ADMINISTRATOR SILIGURI MUNICIPALITY Vs. HIRALAL GOALA

JUDGEMENT

(1.) THE Administrator, siliguri Municipality, prosecuted the opposite party under section 16 (1) (a)of the Prevention of Food Adulteration act, 1954, (hereinafter called "the Act")for violation of section 7 (i) of the Act.

(2.) THE case of the complainant was that the Food Inspector of the municipality saw the accused carrying two cans of milk for sale on the carrier of his bicycle on September 10, 1968, at about 8. 30 a. m. He stopped him and intimated the accused-opposite party that he would take samples from the milk of his cans. He gave the opposite party a notice in writing under section 11 (i) (a), took sample of milk, separated that sample into three parts, added 40% formalin as preservative and after sealing, labelling and fastening all the three parts sent one part to the Public Analyst for analysis. He delivered one of the three parts of the sample to the opposite party. The Analyst reported on 27 september 1968, that the sample was adulterated. A complaint was lodged before the Magistrate for his prosecution on 19, October 1968. After trial, the learned Magistrate found the opposite party guilty under section 16 (i) (a) read with section 7 (i) of the Act and had sentenced him to suffer rigorous imprisonment for one day and to pay a fine of Rs. 100/- in default to suffer rigorous imprisonment for an another month. The Municipality obtained this rule under section 439 read with section 561a of the Code of Criminal Procedure for enhancement of sentence on the ground, that the minimum sentence, as provided in the section 16 (1), had not been given.

(3.) AT the hearing of the Rule, the opposite party challenged the conviction as illegal under sub-section (6) of section 439 of the Code of Criminal procedure. He submits that the conviction has been vitiated for non-observance of the mandatory provisions of rules 7 and 18 of the Prevention of Food adulteration Rules, 1955. Sub-section (3) of section 11 of the Act provides that when a sample of any article of food is taken under sub-section (i) of section 10, the food inspector shall send a sample of it in accordance with the rules prescribed for sampling to the public analyst for the local area concerned. Rule 14 of the Prevention of food Adulteration Rules, 1955, to be hereafter called the Rules, prescribes the "manner of sending samples for analysis". Rule 15 provides the manner of labelling and addressing the containers. Rule 16 deals with manner of packing and sealing the samples. Rule 17 prescribes that the container of sample for analysis shall be sent to the public analyst enclosed together with a memorandum in Form VII in an outer cover addressed to the public analyst, rule 18 provides that 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 registered post or delivered to him or to any person authorised by him. The duties of the Public Analyst, as laid down in Rule 7, are that on receipt of a package containing a sample for analysis from a Food Inspector the public Analyst shall compare the seals on the container and the cuter cover with specimen impression received and shall note the condition of the seals thereon. Sub-Rule (3) of Rule 7, substituted by GSR 1533 dated 8th July, 1968, enjoins that after the analysis has been completed, the public analyst shall send to the person concerned two copies of the results of such analysis in Form iii within sixty days of the receipt of the sample. The accused-opposite party refers to the evidence of P. W. 1, Sushil kumar De, the Food Inspector of the municipality, and points out that the prosecution has not proved that the specimen impression of the seal, used to seal the packet, was sent to the Public analyst separately by registered post. Sushil Kumar De, P. W. 1, stated in his evidence that specimen impression of the seal used was not sent by registered post. He stated that it was sent under a certificate of posting. The person, who is said to have posted that, was not examined to say that the cover, containing the specimen impression of the seal was handed over by him to the postal clerk and that Ext. 12 the certificate of posting was given lo him for that by the said postal clerk. In this state of evidence it cannot be said for certain that the Food Inspector sent the specimen impression of the seal, used to seal the packet to the analyst for analysis as enjoined by rule 18. It follows that the Public Analyst could not compare the seals on the container of the sample and the outer cover with the specimen impression required to be sent separately. That he could, and did not comply with Rule 7 (i) is further seen from the fact that there is no note about such comparison, or condition, of the seals thereon or in his report in Form III.