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The Chairman, Jugsalai Notified Area Committee v. Mukhram Sharma .
Structured Summary of the Opinion
Factual and Procedural Background
This is an appeal by special leave under Section 417(3) of the Code of Criminal Procedure by the Chairman, Jugsalai Notified Area Committee, against an acquittal by a First Class Munsif Magistrate at Jamshedpur. The prosecution case was that on 31-5-1965 a Food Inspector (P.W.1) visited the respondent's shop, purchased a sample of cow's milk (3/4th seer), divided it into three parts of 8 oz. each, added 8 drops of formalin to each bottle, sealed and packed them, gave one bottle to the respondent and took two bottles, one of which was sent to the Public Analyst who reported the milk adulterated. A prosecution report followed and the respondent was tried. The respondent's defence was that he ran a tea and pakauri stall and did not sell milk; the Food Inspector took milk kept for preparing tea and paid for it against the respondent's wishes.
Prosecution examined two witnesses (the Food Inspector P.W.1 and another employee P.W.2) and tendered a peon. The defence examined one witness. The trial court acquitted the respondent on three grounds: (i) required quantity of formalin was not mixed with the specimen; (ii) the Public Analyst was not examined so defence had no opportunity to cross-examine him; and (iii) the accused was not a seller of milk and therefore could not be guilty of adulteration of milk.
Legal Issues Presented
- Whether a transfer of an article of food to a Food Inspector for analysis (including where the vendor objects) amounts to a "sale" within the meaning of Section 2(xiii) of the Prevention of Food Adulteration Act, 1954.
- Whether, when the Public Analyst's report is placed on the record but the Analyst is not examined as a witness, the prosecution can rely on that report without calling the Public Analyst, particularly where there was delay in analysis or an alleged insufficiency of preservative.
- Whether inadequate quantity of preservative and delay in analysis necessarily renders a Public Analyst's report inadmissible or unreliable.
- Whether the respondent, who ran a tea and pakauri stall and did not ordinarily sell milk, could be convicted for selling adulterated milk based on the sample taken by the Food Inspector.
Arguments of the Parties
Appellant's Arguments
- It was contended that a sale for analysis is a sale within the Act, relying on the definition of "sale" in Section 2(xiii) which expressly includes sale "for analysis."
- The appellant argued that the transaction whereby the Food Inspector obtained the sample amounted to a sale under the Act and thus the accused could be convicted for selling adulterated milk.
Respondent's (Defence) Arguments
- The respondent maintained he did not sell milk but ran a tea and pakauri stall; the milk was taken for preparing tea and was not offered for sale.
- The defence argued the Food Inspector took the sample against the respondent's wishes; the respondent paid price only under compulsion and therefore could not be guilty of selling adulterated milk.
- The defence contended that because the required quantity of preservative (formalin) was not mixed and the Public Analyst was not examined, the Analyst's report could not be relied upon.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Food Inspector, Calicut v. Parmeshwaran Parmeshwar Chettiar, 1962 (1) Cri LJ 152 (Ker) | Held there was no sale when a Food Inspector obtained a sample under Section 10; person could not be convicted under Section 16(1)(a)(ii). | The court noted this view but contrasted it with later decisions, implying it was not followed as a general proposition in the present matter. |
| Mangaldas Raghavji Ruparel v. State of Maharashtra, AIR 1966 SC 128 | Supreme Court observed that obtaining a sample could amount to a sale; also pronounced that failure to call the Public Analyst is not necessarily fatal where the report is on record. | The court relied on this Supreme Court authority to hold that the prosecution is not automatically at fault for not examining the Public Analyst and that the Analyst's report could be evidence without his examination. |
| Jamshedpur Notified Area Committee v. Prabhu Dayal, Criminal Appeal No.32 of 1962 (unreported, Pat) | Held that a non-voluntary transfer to a Food Inspector in cases he is empowered to take a sample would amount to sale. | The court cited this decision as supportive of the proposition that a non-voluntary transfer to a Food Inspector may amount to a sale when the Inspector is empowered to take samples. |
| Municipal Board, Faizabad v. Lalchand Surajmull, AIR 1964 All 199 | Tea vendor case: acceptance of price for sample converted the transaction into a sale; conviction under Section 7 read with Section 16. | The court relied on this decision to support its conclusion that the respondent's acceptance of price made the transaction a sale and justified conviction (albeit for a technical offence). |
| Dattappa Mahadappa v. Secretary Municipal Committee, Buldana, AIR 1951 Nag 191 | Relevant to practice of examining the Public Analyst when application was made and disallowed without reason. | The court distinguished this case from the present facts and noted it did not support the trial court's conclusion that non-examination of the Analyst automatically invalidated the report. |
