Garg and Parlad Bhagat went to the business premises of the petitioner and found lemon soda water bottles. He collected 9 bottles of lemon soda water from there. Three bottles were tied into one bundle with the help of a string. These were sent to the Public Analyst, who vide his report dated 6th Dec., 1976, found the presence of suspended matter and calliform bacteria in it. In the opinion of the Public Analyst, the food article, i.e., lemon soda water was adulterated. Prosecution was launched against the petitioner in the Court of the Chief Judicial Magistrate, Hoshiarpur. After completion of the prosecution evidence, when examined, the petitioner denied his presence at the time when the Food Inspector had taken into possession 9 bottles of lemon soda water from his business premises. The learned trial Magistrate believed the prosecution version and convicted the petitioner for the aforesaid offence and passed the aforesaid sentence. In default of the payment of line, the petitioner was sentenced to undergo R.I. for 11/2 months. The appeal of the petitioner before the learned Additional Sessions Judge, Hoshiarpur, was not successful.
(3.) Shri R. S. Ghai on behalf of the petitioner has argued that the procedure provided in the Prevention of Food Adulteration Act and Rules framed thereunder regarding taking of sample has been violated by the Food Inspector. On going through the evidence of the prosecution witnesses I find that the bottles which had a glass ball at the top were not opened and their samples were not divided in three separate parts for putting in three separate dry and clean bottles to be sealed in accordance with the provisions of the Act and the Rules. All the nine bottles were converted into three bundles, by putting three bottles in one bundle which again too were not sealed. There is no evidence on the file to indicate if the manufacturer of the soda water bottles was common or the contents of these bottles were common. Unless there was some indication in the form of label on the bottles or any other material with the seller, the prosecution cannot avail of the provisions of Sec. 22-A of the Act to take the contents of the bottles examined as the representative of the sample of the lot from which these were taken. This method of collecting the sample is alien to the provisions of the Prevention of Food Adulteration Act and the Rules made thereunder. Almost a similar situation of aerated water sample came to be considered in Bhagwan Dass Vs. The State and another, AIR. 1962 Pb. 419, wherein D. Falshaw, J. as he then was, observed as under:- "Now in the present case, as I have said above, the Food Inspector purchased three separate bottles of aerated water each said to contain 12 ozs. and apparently one of these bottles was sent to the Public Analyst, the other two being "dealt with according to the provisions of Sec. 11 (1). It appears to me that this is clearly an improper and illegal manner of obtaining the sample since obviously the contents of three separate and distinct bottles may not be uniform. The whole idea of prescribing this elaborate method of taking and dividing up the sample is to have a check and counter-check on the report of the Public Analyst and the clear intention is that if the sample of food taken is from a bulk supply, the quantity taken must be sufficient to be divided into three sufficient portions for the proper quantity to be sent to the Public Analyst in accordance with the provisions of Rule 22 which contains a table of the approximate quantity of various substance to be sent to the Public Analyst or the Director of the Central Food Laboratory. The sample to be given to the accused is solely for his own protection and obviously is intended to enable him to have it analysed privately for the purpose of producing evidence at the trial, if necessary to contradict the report of the Public Analyst, while third sample is kept in reserve for the matter to be decided by the Director of Central Food Laboratory in case either party in prosecution is not satisfied with the report of the Public Analyst.";