JETHALAL LALLUBHAI Vs. BARODA MUNICIPAL CORPORATION

JUDGEMENT

(1.) The petitioner came to be convicted under sec 161(1) (a)(i) read with sec. 7(i) of the Prevention of Food Adulteration Act 1954 (the Act) and sentenced to rigorous imprisonment for 6 months and a fine of Rs. 1000.00 with further rigorous imprisonment for 2 months in case of default by the learned Judicial Magistrate First class (Municipal) Baroda. His appeal against this order of conviction and sentence came to be dismissed. Hence this revision application.

(2.) According to the prosecution on January 17 1976 the Food Inspector visited the lodge run by the petitioner and found chillies powder lying in a tin. Therefore after complying with the necessary formalities he took sample and divided it in three parts. One of the bottles containing sample was sent to the Public Analyst and the report of the Public Analyst disclosed that the sample was adulterated. The defence of the accused that this particular chillies powder was meant for personal consumption of the petitioner-accused and not for the use in preparation of the food in the lodge did not succeed. However one of the several contentions raised before the Sessions Court was based on the nature and character of Rule 16 of the Prevention of Food Adulteration Rules 1955 (the Rules). So far as compliance with the provisions of that Rule in the facts of this case was concerned it was an agreed position and a fact found by the learned Sessions Judge that the provisions of clause (b) of Rule 16 which require folded ends of the wrapper containing the sample to be affixed by means of gum or other adhesives were not separately complied with. The learned Sessions Judge having recited agreed facts in paragraph 11 in terms stated as under:

(3.) The contention raised on behalf of the petitioner is that the provisions of Rule 16 are mandatory and that in all cases the provisions of clauses (b) and (c) thereof should be separately complied with. Therefore runs the argument notwithstanding the finding or agreed position that wax seal were affixed on the bottom and top of the bottle on the twine cover and the ends of the paper wrapper there is non-compliance with clause (b) as distinct from clause (c). It was urged that both the provisions of clauses (b) and (c) are mandatory and they in fact provide for two distinct and separate safeguards so far as the manner of packing of samples is concerned. As against this it was urged on behalf of the municipal Corporation that the provisions of Rule 16 are directory and not mandatory. On behalf of the State it was urged that the provisions of Rule 16(b) and (c) can be complied with by one process of applying wax seal because sealing wax is also an adhesive contemplated by clause (b) of Rule 16. Therefore in a given case if wax seal utilised for the purpose of clause (c) also taxes the ends of the paper wrapper contemplated to be affixed by clause (b) the provisions of both the clauses can be complied with by a single process. This contention was also urged on behalf of the Municipal Corporation.