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TMI Blog1980 (8) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ntents of the nine cups were put together and melted in the sun. These were divided into three equal parts and each part was put in a dry clean bottle. 22 drops of formal in were added in each bottle as preservative. Each bottle was then tightly fastened, tied with a thread, sealed and labelled. One bottle out of these was handed over to the respondent. One was sent to the-local health authorities. The third sample along with the memorandum in Form VII of Appendix A of the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules) was sent to the Public Analyst through Gian Chand peon, a special messenger. A copy of the memorandum in Form VII along with facsimile of the seal was separately sealed in a cover and sent through the special messenger to the Public Analyst. The Public Analyst found fat in the contents of the milk ice as 4.16 per cent against the maximum of 2 per cent prescribed in the Rules. He therefore, opined that the sample was adulterated. 2. On receipt of the result from the Public Analyst, which was communicated to the respondent, the Food Inspector filed a complaint in the Court of the Additional Chief Judicial Magistrate, Hoshiarpur. After sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 1978CriLJ925 deprived the respondent of the argument that the provisions of Rule 22 were violated by the short weight of the sample. Faced with this difficulty, Shri P. S. Mann, learned Counsel for the respondent, tried to defend the judgment of acquittal on the ground that Rule 18, which is mandatory, has been violated in this case, as the package containing the sample and the package containing the copy of the memorandum in Form VII and the specimen of the seal were not sent separately but through one person at the same time. Seeking help from the judgment of the Gujarat High Court in Mohanlal Maganlal v. State of Gujarat (1977) 2 FAC 236, he argued that the word 'separately' used in Rule 18 of the Rules means that copy of the memorandum and the specimen impression of the seal have to be sent separately and not at the same time through one and the same person. He also referred to a Division Bench judgment of this Court in Criminal Appeal No. 1203 of 1977, State of Haryana v. Mohan Lal decided on 6th of September, 1979, in which it was observed: ...but we find that the Food Inspector sent a copy of Form VII, the specimen of the seal and the sealed bottle to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des the manner of sealing of the sample sent for analysis. Rule 15 prescribes the manner in which the bottles and containers are to be labeled and addressed. Rule 16 deals with the packing and sealing of the samples. In this case we are concerned with the sending of the containers of the sample, the copy of the memorandum and the impression of the seal, which is prescribed in Rules 17 and 18. Rule 7 deals with the duties of the public analyst for examining and comparing the seals on the two packages received by him for analysis and is relevant for examination with Rules 17 and 18 in this case. These are reproduced as under: Rule 7:- Duties of Public Analyst- (1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. (2) The Public Analyst shall cause to be analysed such samples of articles of food as may be sent to him by Food Inspector or by any other person under the Act. (3) After the analysis has been completed, he shall se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused, so that the identity of the sample is ensured and that can be best achieved if the things mentioned in Rules 17 and 18 are sent separately. It is also a check on the activities of the Food Inspector in case his action is motivated against the accused. 9. The counsel for the parties are at variance as to what meanings have to be given to the word 'separately', as it occurs in Rule 18. Rules 17 and 18 of the Rules have to be read in the light of Rule 7 to know the meanings of this word. The language of Rule 17 goes to show that the container of the sample has to be sent for analysis to the Public Analyst in a sealed packet and with it is to be 'enclosed together' the memorandum in Form VII in the outer cover, Rule 18 provides for the sending of the copy of the memorandum in Form VII and facsimile of the seal, used to seal the sample and the packets in Rule 17, to the Public Analyst 'separately'. Rule 17 contains the words 'enclosed together' in reference to the articles mentioned therein and Rule 18 has the word 'separately'. In Shorter Oxford English Dictionary, Volume II, Third Edition, the word, 'separate' has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the Public Analyst at different times. This object cannot be achieved without doing violence to the language of Rule 18 or frustrating the object of the rule-making authority in prescribing this procedure, in a given case if the Food Inspector from the place of seizure despatches both the packets, though sealed separately, through the peon, who in his turn hands over those to the post office for delivery to the Public Analyst, then, in case the argument of the learned Counsel for the respondent is accepted, still there will be a breach of Rule 18, as packages have been sent on the same day and not through a separate person. I find it difficult to accept this argument, when the sealed sample container and the specimen seal sealed separately are carried to the Public Analyst by the same special messenger it cannot be presumed, unless some material is brought on the file by the accused, that there was substitution of the sample or the tampering of the seals. 10. A Division Bench of the Bombay High Court in Enayat Ali's case 1976 Cri LJ 1837 (supra) considering the same question also took the same view. In that case the facts were similar and the Food Inspector had sent the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the sealed bottle to the Chemical Analyst at one and the same time. Rule 18 of the Prevention of Food Adulteration Rules requires that the specimen of the seal should be sent separately," and declined to interfere in the order of acquittal passed by the trial Magistrate; Jaspal Singh's and Jagtar Singh's cases (supra) which were decided earlier were not brought to the notice of the Division Bench in Mohan Lal's case (supra). 