BELGAUM BOROUGH MUNICIPALITY Vs. SHRIDHAR SHANKAR KUNDRI

JUDGEMENT

(1.) The respondents were prosecuted for an offence punishable under Section 16(1)(A)(I) read with Section 7 of the Prevention of Food Adulteration Act on the allegation that on 31-12-1964 at about 2 p.m. they were found to have stored adulterated safflower oil (Kusumba) in their shop in house No. 655 at Raviwar Peth, Belgaum and that the first respondent sold and that the second respondent caused to be sold 360 milli-litres of that adulterated safflower oil to the Food Inspector Sri Mendoza, in the Court of the Judicial Magistrate. First Class, Belgaum City. In answer to the charged framed under Section 7 of the Prevention of Food Adulteration Act both the Respondents stated that they had not committed the offence. The Prosecutor led evidence to prove that the first respondent sold safflower oil to the Food Inspector of Belgaum City on 31-12-1964 and that the second respondent caused the same to be sold. The Food Inspector who purchased 360 milli litres of safflower oil from the first respondent in the presence of the second respondent who is the owner of the shop; that he divided the oil into three equal portions and put them into three empty clean bottles in the presence of the respondents and sealed them. He also gave evidence to the effect that he intimated the respondents that he was sending the sample oil to the Public Analyst since it was adulterated and gave on of the bottles which had been sealed to the first respondent and obtained a receipt from him. he further gave evidence to the effect that he sent the other sealed bottle to the Public Analyst and kept back the other one with him.He subsequently produced the bottle containing the sample oil which was with him before the Court. He also stated that he sent the sample seals to the Public Analyst and that the certificate issued by the Public Analyst indicated that the oil had been adulterated. Mr. Sadre, who presented the complaint also gave evidence as P. W. 2 in the case. He stated that he received the report of the Food Inspector and also the Public Analyst's certificate and was convinced that the safflower oil that was sold by the respondents to the Food Inspector on 31-12-1964 was adulterated and it was necessary that the respondents should be prosecuted and thereafter filed a complaint. The respondents entered upon their defence but did not examine any witness on their behalf. On the materials placed on record, the learned Magistrate came to the conclusion that the prosecution had satisfactorily established by convincing evidence that the respondents sold safflower oil to P. W. 1 Mendoza on 31-12-1964 and that the said sample oil was adulterated. But the learned Magistrate held that since there was an infringement of Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act which are mandatory, the prosecution had failed to establish the charge against the respondents beyond all reasonable doubt and he accordingly acquitted the respondents. It is the correctness and legality of this judgment of the learned Magistrate that is challenged in this appeal which is filed under sub-section (3) of Section 417 of the Code of Criminal Procedure.

(2.) It is urged by Mr. Malimath the learned counsel for the appellant that the view of the learned Magistrate that there was non-compliance of the mandatory provisions of the Rules to wit Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act is clearly erroneous. He contends that the Food Inspector had given evidence to the effect that he sent the sample seals with a memorandum to the Public Analyst along with the sealed bottle and that the evidence had not been challenged; that being so, the learned Magistrate was not at all justified in holding that because he had not specifically stated that he sent the sample seals along with the memorandum 'separately by post' to the Public Analyst, Rule 7 and Rule 18 of the Rules frame under the Prevention of Food Adulteration Act have been infringed. To appreciate this argument, it is necessary to quote the relevant rules framed under the Prevention of Food Adulteration Act, Rule 18 reads thus: "A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by post." Rule 7 reads thus:

(3.) Mr. Malimath contended that another Bench of this Court has taken a contrary view in Laxman Sitaram Pai v. State of Mysore, 1966 (1) Mys. LJ 569 : (Air 1967) Mys 33) and in fact exactly in similar situation. He urged that in somewhat similar state of evidence that is now before us, Kalagate J. had held that the certificate issued by the Public Analyst was valid and could be acted upon. He, therefore, contended that we should accept the evidence of the Food Inspector given on oath and which is not seriously challenged in his cross-examination and hold that he must have sent the sample seals along with the memorandum by registered post separately to the public Analyst for purposes of comparison and the seals must have been compared by the Public Analyst. We are clearly of the opinion that Kalagate J. did not lay down any such proposition of law in the case referred to above. If it is construed to lay down any such proposition of law, we have no hesitation to say that it is wrong. The interpretation of Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act are mandatory and the non-compliance of those Rules affects the evidentiary value of the certificate and in the absence of extraneous evidence the conviction is sure to be vitiated.