RADHESHYAM AGARWALLA Vs. STATE OF ASSAM

JUDGEMENT

(1.) On 15 5.78 the Area Food Inspector, Jorhat collected sample of mustard oil from a sealed tin from the shop in question and on 19-5-78 sent it to the Public Analyst for examination. On 26-6-78 the Public Analyst sent a report and according to the said report the saponification value was found to be 178.7 whereas according to the item A. 17.06 in Appendix-B to the Prevention of Food Adulteration Rules, 1955, for short, 'The Rules' such saponification value in case of mustard oil should be between 168 to 177 Thus there was an increase of 1.7 of the saponification value of the mustard oil and accordingly the accused, petitioner, his father and the manufacturer were prosecuted under the provisions of Prevention of Food Adulteration Act, 1934, for short, 'the Act'. The learned Chief Judicial Magistrate, Jorbat by the judgment and order dated 8-10-85 passed in case No. C.R. 1436/1978 found the father of the accused petitioner and the manufacturer of the mustard oil not guilty and acquitted them accordingly. However, the learned trial court found the present petitioner guilty under section 16 read with section 7 of the Act and convicted him accordingly. The learned trial court sentenced the accused person to suffer rigorous imprisonment of 6 months and to pay a fine of Rs. 1,000.00. The abortive appeal was disposed of by the learned Sessions Judge, Jorhat by the impugned judgment and order dated 10-1-86 passed in Criminal Appeal No. 4(4) of 1985. Hence, the present petition.

(2.) The first contention of Mr. Sakewalla, learned counsel for the petitioner is that the conviction is bad in law as rule 14 of the Rules, which is mandatory was not complied with. In M. Mohammed Vs. State of Andhra Pradesh, 1978(1) FAC 114 the learned Judge of the Andhra Pradesh High Court held that the said Rule 14 is mandatory and not directory. Rule 14 provides the procedure for manner of the sending of sample for analysis. It, inter alia, provides that samples of food for purpose of analysis shall be taken in clean dry bottles or jars or any other suitable containers which shall he closed sufficiently tight to prevent leakage, evaporation or in case of dry substance, entrance of moisture and shall be carefully sealed. Thus it would appear that elaborate provisions have been made in the manner of sending the samole for analysis, the object being that the sample collected by the Food Inspector should not come in contact with any other foreign substance including moisture before analysis of the sample, as collected, by the Public Analyst. This elaborate provisions have been made keeping in view the principle of our criminal jurisprudence. In other words, the Act which is for prevention of adulteration of food, a social evil, should be strictly enforced and guilty person should be dealt with ruthlessly, but in doing so there should be adequate protection so that innocent persons are not punished. The Public servants whose duty is to enforce the Act should follow the mandate of legislation as contained in the Act and the Rules scrupulously and thoroughly for the purpose of achieving, the above object. I am of the opinion that the protection given to the accused person under Rule 14 of the Rules is mandatory as any deviation may cause prejudice to the accused and I respectfully agree with the law laid down in M. Mohammed (supra).

(3.) The learned trial Court in his judgment observed as follows :