V. S. DAVE, J. - (1.) THIS is a revision petition under S. 397 read with S. 401 Cr. P. C against the judgment, dated July 12, 1988, passed by Addl. Sessions Judge, Karauli in an appeal against the judgment of Addl. Judicial Magistrate, Karauli who convicted the petitioner for offence under S. 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") and sentenced to six months' simple imprisonment and a fine of Rs. 1000/-, in default of payment of fine to further undergo six months' simple imprisonment.
(2.) BRIEF facts giving rise to this petition are that a complaint was filed by the Food Inspector, Shri Govind Prasad Verma, that he inspected the premises of M/s Tarachand Narendra Kumar, Bara Bazar, Masalpur on September 30, 1983. and obtained a sample of mustard oil, Vanaspati Dal etc. and sent the articles for analysis to the Public Analyst. On a report from the Public Analyst he found that the mustard oil did not conform to the prescribed standard of purity and hence adulterated. After obtaining necessary sanction a complaint was filed before the Addl. Chief Judicial Magistrate, Karauli who tried the accused. The accused-petitioner appeared in the court and moved an application on April 7, 1988 purported to be one under S. 13 (2) of the Act. Seeking reexamination of the sample at Central Food Laboratory. This application was allowed and the sample was ordered to be sent to Central Food Laboratory, Gaziabad. This report also indicated adulteration and the learned courts below relying on the same convicted and sentenced the accused-petitioner as indicated above. A short but important point has been raised in this revision petition as to whether the prosecution has established that the documents referred to in Rule 18 of the Prevention of Food Adulteration Rules, 1955 have been despatched-separately as contemplated by law. Rule 18 of the Rules runs as under:- "memorandum and impression of seal to be sent separately A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day". According to the aforesaid Rule copy of memorandum and specimen impression of the seal used to seal the packet shall be sent by registered post. It is submitted by the learned counsel for the petitioner that in the instant case no evidence has been produced about the mode of despatch particularly sending the documents separately by registered post. I have perused the entire record as well as the order sheets drawn by the trial court. I find from the order sheet of the Magistrate that he proceeded in the right direction and directed the office to comply with the order that the sample and everything has reached the Central Food Laboratory as is also apparent from the report of the Director. Central Food Laboratory but there is missing link and that is, whether the order of the Magistrate has been complied by his office in letter and spirit, i. e. , the documents have been despatched separately by registered post. Had the entire thing mentioned in the report of the Central Food Laboratory would have also indicated what the learned Magistrate said about the compliance of Rule in his order, then possibly this court could have drawn an inference particularly that the official act has been performed in the manner required but neither the report says that it has been sent by registered post nor that any postal receipt is there on the record of the file of the learned Magistrate. Had it been sent by registered post then even if there is no acknowledgement due atleast receipt about the despatch should have been on the record or its number should have been mentioned in the margin of the file. In Shiv Bhagwan Vs. The State (1) it has been held as under: "the prosecution has led no other evidence to show that the specimen impression of the seal was sent separately by the Food Inspector to the Public Analyst. In this state of affairs, the prosecution case cannot be said to have been proved to the hilt against the petitioner because non-compliance with the provisions of Rule 18 of the Rules tells heavily upon the evidentiary value of the report of the Public Analyst and no conviction can safely be based on such an evidence". Their Lordships of the Supreme Court in State of Maharastra vs. Raj Karan (2) have held that the prosecution version of despatch by registered post is not acceptable in the absence of postal receipt. As I have mentioned above there is nothing to indicate that the order of the learned Magistrate was implemented properly. Even if it might have been complied with atleast prosecution has miserably failed to get it produced on the record. It is equally a negligence of the offence of the learned Magistrate that if it was despatched by registered post then why the receipt has not been placed on the record ? Whatever may be the position, the fact is that postal receipt is not on the record. There is no mention of the fact of receipt by registered post in the report of Central Food Laboratory. In this view of the matter the case is fully covered by the decision of their Lordships quoted above. As a result of the aforesaid discussion this revision petition is allowed. Conviction and sentence of the petitioner is set aside. The petitioner is in jail and he shall be released forthwith if not required in any other case. .;