- (1.) THE material facts of this case, as alleged by the complainant, are that in the morning of Jan. 15, 1965 P. W. 1 Kayum Ali, Food Inspector, Udaipur, gave a notice, through Form No. VI, (Ex. P. 1) to the milkman Kana to the effect that he would buy some milk from him for the purpose of analysis, to be conducted by the Central Pub. Health Laby. Raj. , Jaipur Soon after the Food Inspector bought from him 660 mililitres of milk for 37 np. and obtained the signature of the accused below the said Form. This the Food Inspector did when he saw the accused Kana taking two drums containing 18 Kilogramme of milk THE sample so obtained was divided into 3 parts, each of which was held in a phial. All the phials were duly sealed in presence of two witnesses, Bhanwar Singh, P. W. 2, and Jamnadas, P. W. 3. One of the sample phials was given to the accused. THE other was sent to the Public Analyst, Rajasthan, Jaipur, and the third one was kept by the Inspector himself. THE sample which was sent for qualitative analysis to the Public Analyst, Jaipur, was accompanied by the prescribed Memorandum in Form No. VII. It was also mentioned in the memorandum that a specimen impression of the seal used for sealing the packet was being sent separately by registered post. THE Public Analyst, Jaipur received the sample on January 18, 1965. He found the seal of the sample in tact and unbroken. THE Public Analyst then examined the sample and declared the result of his analysis as under - 1. Fat contents . . . . . . 2.2% 2. Solid non-fats . . . . . . 3 44% 3. Cane sugar and starch . . . . . . Nil THE Public Analyst was of the opinion that the milk sample was adulterated by reason of its containing 62% of added water. THE Food Inspector then obtained necessary sanction from the Commissioner, Municipal Council, Udaipur, and lodged a complaint with the court of the Municipal Magistrate of the place for the prosecution of the accused under sec. 16, read with sec. 7, Prevention of Food Adulteration Act, 1954 (hereinafter called the Act ). THE Municipal Magistrate, framed charge against the accused under the aforesaid provisions of law on November 8, 1967, to which he pleaded not guilty and claimed trial. In support of its case the prosecution examined the Food Inspector Kayum Ali, P. W. 1 as also the two 'motbirs' Bhanwar Singh, P. W. 2, and Jamna Das P. W. 3. In his statement, recorded under Sec. 342, Cr. P. C. the accused pleaded that he was taking the milk not for sale but for giving it to one Udailal Mehta. He admitted that his milk was checked by the Food Inspector and its sample was obtained from him. In his defence he examined 2 witnesses, Dhanna Singh D. W. 1 and Nandlal Nai D. W. 2. Eventually the trial court acquitted the accused Kana on the following 3 grounds - (1) that the prosecution has failed to prove that the accused was taking the milk for the purpose of selling it; (2) that the prosecution has not succeeded in establishing that the Public Analyst had compared the seals of the container and the outer cover with the specimen impression received separately in accordance with rule 7, read with rule 18 of the Prevention of Food Adulteration Rules, 1955 and (3) that the prosecution was launched with inordinate delay of more than 9 months.
(2.) AGGRIEVED by the above verdict, the Municipal Council, Udaipur, has taken this appeal. It has been submitted that the findings given by the court below are illegal and erroneous. The learned Magistrate went wrong in holding that the certificate given by the Public Analyst was not admissible in evidence. The learned Magistrate ought to have presumed under illustration (e) to sec. 114, Evidence Act, that the Public Analyst performed the duties regularly and that he acted in accordance with the rules. He must have compared the specimen impression received by him with the seal of the container. The learned counsel further submitted that the court below failed to properly appreciate the definition of 'sale' given in sec. 2 (xiii) of the Act. In regard to delay the counsel submitted that the benefit of sec. 13 of of the Act could be claimed by the accused only if he exercised his right in the trial court. Here, as the accused did not do so, the case would have been decided on the basis of the report of the Public Analyst. Rule 18 of the Prevention of Food Adulteration Rules, 1955 (hereinafter to be referred to as Rules), reads as follows - "a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post or delivered to any person authorised by him. " Sub-rule [1] of rule 7 of the Rules is reproduced below - "on receipt of package containing a sample for analysis from a food Inspector or any other person the Public Analyst or an officer authorised by him shall compare the seals of the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. " The learned Municipal Magistrate held that as there is no evidence on the record that the Public Analyst compared the seal of the container and of the outer cover with the specimen impression received separately in accordance with R. 7 (1) quoted supra, the report of the Public Analyst was not admissible in evidence. In a D. B. case decided by the Gujarat High Court, State of Gujarat vs. Shantaben [1], it