| Emperor v. Happu, AIR 1933 All 837 | Authority cited in relation to the principle of examining experts/witnesses (case under Section 302 IPC). | The court observed that the Allahabad decision was not a food adulteration case and therefore was not determinative of the Act's procedural allowances; it did not accord decisive weight to this precedent. |
| Municipal Corporation Gwalior v. Kishan Swaroop, AIR 1965 Madh Pra 180 | Held that if preservative requirements under Rule 20 were not met, the Public Analyst's report could be relied upon only if it was shown mandatory requirements were fulfilled; raised concerns about adequacy of preservative and delay. | The court discussed this decision, noting it did not rest only on preservative inadequacy, and considered it alongside other authorities when assessing the reliability of the Analyst's report despite delay and insufficient preservative. |
| Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 | Supreme Court considered a case with no preservative and delay; held that the report of the Public Analyst can be relied upon unless the accused's statutory right (sending sample to Central Lab) was frustrated by prosecution; different considerations if prosecution not responsible. | The court cited this Supreme Court ruling to support the proposition that absence of preservative or delay does not automatically invalidate the Analyst's report and that the accused's choice and conduct on statutory rights matter. |
| Public Prosecutor v. F. Venkataswami, AIR 1967 Andh Pra 131 | Observations that mere insufficiency of preservative does not alone require ignoring the Public Analyst's opinion; the analyst should complain or the accused should invoke statutory remedies. | The court relied on this reasoning to hold that because the Public Analyst did not report decomposition and the accused did not request the Analyst's examination or send the sample to the Central Food Laboratory, the trial court erred in rejecting the Analyst's report solely due to less preservative. |
| Velu Konar v. State of Madras, 1964 (2) Cri LJ 97 (Mad) | Illustrative case where sample was examined 10 months after sampling; used to question reliability of analysis after long delay. | The court noted this case as an extreme example of delay but distinguished it from the present facts where delay was not of that magnitude and where other considerations applied. |
Court's Reasoning and Analysis
The court proceeded by (i) examining statutory definitions and powers under the Prevention of Food Adulteration Act and Rules, and (ii) applying relevant precedent to the facts.
1. Definition and scope of "sale": The court quoted Section 2(xiii) (definition of "sale") which expressly includes sale "for analysis." It then distinguished transfers to members of the public (which require the vendor's consent to be a sale) from transfers to Food Inspectors (who are empowered under the Act to take samples). The court explained that transfers to a Food Inspector may be voluntary or non-voluntary because Section 10 empowers the Food Inspector to take samples in specified circumstances and Section 10(3) requires payment of price where a sample is taken.
2. Whether the Food Inspector was empowered to take the sample here: The court found on the evidence that the respondent was not shown to be selling milk, nor shown to be in the course of conveying or delivering milk to a purchaser or consignee, nor storing or exposing milk for sale. Therefore the statutory circumstances under which the Food Inspector is empowered to take samples (as specified in Section 10(1)(a) and (2)) were not established by the prosecution’s evidence.
3. Whether the transfer amounted to a sale: Despite the absence of statutory empowerment, the court examined the factual matrix — evidence that the respondent initially objected to taking the sample but ultimately accepted price and gave a receipt. The court found that there was nothing in the defence evidence to show coercion in the acceptance of price and receipt. On that factual basis, the court concluded the transaction constituted a "sale" for the purposes of the Act, applying the reasoning in Municipal Board, Faizabad v. Lalchand Surajmull where acceptance of price made the transaction a sale.
4. Admissibility and sufficiency of the Public Analyst's report despite delay and preservative shortfall: The court set out the statutory position in Section 13(5) that a Public Analyst's report is admissible as evidence unless superseded by a certificate from the Director of the Central Food Laboratory. It rejected the view that non-examination of the Public Analyst by the prosecution automatically invalidates the report, relying on Mangaldas (AIR 1966 SC 128) which held the prosecution is not to be blamed solely for not calling the Analyst. The court observed that neither the respondent requested the Public Analyst's examination nor did the Analyst report decomposition; thus the trial court erred in rejecting the Analyst's report solely because the Analyst was not examined.
