SHRIMAL, J - (1.) THIS revision petition is directed against the judgment of the learned Sessions Judge, Udaipur, dated March 7, 1972, affirming the judgment dated November 4, 1969, of the learned Sub-divisional Magistrate, Salumber, whereby he convicted the accused-petitioner under S. 7/16, of the Prevention of Food Adulteration Act, No. XXXVII of 1954 (hereinafter referred to as 'the Act'), and sentenced him to six months' rigorous imprisonment and a fine of Rs 900/-; in default of the payment of fine to further undergo six months' rigorous imprisonment.
(2.) THE prosecution story, in a nutshell, is that on February 16, 1968 P. W. 1 Bhanwarlal, Food Inspector inspected and checked the shop of the accused-petitioner. Having disclosed his identity to the accused-petitioner the Inspector served him with a notice in Form No. VI (Ex. P. 1) and purchased 375 Grams of mustard oil for Rs. 187 paisa. THE oil was divided into three parts. Each part has then filled in a bottle All the three bottles were sealed in the presence of the petitioner. A memorandum containing the details of the action taken by the Food Inspector was prepared and has been marked Ex. P. 2. It bears the signatures of the Food Inspector P. W. 1 Bhanwar Lal, as those of the two attesting witnesses Devilal and Sohanlal. It also bears the signatures of the accused-petitioner Champalal Jain. One sample battle was given to the accused petitioner and the other was sent to the Public Analyst at Udaipur along with a specimen of the seal impression. THE form containing the specimen seal is Ex. P. 3. THE third bottle was retained by the Food Inspector. THE sealed bottle was received by the Public Analyst on February 20, 1968. THE Public Analyst received the bottle for analysis properly sealed and fastened and the seal was noticed by him to be in tact, unbroken, and similar to the seal impression given on the memorandum. An endorsement to that effect has been made by the Public Analyst in Ex. P. 4. He analysed the contents of the bottle and declared the result as under : - "this oil is clear and free from rancidity, foreign matter, added colouring substance and mineral oil; B. R Reading at 40°c . . . . . . 58. 0 Lodine value . . . . . . 96. 5 Saponification value . . . . . . 170. 2 Free fatty acids as oleic acid . . . . . . 4.5% Unsaponifiable matter . . . . . . . . . 0. 54 Fellurs Test (Turbidity Temperature) . . . . . . 24. 1°c Sesame oil Test . . . . . . Positive Argemone Oil Test . . . . . . Negative In the opinion of the Public Analyst the sample of the oil was adulterated, as it did not conform to standard of purity prescribed by the Prevention of Food Adulteration Rules, 1955 (hereinafter referred as 'the Rules' ). The free fatty acid calculated as oleie was 4. 5%, the prescribed maximum for that oil being 3%. The Food Inspector filed a complaint in the Court of Sub divisional Magistrate, Salumber against the accused-petitioner for his prosecution under sec. 7/16 of the Act. The accused denied his complicity in the crime. The prosecution in support of their case examined two witnesses P. W. 1 Bhanwarlal, the Food Inspector, and P. W. 2 Sohanlal. The accused in his statement recorded under S. 342 Cr. P. C. stated that the oil from which the sample was purchased by the Food Inspector was not kept on his shop for sale, it was for his personal use and he had brought it from his kitchen and had given the same to the Food Inspector. He examined two witnesses viz D. W. 1 Nihalchand and D. W. 2 Gotamlal. The trial court, relying upon the testimony of P. W. 1 Bhanwar Lal, P. W. 2 Sohanlal and Ex P. 2 sought support of the prosecution case from the statement of D. W. 2 Gotamlal who in his cross-examination stated that at times Champalal, accused, used to bring the goods from his kitchen and sell it to the customers. The trial court held that the mustard oil sold by the accused petitioner to the Food Inspector was adulterated and the same was kept for sale on his shop. The learned Magistrate found the accused petitioner guilty of the offence punishable under sec. 7/16 of the Act and sentenced him as mentioned above. The aggrieved accused took an appeal against the above verdict in the Court of Sessions Judge, Udaipur, who by his judgment dated March 7, 1972, upheld the conviction and sentence awarded by the trial court. Dissatisfied with the above judgment, Champalal, the accused-petitioner has preferred this revision petition. The learned counsel for the accused-petitioner has pleaded that whereas the sample of the oil was taken on February 16, 1968, the Public Analyst analysed it as late as February 27, 1968. The compliance of Rules 14 and 16 of the Rules was not made by the Food Inspector P. W. 1 Bhanwarlal inasmuch as he, in his statement, recorded by the trial court, did not state that the sample of mustard oil was filled in clean dry battles and that the stoppers to the bottles were securely fastened. It has also not been stated that the bottles were wrapped in thick papers and the ends of the papers were nearly folded and affixed by means of gum or some other adhesive, and that they were tied with thread in the manner provided by rule 16 of the Rules. The Public Analyst found that the free fatty acid calculated as oleic were 4. 5%, the prescribed maximum for that oil being only 3%. The microscopic increase in the free fatty acid contents should be attiibuted to exposure of sample to light and air during the interval of time between the talking of the sample and its analysis. Moreover, edible oils, are liable to increase in free fatty acid. The learned counsel urged that owing to the above mentioned circumstances the report of the Public Analyst Ex. P. 4 cannot be taken as a sure indication of the acid contents of the oil at the time of taking the sample. In any case a reasonable doubt does arise regarding the acid contents of the oil at the time of taking the sample. In support of the above contention, reliance was placed on In Re K. Chandran (1) I have given my anxious consideration to the arguments advanced by the learned counsel for the accused-petitioner, and do not feel persuaded to agree with his contentions Agreed that P. W. 1 Bhanwarlal, Food Inspector, did not narrate all the details regarding the manner of packing, sealing and sending of the sample for analysis. But a close reading of the statement of P. W. 1 Bhanwarlal along with the report of the Public Analyst Ex. P. 4 reveals that the bottles in which the sample of the mustard oil was filled in were sealed on the spot in the presence of the Motbirs. The Public Analyst received the sample bottle properly sealed and fastened. He noticed