was observed that the Rules were framed in order to prevent the possibility of tempering with the sample before it reached the Public Analyst. Where the report of the Public Analyst showed that the seals were intact and unbroken, but he does not say that the seals on the container were compared with the specimen seal sent to the Public Analyst, the court cannot be sure that the sample which reached the Public Analyst has not been tempered with on the way. Rules 7 and 18 were framed in order to prevent such a possibility. There is nothing in the judgment of the Gujarat High Court to indicate that the applicability of illustration [e] to sec. 114, Evidence Act, to the act of the Food Inspector or Public Analyst was considered. In Shankerlal's case, Criminal Appeal No. 180 of 1966, decided by the Madhya Pradesh High Court on August 25, 1966, it was held that the provisions of the Rules are mandatory in nature and there cannot be a presumption that official act has been properly performed. In that case the Division Bench relied upon the Gujarat case State of Gujarat vs. Shantaben (supra ). In Mary Lazarado vs. The State (2), it was pointed out that rules 7 and 18 of the Rules are mandatory in nature and hence their non-compliance affects the evidentiary value of the report of the Public Analyst and that the conviction solely based upon it cannot be sustained. Similar observations have been made by this High Court in the case reported as State of Rajasthan vs. Kapoorchand [3]. A contrary view taken in the matter is supported by the following observations of the Supreme Court in K. K. Pockunju vs. K. K. Ramakrishna Pillai, Criminal Appeal No. 29 of 1968 decided on December 2, 1968 - "the only point of any substance which has been pressed before us by the learned counsel for the appellants is that the Rules framed under the Act had not been complied with inasmuch as it has been proved that the specimen impression of the seal used had been sent to the Public Analyst. Rule 18 of the Prevention of Food Adulteration Rules, 1955, provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by post. The High Court was not at all impressed with the contention based on R. 18. It relied on the report of the Public Analyst Ex. P. 9 which was in Form III as prescribed by the Rules in which it was stated, inter alia, that the Public Analyst had received from the Food Inspector a sample of compounded misky asafoetida marked No. C 2/65 for analysis, properly sealed and packed and that he had found the seal intact and unbroken. The contention which was pressed and which has been reiterated before us is that it is nowhere stated in Exh. P. 9 that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under R. 7, the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal of the container. We do not find any error in the decision of the High Court on the above point. " The principle laid down by their Lordships of the Supreme Court, by virtue of Art. 141 of the Constitution, is binding on this Court and has to be followed, even though there may be a contrary decision of this Court. In K. Rajaram vs. Koranna [4], it was observed by Naik J. that the report of the Public Analyst in Form No. III need not mention that the Public Analyst had compared the seal on the packet with the specimen seal sent separately. The omission is not of vital importance. The learned Judge further said that it would not be proper to place undue emphasis on a technical safe guard, if the specimen seal must have been sent separately as required by R. 18, there is no reason why the Public Analyst should fail to discharge the duty enjoined on him. At any rate, the High Court concluded that it could be legitimate to draw a presumption under illustration [e] to sec. 114, Evidence Act. A Full Bench of the M. P. High Court, in State vs. Chhote Khan [5], lays down that presumption under sec. 114, Evidence Act, and illustration [e] thereunder in relations to regular performance of the official acts applies to the report of the Public Analyst, though the presumption no doubt is rebuttable. Such a report is not rendered inadmissible only because it has not been specifically established by evidence aliunde that the requirements of rules 7 and 18 of the Rules were duly complied with. In Asuram vs. The State [6] Hon'ble Chhangani J. held it would hardly be fair to discredit the report of the Public Analyst on a mere suggestion of the accused or mere theoretical possibility of tempering with the sample taken from him, in the absence of any elaborate formal evidence Likewise in para 10 of this Court's judgment reported as Swaroop Ram vs. State [7], it has been held by Hon'ble Jagat Narayan, J. (as he then was) - "finally it was argued that no evidence was produced to prove that the samples were not tempered with after they had been taken. The samples were duly sealed by the Inspector in the presence of the applicant. They were received by the Analyst in a sealed condition. There is no material on record from which any suspicion might arise that the bottles were tempered with. The presumption therefore is that the seals were not tempered with. " The principle embodied in illustration [e] to sec. 114, Evidence Act, as stated