5. On the quantity of preservative and delay: The court acknowledged that Rule 20 required approximately 16 drops of formalin for 8 oz. of milk but only 8 drops were added by the Food Inspector. The sample was sent late and examined after a delay. The court reviewed authorities dealing with similar facts (Velu Konar; Municipal Corporation Gwalior; Municipal Corporation of Delhi v. Ghisa Ram; Public Prosecutor v. F. Venkataswami) and concluded that insufficiency of preservative and delay do not ipso facto render the Analyst's report inadmissible. The court noted the absence of any complaint by the Public Analyst that the sample had decomposed or was unfit for analysis and that the respondent had not availed himself of the statutory route of sending the sample to the Central Food Laboratory. On the combined factual and legal analysis, the trial court's reliance on preservative insufficiency and non-examination of the Analyst as grounds for acquittal was erroneous.
6. Conclusion of analysis: Given the court's findings that (a) the respondent accepted the price and thereby effected a sale for analysis, and (b) the Public Analyst's report on record was not shown to be unreliable or rendered inadmissible by reason of decompositional complaint or procedural prejudice, the court concluded the trial court erred in acquitting the respondent.
Holding and Implications
Holding: The appellate court set aside the order of acquittal and CONVICTED the respondent under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The appeal was allowed.
Sentence: The respondent was sentenced to pay a fine of Rs. 5/-, and in default to undergo simple imprisonment for one week. The court observed that the offence was technical and that a fine would meet the ends of justice. The court noted that under the proviso to sub-section (1) of Section 16, imprisonment is not compulsory.
Implications: The direct consequence is reversal of acquittal and imposition of a nominal fine (with default imprisonment). The court characterized the offence as technical and stated that no broader or novel legal principle was being laid down beyond its application of existing statutory definitions and precedents; therefore, no new precedent beyond application of established authorities was purportedly created. The court also expressed a policy observation that the Food Inspector and municipal authorities should not have pressed the matter given the circumstances, calling such prosecution and expenditure of public resources a waste.
End of summary (based exclusively on the provided opinion).
1. This is an appeal by special leave under Section 417(3) of the Cr PC by the Chairman, Jugsalai Notified Area Committee, against a judgment and order of a First Class Munsif Magistrate at Jamshedpur acquitting the respondent of the charge under Section 16(1) of the Prevention of Food Adulteration Act, 1954, (hereinafter to be referred to as ‘the Act’).
2. According to prosecution case, on 31-5-1965 a Food Inspector of the Committee (P.W 1) went to the shop of the respondent and took sample of cow's milk weighing 3/4th Seer, after observing the necessary formalities and on payment of price. He divided the milk into three parts and kept each part measuring 8 oz. in three bottles. He also added 8 drops of formalin (a kind of preservative) in each bottle and thereafter sealed and packed them. He gave one of the bottles to the respondent and took two of them with him. Out of those two, one was sent to the public analyst, who found the milk adulterated (vide his report Ext. 5). Thereafter a prosecution report was filed against the respondent and he was put on trial. The defence of the respondent is that he does not sell milk; rather has got a tea and pakauri shop and the Food Inspector took the sample of the milk which he had kept at his shop for preparing tea and paid the price of it against his wishes. He claims that he has not committed any offence.
3. The prosecution examined two witnesses, the Food Inspector (P.W 1) and another employee of the Notified Area Committee (P.W 2). A third witness, a peon of the Notified Area Committee, was merely tendered. The defence also examined a witness.
4. The learned Munsif Magistrate did not find any defect in launching of the prosecution or with the taking of the sample of the milk by P.W 1 but has acquitted the respondent on the grounds (i) that as the required quantity of formalin was not mixed up with the specimen, the respondent could not be convicted on its analysis, (ii) that as the Public Analyst was not examined in the case, the defence could not get an opportunity to cross-examine him and the respondent could not be held guilty on the basis of his report; and (iii) that as the accused had a stall of tea and pakauri and was not a seller of milk, he could not have been found guilty of adulteration of milk.
