BERI, C. J - (1.) THIS is a criminal revision directed against the judgment of the learned Sessions Judge, Sri Ganganagar dated November 23, 1971, whereby he confirmed the sentence of Gori Shanker, the applicant, to 6 months' rigorous imprisonment and a fine of Rs. 200/- u/s. 7/16 of the preventions of Food Adulteration Act which was awarded to him by the Sub Divisional Magistrate, Raisinghnagar for selling adulterated Dhania (coriander ). Veersingh Chowdhari, Food Inspector visited the shop of the applicant on the morning of August 5, 1967 at Anupgarh and purchased 375 grams of powdered Dhania on payment of Rs. 1. 50p. He put the samples in three phialsin equal quantity and sealed them in the presence of the Motbirs and gave one phial to the accused along with Form No. 6 and sent another to the Chemical Analyst, Jaipur, who found the sample to be adulterated with foreign matter as per his report Ex. P/5. Before the learned Magistrate the prosecution examined Sohanlal Motbir (PW/l) and Food Inspector Veersingh (PW/2 ). The accused admitted having sold the sample but he denied any adulteration by him and added that he sold it as he had purchased from Vijayuagar. The learned Sub-Divisional Magistrate found that the sale of Dhania stood proved and that it was adulterated with foreign matter and, therefore, he convicted the applicant and sentenced him to 6 months' rigorous imprisonment and to pay a fine of Rs. 208/ -. An appeal was taken before the learned Sessions Judge, Sri Ganganagar and it was urged that sec. 10 sub-sec. (7) had not been followed in this case; and that the time and the date of the examination of the sample have not been mentioned in the report of the Public Analyat and as such the appellant was entitled to acquittal. The learned Sessions Judge rejected both these contentions and affirmed the sentence as indicated above
(2.) LEARNED counsel for the applicant has taken before me several grounds assailing the applicant's conviction. The first ground urged by him is that Veer Singh is not a Food Inspector as required by the law and taking sample by him and subsequent proceedings are, therefore, vitiated. Sec. 9 of the Prevention of Food Adulteration Act (hereinafter called "the Act") lays down that the Central Government or the State Government, may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be Rule 8 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called "the Rules") prescribes the qualifications. The learned Deputy Government Advocate urged that this point was not raised before the two courts and it relates to a question of fact and it should not be permitted to be agitated before this Court in the revisional jurisdiction. I have gone through the evidence of Veer Singh. In his examination-in-chief he has stated that on 5-8-67 he was appointed as Food Inspector in Anupgarh and he has powers under the Act upto 33th March, '70. In cross-examination he has stated that had taken charge from Mr. J. N. Mathur as Food Inspector of Vijaynagar area. The applicant neither in his own statement nor in his cross-examination challenged the statement made on oath by Veer Singh notwithstanding the fact that he had three opportunities to cross-examine him on 7-10-68,3-2-69 and 25-3-69. There is no reason to disbelieve the Food Inspector's statement made on oath. It was believed by the trial court and was never challenged even before the first appellate court. The contention of the learned counsel for the applicant is rejected. The second ground urged by the learned counsel for the applicant was that the procedure as laid down in sec. 11 and particularly rules 12 and 22 not having been followed, the investigation was vitiated and the accused be acquitted. Sec. 11 provides that when a food inspector takes a sample of food for analysis, he shall give notice in writing to the person from whom he has taken the sample in Form 6. I have read the language of Form 6. It reads, - "i have this day taken from the premises of. . . . . . . . . . . . situated at. . . . . . . . . . . . . . samples of the food specified below to have the sample analysed by the public analyst for. . . . . . . . . . . . . . . . . . Details of food. . . . . . . . . . . . . . . Place. . . . . . . . . . . . . . . Date. . . . . . . . . . . . . . . . Food Inspector Area. . . . . . . . . . . . . " The learned counsel's contention is that this form ought to have been given to the applicant before the sample was taken. The argument has no substance. The language of the Form clearly indicates that it records a past transaction and the purpose for which the sample has been taken presumably to warn the seller that the Food Inspector is going to get the sample analysed and the seller may, therefore, preserve his own sample if he cares to do so. The language of this Form does not show that it ought to be given first before the sample is purchased. According to rule 22 the quantity of sample to be sent to the public analyst is specified. The argument of the learned counsel is that the quantity of spices under Item 17 to be sent to the public analyst is 150 grams, whereas the Food Inspector having purchased only 375 grams of Dhania and divided it in to 3 equal parts, he must have sent 125 grams of it as against 150 grams to the Public Analyst. Thus rule 22 is violated. In my opinion, the argument has no force. The reason is that in the table below rule 22, column 3 the words employed are "approximate quantity to be supplied". Thus a few grams more or less is permitted to be supplied to the Public Analyst. Assuming for the sake of argument that 375 grams was precisely divided into 3 equal parts, only 25 grams less in weight was the sample sent to the Public Analyst. Courts have consistently held that any shortage in the weight of sample does not vitiate the trial. In Nagar Swasthya Adhikari, Nagar Mahapalika Agra vs. Ant. Ram (l), where the quantity of Jalebi sent for analysis was only two ounces and not 16 ounces as required, it was held that no prejudice was caused to the accused and that there was no breach of any of the provisions of law. It has been held in Public Prosecutor vs. Bashir Sahib (2), Public Prosecutor vs. Mohammad Yousuf (3), Public Prosecutor vs. Passala Rama Rao (4) and Public Prosecutor vs. Venkatawami (5) that any variation in the quantity indicated in rule 22 does not effect the result of analysis. In my opinion the object behind this rule is to provide adequate quantity of a sample for effective scientific tests. The grievance, if any, on account of such shortage could be that of the Public Analyst if he was unable to test the sample on account of its inadequacy in weight. In the case before me the Public Analyst no where made any grievance that he could not test the quantity because it was 25 grams less in weight. There is no substance in this argument and it is rejected. The third argument urged by the learned counsel was that under sec. 10 (7) the Food Inspector when he takes action under clause (a) of sub-sec. (1), sub-sec. (2), sub-sec. (4), or sub-sec. (6) he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. The Inspector had taken two Motbir witnesses when he took the sample. He had examined the peon. The peon is certainly under the District Medical and Health Officer but that does not mean that he would speak a lie on that account. In point of fact taking of sample has never been disputed by the accused and it is futile to invoke the aid of sec. 10 (7) for the purposes of assailing his conviction. Sec. 10 sub sec. (7) speaks of calling one or more persons to be present at the time when such action is taken and take his or their signatures. The Food Inspector had called 2 persons. He has examined one of them. I can quite appreciate his hesitance in examining the other man who is a shop-keeper in the same locality. Thus there is no weight in this criticism of the learned counsel. The fourth argument raised by the learned counsel is that sec. 13 read with rule 7 was not complied with. Rule 7 reads, - "on receipt of package containing a sample for analysis from Food Inspector or any other person, the Public Analyst or another officer authorised by him shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. " Ex. P/5 contains an endorsement of the comparison of the seal. The Food Inspector was not cross-examined whether the sample of the seal was sent or not, nor were any grounds raised before the first appellate court. Learned counsel cited Messrs. Hetai Chandra and Surendra Nath Dey vs. Corporation of Calcutta (6), State of Gujarat vs. Shantaben (7) and Belgaum Borough Municipality vs. Shridhar Shankar Kundri (8 ). The plain object of the rule is to prevent the possibility of tampering of the sample in the process of its transmission. The minute I find that the Public Analyst says that he had compared the seal and this not having been disputed in the courts below I find no substance in this contention. The last argument raised is that the consent for the prosecution given in this case was not proper. The consent Ex. P/6 is in the following words - "i, Murarilal Chug Chairman Municipal Board Anupgarh hereby give written consent to the prosecution of Sh. Gori Shanker s/o Shri Lalchand Arora resident of Anupgarh in the court of law for the offence made under the sec. 20 of the Prevention Food Adulteration Act, 1954 . . . . . . . . . . . . . . . . . . . . . . . . " Learned counsel assails this consent firstly, on the ground that there was no offence committed under sec. 20 of the Act and, therefore, it is no consent in the eye of law. The syntax is indeed not happy. What it means in substance is that the Chairman gave written consent under sec. 20 of the Prevention of Food Adulteration Act for the prosecution of Gorishanker for the offence committed by him under that Act. The learned counsel added that it shows that mind was not applied by the Chairman. The object of sec. 20 is that no prosecution for the offence under the Act shall be instituted except by or with the written consent of the authority under the Act. It is a safeguard against the frivolous complaints and consequent harassment. In my opinion the consent in this case has been given by the proper authority and it is not necessary to specify the offence in the sanction. The learned counsel has relied on State of Bombay vs. Parshot-tam Kanaiyalal (9 ). In this case the objection was that the complainant was not named in the written consent and in this context their Lordships observed, - "in the first place, the reason of the rule could not suggest or imply such a condition. The rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecutions against traders. It therefore provides that the complaint should be filed, either by a named or specified authority or with the consent of such authority. To read by implication that before granting a written consent, the authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable but the further implication that the complainant must be named in the written consent does not, in our opinion, follow. " This case is no authority for the proposition that the specific offence must be mentioned In so far as the question of applying one's mind is concerned, the latest authority pointedly on the subject is Dhian Singh vs. Municipal Board, Saharanpur (10 ). In para 5 their Lordships have observed, - "under Sec. 20 of the Prevention of Food Adulteration Act, 1954, no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases. That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question. " It is not necessary in view of the Supreme Court's authoritative pronouncement to discuss Municipal Health Officer and Food Inspector, Koxhikode vs. Arthala The Estate Co. (11), No other point was pressed before me.
(3.) I must mention one circumstance that I have noticed in this case. The learned Magistrate imposed a fine of Rs. 200/- when sec. 16 (l) (f) categorically prescribes "and with fine which shall not be less than one thousand rupees". The learned Magistrate was, therefore clearly in error. The case relates to the year 1967 and the applicant is said to be a small shopkeeper therefore I did not consider it expedient to issue a notice for enhancement. In my opinion the applicant has been rightly convicted for selling adulterated coriander and his conviction calls for no interference. This revision fails and is dismissed. . ;