that the seals were in tact and unbroken, and similar to the seal impression on the memor-rundum Ex P. 3 received by him separately. Though P. W. 1 Bhanwarlal, Food Inspector, was cross-examined at a considerable length, but the whole of the cross-examination was directed towards showing that the mustard oil out of which the sample was taken by the Food Inspector was not for sale, but only for the personal consumption of the vendor (accused-petitioner ). No question was put to him to suggest that the petitioner warned to raise a controversy regarding the dryness of the bottles in which the sample of the mustard oil was filled in. It was also not suggested in cross examination that the bottles containing the sample of the mustard oil were not properly wrapped, tied with thread and that they were exposed to air and sun. It was for the accused-petitioner to prove that the packing was inadequate or so defective that it could not have prevented light and air affecting the Simple of oil contained in the bottles. The Food Inspector while packing and sealing the sample is required under Rue 14 to take the sample in a dry and clean container and close it sufficiently tight. Under Rule 14, he is further required to fasten the stopper, seal and pack it. He is also required to wrap it in thick paper and comply with the directions given in Rule 16. The Food Inspector P. W. 1 Bhanwarlal, while taking the sample, was performing an official act and it can be safely presumed under illustration (e) to Sec. 114 of the Evidence Act that the Food Inspector performed the duties regularly and that he acted in accordance with the rules. Reference may be made to Kassim Kunju Pookurju vs. K. K. Ramakrishna Pillai (2 ). In this case their Lordships of the Supreme Court repelling the argument advanced by the learned counsel for the petitioner of that case regarding noncompliance of rules 7 and 18 of the rules observed as under : - "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 not been proved that the specimen impression of the seal used bad 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 s«nt to the public analyst separately by post. The High Court was not at all impressed with the contention based on Rule 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 miskly asafoctida marked No (J. 2/65 for analysis, properly sealed and packed and that he had found the seal in tact and unbroken. The contention which was pressed and which has been reiterated before us is that it is no where stated in Ex. P. 9 that the Public Analyst hid compared that 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 Rule 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 on the container. We do not find any error in the decision of the High Court on the above point. " The presumption which arises under illustration (e) of sec. 114 of the Evidence Act is rebuttable, but the accused petitioner has failed to do it. Neither in cross-examination of the prosecution witnesses nor in arguments before the trial court or the appellate court it was contended that the bottles containing the sample were not properly packed or fastened or that the sample bottle sent to the Public Analyst for analysis was exposed to air and sun Now it is too late in the day for him to raise this controversy. If the accused really wanted to rely upon the defect of picking of the sample bottle, he ought to have produced his own bottle, and cross-examined the Food Inspector P. W. 1 Bhanwar Lal regarding the defects in packing. Since he did nothing of the sort, at the right time, it only means that it is his after-thought.
(3.) THE proper packing of bottles containing the sample of mustard oil is a question of fact, as also of accepting the evidence furnished by the prosecution regarding proper compliance of the Rules But the jurisdiction of this Court in criminal revision petitions is severely restricted, and it cannot embark upon re-appreciation of the evidence. THE learned counsel for the accused petitioner has failed to point out any cogent reason to hold that the compliance of Rules 14 and 16 was not made in the case on hand. As regards delay in analysing the sample, it would suffice to say that there is nothing on the record to hold that the bottle containing the sample of mustard oil was exposed to sun-light or air and as such it cannot be held that the increase in free fatty acid in the sample of the mustard oil was due to delay in analysing the sample. It will not be out of place to mention here that if the petitioner really wanted to rely upon the effect of delay in examination of the sample by the Public Analyst, he ought to have made an application in the trial court with a view to summoning the Public Analyst for cross-examination, and confronted him with the opinions of the various authorities on the subject to support his case. Without his having done it, the report of the Public Analyst cannot be discarded, and more so, because the passages cited later were never brought to his notice. Even otherwise, they cannot be relied on, since the case on hand is not covered therein. Acceptance of the contention of the learned counsel for the accused-petitioner regarding the possibility of the bottle containing the sample being exposed to sun light and air leading to the increase of free fatty acid in the absence of proper evidence on the record will amount to chasing bare possibilities of doubt. Neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can without danger to the ad ministration of justice be the foun dation for discarding thereport of the Public Analys. The case In Re K. Chandran (1) relied upon by the learned counsel for the accused petitioner is of no avail to the petitioner. In that case the Division Bench of the Madras High Court repelling a similar argument as advanced before me observed as under : - "it cannot, therefore, be stated that the keeping up of oil for any particular period of time would, by itself be subject to determination in the sense that its free fatty content is increased. Such an increase of fatty content will come about only if there be an exposure of the oil to light and air. If, therefore, at the time of taking the simples, the oil has been perfectly packed, there would be little chance of such decomposition, of the oil in the sample bot;le. " On the proved facts of the case on hand, I find no reason to reverse the finding arrived at by the two courts below and therefore hold on the basis of cogent and reliable evidence that the sample of the mustard oil purchased by the Food Inspector P. W. 1 Bhanwar Lal from the accused-petitioner on February 16, 1968 was adulterated. ;