above, is that when any official or judicial Act is shown to have been done in a manner substantially regular, it is presumed that the formal requisites for its validity have been duly complied with. If the statute itself prescribes that certain formalities have to be necessarily observed before the report of the Public Analyst can be admitted in evidence, the position perhaps would not be alike, for in that eventuality it would be incumbent to prove that definite shape was given to the specific procedure. In the absence of such a provision, the report of the Public Analyst is, without any other proof, admissible in evidence and the presumption arising under illustration (e) to sec. 114 of the Act to the regular performance of the official act applies to it, In the present case the trial court could have raised a presumption under illustration (e) to sec. 114, Evidence Act, in relation to the regular performance of the official act by the public analyst. Illustration (e) applies proprio vigore to the report of the Public Analyst. That being so, the court below fell in error in holding that the report of the Public Analyst, in the absence of proof that the Public Analyst compared the seals on the container and the outer cover with the specimen impression received separately, was inadmissible in evidence. The other ground on the basis of which the trial court acquitted the accused is that the prosecution failed to prove that the accused was a milk-vendor. The definition of 'sale' as given in sub-sec. (xiii) of sec. 2 of the Act reads as below - "sale" with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use. or for analysis and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale, of any such article and includes also an attempt to sell any such articles" The Act gives a distinct definition of 'sale' in sub-sec. (xiii) of sec. 2, which specifically includes within its ambit, a sale for analysis. Such a 'sale' must be regarded a 'sale' even if the transaction contained an element of compulsion. It is true that a contract comes into existence by the acceptance of the proposal made by one person to another by that other person. That other person is not bound to accept the proposal, but that does not mean that when that person has no other alternative but to accept the proposal, the transaction would not amount to a contract: vide Mangaldas vs. Maharashtra State (8 ). In the instant case there is evidence of Kayum Ali, Food Inspector, P. W. 1, and the two Motbirs, Bhanwar Singh P. W. 2 and Jamnadas. P. W. 3, that the Food Inspector bought the sample of milk from the accused for the purpose of analysis after giving him a notice in the prescribed Form No. VI. It is, therefore, difficult to appreciate the reason which led the trial court to hold that the transaction like the present one does not amount to 'sale'. Coming now to the last point dealt with by the trial court, regarding the delay in launching prosecution against the accused, sufficient to say that the occurrence is alleged to have taken place on January 15, 1965. The complaint was made by the Municipal Council on September 29, 1965. In this connection the only grievance which the accused could have was that because of such a procrastination be could not make an application for sending a sample to the Director of Food Laboratory for a certificate in accordance with sub sec. (2) of sec. 13 of the Act and, therefore, he has been prejudiced. There can be no doubt that sub-sec. (2) of sec. 13 of the Act does give a right to the accused to have the sample sent to the Director of the Central Food Laboratory. But it is only when such a certificate is available that it would supersede the report given by the Public Analyst in accordance with sub-sec. (3) of sec. 13 of the Act. If the accused, however, does not choose to exercise that right, the case against him can be decided on the basis of the report made by the Public Analyst. Difficulty would crop up only when the accused does exercise the right by making a request to the court for sending the sample for analysis to the Director of the Central Food Laboratory and the Director is not in a position to issue a certificate because of the sample having deteriorated: vide Munpl. Corpn. of Selhi vs. Ghiseram (9 ). In the instant case the accused made no application whatsoever that the sample should be sent to the Director of the Central Food Laboratory for the exact determination of its components. It cannot, therefore, be said that the accused has been prejudiced in his defence and has been denied a valuable right of defending himself solely due to the deliberate act of the prosecution. For the reasons stated above, the acquittal of the respondent was not justified I, therefore, accept this appeal and set aside the order of acquittal passed by the Municipal Magistrate, Udaipur, on May 2, 1969. I convict the accused under sec. 16, read with sec. 7 of the Act. As the occurrence took place about 6 years back, I decline to send the accused to jail I, however, impose on him a fine of Rs. 500/-, in default of payment of which he shall undergo simple imprisonment for a period of 3 months. The trial court shall recover the amount of fine in accordance with law. . ;