- (1.) On September 22, 1983 Mani Shankar, Food Inspector (P.W. 1) purchased sample 'Gulab Jamuns' from the petitioner at Chatri Chauraha, Deoli District Tonk for analysis. On analysis, the Public Analyst reported that the sample 'Gulab Jamuns' was adulterated for the reason of its containing non-permitted coal tar metallic yellow colour. The learned Chief Judicial Magistrate, Tonk, on the complaint filed by the Food Inspector, tried the petitioner for the offence under S. 7/16 of the Prevention of Food Adulteration Act, 1954 (the Act), and found him guilty thereof. Accordingly he convicted the petitioner of the said offence and sentenced him to six months rigorous imprisonment plus Rs. 1,000/- fine. On appeal, the learned Sessions Judge, Tonk, confirmed the conviction and sentence and dismissed petitioner's appeal. Hence this petition under S. 397, Cr. P.C. before this Court.
(2.) Mr. Narendra Jain, the learned counsel for the petitioner urged that since the mandatory provisions contained in S. 11(3) of the Act read with Rule 17 of the Prevention of Adulteration Rules, 1955 (the Rules) were not strictly complied with in as much as the sample was taken on 22-9-83 but the same was sent to Public Analyst on 24-9-1983, the trial of the petitioner stood vitiated and he was entitled to acquittal on this ground alone. A large number of case law from various High Courts and in main the decision of Apex Court in the case of State of Maharashtra v. Rajkaran, 1987 (Suppl) SCC 183, and of this Court in the case of Rajkumar v. State of Rajasthan, (1988) 1 Raj LW 187, were pressed in service in support of the above contention. I find it difficult to accept the contention of Mr. Jain. Section 11(3) and Rule 17 read as under :- "Section 11(3) : When a sample of any article of food (or adulterant) is taken under sub-sec. (2) of S. 10, (the Food Inspector shall, by the immediately succeeding working day, send a sample of the food or adulterant or both, as the case may be), in accordance with the rules prescribed for sampling to the Public Analyst for the local area concerned. Rule 17 : The containers of the samples shall be despatched in the following manner, namely : (a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the Public Analyst immediately but not later than the succeeding working day by any suitable means. (b) The sealed containers of the remaining two parts of the sample and two copies of the memoranda in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means. Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form VII shall contain the following additional information namely : (a) Grade. (b) Agmark label No./Batch No. (c) Name of packing station."
(3.) A bare reading of the above provisions tells that they cast two obligations on the Food Inspector, namely, (i) to send one part of the sample to the Public Analyst and (ii) to send the same immediately but not later than the succeeding working day. Sending of one of the parts of the samples for analysis can enable the Public Analyst to furnish the evidence of adulteration in the food article which is to lay down the very foundation of the prosecution of the offender. If this obligation is not discharged no foundation for prosecution may be laid. Therefore, noncompliance of this part of the obligation or duty by the Food Inspector would go to the very root of the case. This part of the provisions is, therefore, mandatory in character and non-compliance thereof would, in fact, result in non-prosecution or no trial of the offender what to speak of vitiating the trial.;