I. S. ISRANI, J. - (1.) THIS criminal appeal under Section 378 (i) and (iii) Cr. P. C. has been filed against the judgment passed by learned Sessions Judge, Sawai Madhopur, dated October 11, 1979 in case No. 197/79.
(2.) BRIEFLY stated the facts of the case are that on January 10, 1976, Food Inspector, Sawaimadhopur, visited the shop of the respondent, at Bajaria, district Sawaimadhopur, and suspected adulteration in Taramira oil, contained in tin container, kept at the shop of the accused-respondent. He purchased 375 gms. of the oil on payment in presence of independent witnesses under requisite documents and members as per rules The sample was sent for analysis to C lief Public Analyst, Jaipur, whose report showed it to be adulterated. After obtaining the necessary sanction, a complaint under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act 1954) was filed in the court of Chief Jud, Magistrate, Sawaimadhopur. The accused respondent denied the charge and claimed trial. After examining the evidence of both parties and hearing arguments, the learned Chief Judicial Magistrate held the respondent to be guilty of the charges under Section 7/16 of the Act, 1954 and sentenced him to simple imprisonment of six month and to pay a fine of Rs. 1000/ -. The accused respondent filed an appeal against this decision, which was heard by learned Sessions Judge Sawaimadhopur, who held that provisions of Section II of the Act 1954 and Rules framed there under i. e. 7. 17 and 18 were not complied with nor the ownership and possession of oil in question were proved by the prosecution. It was further held that oil, from which the sample was taken was not for sale and he acquitted the accused respondent of the offence charged with. None has appeared on behalf of the State or on behalf of the accused respondent. As the Lawyers are absent since about more than one month, it is not possible to appoint any Amicus Curiae to represent the accused respondent. I have gone through the judgment under appeal as also that of the trial court, memo of appeal filed on behalf of the State and evidence and documents on record. The main grounds urged on behalf of the State are that the first appellate court has erred in holding that the oil was not for sale in view of the fact that the oil was purchased by the Food Inspector on price and receipt for the same was also given to the accused respondent. The second ground is that the Rules No. 7, 17 and 18 of the P. F. A, Rules 1955 (hereinafter referred to as Rules 1955), have been fully complied with. It is urged that there is clear deposition of Food Inspector P. W. 1, which amply proves the compliance of the above rules. The third ground raised is that the first appellate court has grossly erred in law by holding that the provisions of Section 11 of the Act were mandatory and that the same was not complied with. Taking the first ground regarding the mandatory nature of compliance of Section 11 of the Act, 1954, a bare reading of the Section 11 shows that a procedure has been laid down in the Act, which has to be followed by the Food Inspector. The Food Inspector is required to take several steps in accordance with the provisions of this Section at the time of taking the sample. Apart from other provisions, he is also required to give in writing a notice of his intention to take the sample of the article and of his intention to get the samples, so taken analyses etc. If such person refuses to sign or put his thumb-impression, the food inspector shall call upon one or more witnesses and take signatures or thumb-impression in lieu of the signature or thumb impression of such person. The detailed description of the steps mentioned in Section 11 of the Act clearly indicates that these are the safe guards, provided by the legislature at the time, the sample is taken by the food inspector to ensure that no injustice is caused to the person from whose shop any sample of a food article is taken by the inspector. In the present case the food inspector in his statement has stated that he took the oil from the respondent in three separate bottles for sending them for analysis. However, the requirement of Section 11 is that the food inspector shall take the sample and divide it there and then in three parts and mark and seal each part in such a manner as its nature may permit and take the signature or thumb impression of the person from whom the sample has been taken. This Section clearly lays down that the sample of the food article taken by the food inspector should be divided into three parts there and then and sealed in the containers as provided in this Section and the R. ules 1955. The food inspector did not take one sample but it may be said took three different samples in three different bottles and after sealing the same, sent one of the samples for analysis to the Chief Public Analyst. It is evident that in doing so the food inspector did not comply with the mandatory provisions of sub-clause (b) of sub-sec. (1) of Sec. 11 of the Act. The first appellate court, therefore, rightly held that the provisions of Section 11 of the Act had not been complied with. The next contention raised on behalf of the State is that Rule 7, 17 & 18 of the Rules, 1955, have been fully complied with. P. W. 1 Food-Inspector has stated in his statement that out of the three bottles, he sent one bottle alongwith form No. VII to Chief Public Analyst, Jaipur, for analysis. He has further stated that one copy of form No. VII was sent separately by post. However, no postal receipt has been produced to prove that the extra copy of form No. VII was sent to the Chief Public Analyst as stated by this witness Rules 17 and 18 of the Rules 1955, lay down what the inspector is required to do while sending the sample to the public-analyst. The requirement of Rule 17 is that the container of the sample should be sent to the public analyst by registered post or otherwise as laid down in this rule in the sealed packet to ether with a memorandum in Form No. VII which has to be addressed to the Public Analyst. The requirement of Rule 18 is that a copy of the memorandum is form VII alongwith specimen impression of the seal by which the sample packet was sealed, is required to be sent to the public analyst separately this can be done either by registered post or getting it delivered to the public analyst in any other way as laid down in this rule. When Rule 7 is also read alongwith Rules 17, and 18, it is evident that the outer-cover in which the container of the sample is sent has also to be sealed because the checking of these seals on the outer cover can only be done when the memorandum and the specimen of the seal are received by the public analyst separately also to enable him to compare the seals. The public analyst has to report that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the food inspector. From the evident of the food inspector P. W. 1, it can be seen that the compliance of the Rules No. 7, 17 and 18, was not made in as much as he does not state in his statement any where that the container of the sample was kept in an outer cover alongwith memorandum and form No. VII and thereafter the outer cover was also sealed and addressed to the public analyst. Reliance in this respect was placed by the respondent on the cases of State of Rajasthan Vs. Ram Sahai (1) and State of Rajasthan Vs. Banshilal (2 ). It may also be mentioned that in the report of the Chief Public Analyst Ex. P. 6. there is no mention of the fact that whether he had received container of sample alongwith memorandum and form No VIE kept in an outer cover, duly sealed and he had also received separate copy of memorandum of form No. VII by post also. In these circumstances it is evident that the compliance of Section 7, 17 & 18 which is mandatory was not made.
(3.) THE next ground raised on behalf of the State is that it has been fully proved from statement of P. W. l food inspector that the oil from which sample was taken was kept on the shop by the respondent for sale. This witness in his statement has stated that he did not see only other person, purchasing the oil from which the sample was taken by him. P. W. 2 Prahlad has stated in his statement that the respondent does business of selling grass; oil etc. He does not say that the oil from which the sample was taken by the food inspector was kept for the purposes of sale on the shop by the respondent. Apart from this, P. W. 5 Tapan Dass has stated that the oil from which the sample was taken by the food inspector was not kept on the shop by the respondent for sale and that the accused respondent had told to the food inspector that this oil was not kept for the sale. It may be mentioned that this witness was not declared hostile. Keeping in view the evidence diseased above, it can be said that the prosecution has not been able to prove that the oil from which the sample was taken was meant for sale. I, therefore, do not find any force in this appeal, which is hereby dismissed. The respondent is on bail, he need not surrender to his bail bonds. .;