5. P.W 1 in his cross-examination has admitted that the respondent has a shop of tea and he did not sell the milk in the former's presence. P.W 2 has also admitted that he did not see the respondent, who sells tea, pakauri, singhara, etc. selling milk. The defence witness has said that the respondent has got a tea and pakauri stall, that milk is not sold at his stall and that the Food Inspector took the sample and paid price for it against the wishes of the respondent. On this evidence the question would arise whether the respondent can be held guilty for selling milk which was adulterated. It was contended by learned counsel for the appellant that a sale for analysis is a sale for the purposes of this Act. Reliance was placed on the definition of ‘sale’ in Section 2(xiii) of the Act which runs as follows:—
“‘Sale’ with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article.”
6. A sale for analysis is undoubtedly a sale according to the definition; but the question which arises for consideration is whether transfer of articles of food for analysis in all cases, whether voluntary or non-voluntary, amounts to a ‘sale’, for the purposes of the Act. According to provisions of the Act, transfer of articles of food for analysis may be to Food Inspector or to a purchaser other than a Food Inspector, i.e to a member of the public. Section 12 of the Act provides that any purchaser of any article of food other than a Food Inspector may have the article analysed by the Public Analyst on payment of the prescribed fees provided he informs the vendor at the time of the purchase of his intention to have such article so analysed and follows provisions of sub-sees. (1), (2) and (3) of section 11 so far they may apply. These sub-sections, inter alia, lay down that before taking a sample of any article of food for analysis written notice of the intention to have it analysed must be given to the vendor; the sample should ordinarily be separated into 3 parts and thereafter sealed, one of which should be delivered to the vendor, another should be sent to the Public Analyst for analysis and the third should be retained by the purchaser; in case where the vendor declines to accept any of the parts of the sample, it should be divided then only into two parts, one for being sent to the Public Analyst and the other for being retained by the purchaser; and, in sending the sample to the Public Analyst rules prescribed for the purpose should be followed.
7. While section 16(1)(b) provides that any person who prevents a Food Inspector from taking a sample as authorised by this Act shall be liable to be punished, there is no similar provision in the Act for refusal to sell a person other than a Food Inspector for the purposes of getting the article of food analysed by a public analyst. Therefore, transfer of any article of food by a vendor to a person other than a Food Inspector for the purpose of getting analysed by a Public Analyst ordinarily, cannot but be voluntary sale, inasmuch as, if the vendor refuses to transfer the goods no action can be taken against him.
8. But, as the Act makes preventing a Food Inspector from taking a sample as authorised by the Act penal, the transfer of an article of food to the Food Inspector may be either voluntary or non-voluntary. Section 10(1)(a) of the ad empowers the Food Inspector to take samples of any article of food from (i) any person selling such article; (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; and (iii) a consignee after delivery of any such article to him. Sub-section (2) of that section empowers the Food Inspector to enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis. Sub-section (3) of that section lays down that the Food Inspector after taking sample under either of the two preceding sub-sections should pay to the person from whom the sample is taken price of the article calculated at the rate at which it is usually sold to the public. The word “selling” in Section 10(1)(a)(i) and the word ‘sale’ in sub-section (2), it is obvious, do not mean sale for analysis to a Food Inspector, inasmuch as, these words refer to state of affairs which must be in existence before taking of the sample by the Food Inspector which may amount to sale as defined under Section 2(xiii) of the Act. If the person from whom the Food Inspector wants to take the sample readily agrees to it, allows him to take the sample and accepts the price, it will be a case of voluntary sale. In case he does not agree to the sample being taken, the Food Inspector may take the sample even against his wishes. In that case it will also amount to a sale as defined in the Act, but a non-voluntary one. In Food Inspector, Calicut v. Parmeshwaran Parmeshwar Chettiar, 1962 (1) Cri LJ 152 (Ker), a learned Single Judge of Kerala High Court took the view that there was no sale when a Food Inspector obtained a sample under Section 10 of the Act and the person from whom the sample was taken could not be convicted for an offence under Section, 16(1)(a)(ii) of the Act., In Mangaldas Raghavji Ruparel v. State Of Maharashtra, AIR 1966 SC 128, however, it was observed that it was difficult to appreciate the reasons of the learned Single Judge of Kerala High Court in the case referred to above that a transaction with which he had to deal did not amount to a sale and that it did not necessarily follow that the other person had no choice but to accept the proposal, the transaction would never amount to a contract and there would be no sale. A learned single Judge of this court in Jamshedpur Notified Area Committee v. Prabhu Dayal, Criminal Appeal No. 32 of 1962, judgment dated the 1st July, 1964 unreported (Pat) has also held that a non-voluntary transfer to a Food Inspector in cases he is empowered to take sample would amount to sale.