13. In Mohanlal Maganlal Sindhi's case (1077) 2 FAC 236 (supra), a learned single Judge of the Gujarat High Court held: If both the food sample packets sent under Rule 17 and the specimen impression of the seal along with the memorandum sent under Rule 18 are sent with one and the same messenger, there is a danger of both being tampered with and in that event the Public Analyst will find that the seal on both the packet as well as the specimen impression tally. The mischief can be played while the messenger carries the food sample as well as the specimen impression of the seal after they are delivered to him by the Food Inspector and before they are delivered at the office of the Public Analyst. If in transit there is some mischief p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Food Laboratory. If the seal which the container bears and the specimen impression of the seal are found in one and the same packet, then any one who interferes with it will be able to successfully achieve his object because he will be able to interfere with both, both being available to him at one and the same time. That will not be the situation if the specimen impression of the seal has been sent separately either through a messenger or by registered post to the Director of the Central Food Laboratory because whoever interferes with the seal on the container will not have the specimen impression of the seal available to him for being interfered with since it must have been sent separately either through a messenger or by registered post. It is needless for us to add that whoever thinks of interfering with the seal on the container will also be able to successfully interfere with the seal on the outer cover. Now, the important and valuable safeguard which has been conferred upon the accused will be lost and will become illusory if the seal on the container and the specimen impression of the seal, both available at one and the same time, have been interfered with by so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard on the accused must be construed strictly and not liberally. We are, therefore, of the opinion that the provisions of Sub-rule (3) of Rule 4 of the Prevention of Food Adulteration Rules, 1955, in so far as they require that a specimen impression of the seal used by the Court to seal the container and the cover and a copy of the memorandum shall be sent separately to the Director are mandatory and are required to be complied with strictly." In this case, the learned Judges of the Division Bench, if I may say so, presumed too much in favour of interference by way of mischief in the sample during transit. The Court has to presume that all official acts are carried out and done in a regular and lawful manner. In spite of that the legislature and the law-making body, in the cases governed by the Act and other similar laws, where the report of the Public Analyst, Chemical Examiner and other experts is per se tendered in evidence has provided safeguards, like the manner of sealing and despatch of the incriminating articles and also for cross-checking the identity of the articles seized and sealed. So long as the acts performed by the Food Inspector and other officials are not sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckages were sent separately. Dr. J.K. Bajaj, Food Inspector, appearing as P. W. 1 stated "One of these bottles was sent to the Public Analyst, Punjab, along with memorandum in Form VII and specimen impression of the seal used through Shr Gian Chand peon, special messenger. Copy of Form VII together with seal impression was sent in a separate sealed cover through messenger to the Public Analyst". The pro forma of Form III as provided in the Rules is as under: Form III (See Rule 7(3)) Report by the Public Analyst I hereby certify that I.... Public Analyst for... duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954, received on the... a. m./p. m...day of... 19... from... a sample of... for analysis properly sealed and fastened and that I found the seal intact and unbroken. The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in condition fit for analysis. I further certify that I have/I have caused to be analysed the aforementioned sample and declare the result of my analysis to be as follows: ...and I am of the opinion on that....S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified about the separate sending of the packet containing the specimen of the seal in his evidence, which has been extracted for reference above and which was not challenged in cross-examination. This finds support from the report of the Public Analyst in Form III. It has, therefore, to be found as a fact that the container of the sample and the copy of the memorandum and the facsimile of the seal were sent separately and there is no infraction or infringement of Rule 18. 16. The respondent has been acquitted by the learned Additional Chief Judicial Magistrate on the ground that in place of 300 grams of the milk ice-cream to be taken as a sample as contained in Rule 22, the Food Inspector sent only 200 grams of sample for analysis to the Public Analyst. In the view of the learned trial Magistrate, this short weight of the sample prejudiced the respondent. In view of the observations of the Supreme Court in Alasserry Mohammad's case MANU/SC/0175/1978MANU/SC/0175/1978 : 1978CriLJ925 (supra), the view of the learned trial Magistrate cannot be upheld. In Rule 22 the last column does not contain the net weight, but provides only for the approximate weight to be sent. The Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 to the Rules as under: A. 11.02.09- Milk Ices or Milk Lollies mean the frozen product obtained from milk, skimmed milk or milk products with or without the addition of cane sugar, eggs, fruits, fruit juices, nuts, chocolate, edible flavours and permitted food colours. It may contain permitted stabilizers not exceeding 0.5 per cent of the product. The mixture shall be suitably heat-treated before freezing. The product shall contain not more than 2.0 per cent milk fat, not less than 2.5 per cent proteins and not less than 20.0 per cent total solids. Exhibit P.A. is the form of intimation for the purpose of taking sample under Rule 12 in Form VI, which was served by the Food Inspector on the respondent. It was prepared at the time of taking of the sample. It is signed by Bhagwan Dass respondent in English, and it reads: x x x x x Details of food 9 cups of golden milk ices each weighing 90 grams (3 of them put into one bottle after melting in the sun). Alleged to contain the following articles in the ratio: Cow's milk 10 Kg. Water 2 Kg. Skimmed milk powder 1 Kg. Sugar 2 Kg. 600 grams G.M.S. & Alginate 110 grams Green Apple colour- Traces (Bush) Received Notice Sd/- J. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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