AGRAWAL, J. - (1.) THIS appeal has been filed by the State after obtaining leave to appeal under section 378 (iii) Cr. P. C against the judgment dated 25th, April, 1977, passed by the Munsif & Judicial Magistrate, First Class, Gangapur (Bhilwara) in Criminal Case No. 270 of 1976 whereby respondent Nagji Ram was acquitted of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act' ). The case of the prosecution is that on 14th January, 1976, at about 9 A. M. the respondent was selling milk,, Shri Prakash Chandra (P. W. I), Food Inspector, Gangapur, suspecting that milk was adulterated, purchased 660 mililitres of milk from the respondent after paying the price for the same. After purchasing the said milk he divided it into three parts and put it in three separate bottles and after putting the requisite quantity of formalin in each bottle he sealed the said bottles in the presence of Chhagan Lalp. W. 2. One bottle was given to the respondent and out of the remaining two bottles one bottle was sent for Chemical Examination to the Public Analyst along with Memo (Ex. P. 5 ). The report (Ex. P. 6) received from the Public Analyst showed that the sample of milk sent to him was adulterated, as it contained about 17 percent of added water. Thereafter, the Food Inspector, after obtaining the sanction of the Chairman, Municipal Board, Gangapur, under section 20 of the Act filed a complaint in the Court of Chief Judicial Magistrate, Bhilwara. The said complaint was transferred by the Chief Judicial Magistrate for trial to the Munsif & Judicial Magistrate, First Class, Gangapur. The Judicial Magistrate by his Judgment dated 25th April, 1977, acquitted the respondent of the charge under section 7/16 of the Act on the view that there was non-compliance with the mandatory provisions of Rule 18 of the Prevention of Food Adulteration Rules, 1955, (hereinafter referred to as the 'rules' inasmuch as prosecution had failed to establish that the specimen impression of the seal by which container containing the sample had been sealed, had been sent separately to the Public Analyst by registered post or by hand, Feeling aggrieved by the aforesaid order of acquittal passed by the Judicial Magistrate, the State has filed this appeal after obtaining leave to appeal from this Court.
(2.) I have heard Mr. Niyajuddin Khan, learned Public Prosecutor for the State and Mr. N. P. Gupta learned counsel for the respondent. After a perusal of the record and after hearing the Public Prosecutor and Shri N. P. Gupta, 1 find that this case is fully covered by the Judgment of this Court in State Versus Jai Narain and State Versus Sohan Lal, Criminal Appeals No. 401/77 and 403/77 decided on August 9, 1983. In State Versus Jai Narain (Supra), it has been held that presumption with regard to regularity of official acts arising under section 114 (e) of the Evidence Act can be drawn for the purpose of holding due compliance with the mandatory provisions of the Rules including Rules 7, 17, and 18. In that case, although, there was no evidence to show that specimen impression of the seal which was used for the purpose of sealing the container containing the sample had been sent separately by the Food Inspector to the Public Analyst, the report of the Public Analyst contained a recital to the effect that the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis. It was held that said recital in the report of the Public Analyst must be presumed to be correct and in view of the said presumption, it was not necessary for the prosecution to adduce evidence to prove that the Food Inspector had sent separately to the Public Analyst the specimen impression of the seal used for sealing the container of the sample and that on the basis of the report of the Public Analyst, it must be held that the Food Inspector had sent the specimen impression of the seal used for sealing container of the sample separately to the Public Analyst and that there was due compliance of the provisions of R. 18 of the Rules. In the said case, this Court, however, found that although Food Inspector was the complainant, the complaint was submitted by the Assistant Public Prosecutor and the trial was also conducted by the Assistant Public Prosecutor, who had no authority to present the complaint on behalf of the Food Inspector or to conduct the case on his behalf. It was held that the complaint was presented by a un-authorised person and the trial was also conducted by the un-authorised person and that the said infirmity went to the root of the matter and vitiated the trial and that no conviction could be recorded. This Court, therefore, while dis-aggreeing with the reason given by the Magistrate for acquitting the accused persons in both the cases, dismissed the said appeals and upheld the orders of acquittal. In the present case also, the Food Inspector Shri Prakash Chandra (P. W. I) has not deposed that specimen impression of the seal used for sealing the container containing the sample had been sent separately to the Public Analyst. But the report of the Public Analyst (Ex. P. 6) contains a recital in the same terms as that contained in the report of the Public Analyst in State vs. Jai Narain (Supra ). For the reasons given in State vs. Jainarain (Supra) a presumption must, therefore, be drawn on the basis of the aforesaid recital in the report of the Public Analyst and it must be held that the Food Inspector sent the specimen impression of the seal used for sealing the container of the sample separately to the Public Analyst and that there was due compliance of the provisions of Rule 18 of the Rules, This would mean that the reason that has been given by the Judicial Magistrate for acquitting the respondent, viz. , non-compliance with the mandatory provisions of Rule 18 cannot be upheld. In this case also the complaint had been made by the Food Inspector after obtaining the sanction of the Chairman, Municipal Board, Gangapur, under sec. 20 of the Act and even though, the Food Inspector was the complainant, the complaint was submitted in the Court by Shri Surendra Kumar, Assistant Public Prosecutor. The order-sheet of the Court of Judicial Magistrate shows that the case was conducted by the Assistant Public Prosecutor on behalf of the complainant. There is nothing on the record to show that the Assistant Public Prosecutor had the authority to present the complaint on behalf of the Food Inspector Shri Prakash Chandra and to conduct the case on his behalf. In view of the Judgement in State vs. Jainarain (Supra) it must be held that the complaint was presented by an un-authorised person and the trial was also conducted by unauthorised person and the aforesaid infirmity goes to the root of the matter and the trial stands vitiated and no conviction can be recorded on the basis of the aforesaid trial.
(3.) IN the circumstances, the judgment of acquittal passed by Judicial Magistrate has to be affirmed. The appeal, therefore, fails and it is accordingly dismissed. .;