NATHI LAL Vs. STATE

JUDGEMENT

(1.) THE applicant has been convicted under Section -7/16 of the Prevention of Food Adulteration Act and sentenced to six months rigorous imprisonment and a fine of Rs. 1000/- by the Chief Judicial Magistrate, Mathura. His conviction and sentence has been maintained in appeal by the Sessions Judge, Mathura. Hence this revision. According to the prosecution case, the Food Inspector purchased 100 grams of Ice candy from the ascused applicant on March 28, 1977 at 9 a.m. He heated ice candy in a metalic vessel (Pital Ka Bartan) and having mixed formaline therein he filled it in three bottles and sealed the same. One of these bottles was sent for analysis to the Public Analyst whose report disclosed that the sample was coloured with an unpermit-ted coaltar dye, namely Metanil Yellow, After obtaining sanction the applicant has been prosecuted and convicted as above. I have heard learned counsel for the applicant as well as counsel for the State. I have also perused the impugned orders and the record of the case. THE trial in the instant case, was unfortunately a summary trial as such, the Magistrate has merely recorded the substance of the statements of the witnesses. Counsel for the applicant has argued that Rule 14 framed under the Prevention of Food Adulteration Act with regard to the taking of the samples for analysis is a mandatory rule which has been framed, to ensure that the sample taken from the accused, is sent to the Public Analyst in the same condition in which it is taken. Rule 14 reads as follows:- "Manner of sending samples, for analysis: Samples of food for the purpose of analysis shall be taken in clean bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed." This rule has been so rigidly framed in order to ensure that the sample in question is not affected due to any external causes, but remains intact in the same condition in which it is taken. As a matter of fact formaline is also added to the sample so that its quality may be preserved and may not be affected by any deterioration due to passage of time. THE rule, casts a mandatory duty upon the Food Inspector to take the sample in clean dry bottles or jars or other suitable containers. In the instant case, it appears from the summary of evidence recorded that the sample of ice candy purchased from the accused applicant was not put directly in clean dry bottles, jars or suitable containers but was subjected to a heating process in, a metallic 'vessel.' Perhaps this was done because the container in the possession of the food Inspector was not suitable for receiving the sample in its existing condition. May be the mouth of the container was too small and he found it impossible to put the solid ice candy therein, He, therefore, thought it advisable to make the ice candy into liquid form so that he could pour it into the -container. To achieve this object he appears to have adopted a rather crude form of heating the ice candy in a metallic vessel, and then pouring it in three separate bottles. In the summary of evidence recorded by the Magistrate, there is nothing 10 indicate whether the metallic vessel in which the candy was heated was absolutely clean and free from any blemish which was likely to affect the original nature or colour of the sample taken. In his statement under Section 313, Cr.P.C. the accused, has very specifically mentioned that the "ice candy was white in colour of which the sample was taken by the Food Inspector. In the receipt Ex. Ka. 2 which evidenced the purchase of the ice candy, there is no mention that the: sample was yellow in colour. I fail to understand why the Food Inspector would have omitted to mention in the receipt yellow ice candy. If as a matter of fact that was the colour of the sample taken by the Food Inspector he could very well doubt that the yellow colour was unpermitted dye, but the fact that it was yellow could not be ignored by him and should have been mentioned in the receipt itself. THE summary of evidence, recorded in this case is rather unsatisfactory. It is true that the amended law permits a summary trial in food adulteration cases but in my opinion resort to such a procedure should not ordinarily be taken. Offends under the .Prevention of Food Adulteration Act are serious social crimes. Law has gone to the extent of inflicting punishment of imprisonment for life in such offences. Considering the serious nature of the offence and the punishment which is likely to be imposed there under, a true and correct verbatim record of: the statements appears to be essential to do justice to the delinquent citizen. THEre, is nothing in these rules which permit; a Food Inspector, to treat the sample taken by him either by process before filling the same in suitable containers. It is the duty of the department concerned to provide suitable containers for taking samples of all nature. Serial No. AO 7.04 of Appendix B defines ice candy. THEre under, ice candy means the frozen ice produce which may contain the permitted flavours and colours, sugar, syrup, fruit..........it shall not contain any artificial sweetener. It is, thus, clear that when this Appendix contemplates the taking of sample of frozen ice, a corresponding duty is, therefore, cast upon the Govt. department concerned to provide suitable containers for receiving these sample frozen ice. Absence of such container afford no justification at all for taking the sample end meddling with it according to the whim of the Food Inspector by reducing it to a liquid form for purposes of filling the sample in bottles. In my opinion, the procedure adopted by the Food Inspector in the instan case is highly unsatisfactory and assures no guarantee that the sample of ice candy purchased from the accused-applicant remained in the some condition in which it was taken from, him before being sent for analysis to the Public Analyst. In this view of the matter the report of the Public Analyst completely pales into insignificance and cannot be relied upon for holding the applicant guilty of the offence for which he has been charged. For the reasons given above this revision application is here by allowed. THE conviction of the applicant for the offence under Section 7/16 of the Prevention of Food Adulteration Act is set aside as also the sentence there under. THE applicant is on bail. He need not surrender. His bail bonds are hereby discharged. THE fine if already deposited shall be refunded to him A copy of this judgment shall be sent to the Chief Secretary U.P. Government for his information.