9. The instant case, however, is not a, case where the Food Inspector was empowered to take sample for the evidence on the record does not show that the respondent was selling milk or that he was in the course of conveying, delivering or preparing to deliver milk to a purchaser or consignee or that he was a consignee to whom milk had been delivered or that milk was manufactured for sale, stored for sale or exposed for sale in his shop. Mere storing of milk of quality below the prescribed standard is not an offence according to the Act. The storing must be for sale, and if the respondent would have refused to transfer the milk and accept the price for it from the Food Inspector, he would not have been guilty of an offence under section 16(1)(b) of the Act. This view is supported by a Bench decision of the Allahabad High Court in Municipal Board, Faizabad v. Lalchand Surajmull, AIR 1964 All 199. That too was a case of sale for analysis of milk by a tea vendor and it was held there that the accused of that case could have very well told the Food Inspector that he might take the sample but they were not going to sell the milk and accept its price, but as they accepted the price it was a case of sale and they were guilty of an offence under Section 7 read with Section 16 of the Act. In the instant case, as it appears from the evidence of P.W 1, at first the respondent was not willing to accept the price but ultimately did accept it. Of course the witness has also said that the respondent had objected to the taking of the sample of the milk on the ground that it was not for sale and thereupon the Food Inspector insisted for it and threatened to file a case against the respondent if he would not allow him to take the sample. According to this witness, the Food Inspector also insisted that the respondent must accept the money and grant a receipt. Can on this evidence it be said that the respondent accepted the price under coercion and, therefore, the transaction would not amount to a sale because non-voluntary transfer of an article of food in cases where the Food Inspector is not empowered to take the sample is not a sale? There is something in the evidence of defence witness no. 1 to show that there was element of coercion in the matter of taking of the sample, but there is nothing in it to indicate that there was coercion also in the matter of acceptance of price and granting of a receipt by the respondent. Therefore, on the evidence on record as it is, it has to be held that the transaction between the Food Inspector and the respondent is a sale for the purposes of the Act.
10. According to sub-section (5) of Section 13 of the Act, any document purporting to be a report signed by a Public Analyst, unless it has been superseded under sub-section (3) of that section by a certificate issued by the Director of the Central Food Laboratory, can be used as evidence of the fact stated therein in any proceeding under the Act. A report of a public analyst, therefore, is evidence even without the examination of the Analyst and ordinarily it cannot be brushed aside on the ground of non-examination of the Analyst by the prosecution. True it is that there was some delay in the examination of the milk by the Analyst and the quantity of preservative mixed in the sample of milk was less than the quantity as required by the rules; but, it cannot be laid down as a general rule that in all such cases of delay in the examination of the milk, the prosecution must examine the Analyst and if it fails to do so, the report cannot be relied on. After the report of the Public Analyst is brought on the record by the prosecution, it is open either to the court or to the accused to take appropriate steps for his examination if either of the two wants the Public Analyst to be examined as a witness. If the Public Analyst is not examined in spite of the request of the accused it can be argued that he has been prejudiced by his non-examination. In this case, however, it appears that there was no request by the respondent for examining the Public Analyst and the court below has, therefore, erred in observing that the respondent could not be held guilty on the basis of the Analyst's report because of his non-examination. It has relied on the decisions in (i) Dattappa Mahadappa v. Secretary Municipal Committee, Buldana, AIR 1951 Nag 191 and (ii) Emperor v. Happu*, AIR 1933 All 837. In Nagpur case the accused did make an application to the trial court for examining the Public Analyst as a witness and the prayer was disallowed without assigning any reason for it. The Allahabad case was not a case of Food adulteration. It was a case under Section 302 of the Indian Penal Code. In Mangaldas's case, AIR 1966 SC 128, already referred to above, while considering this aspect of the matter the Supreme Court observed as follows:—
“As regards the failure to examine the public analyst as a witness in the case no blame can be laid on the prosecution. The report of the Public Analyst was there and if either the Court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case.”
11. It is noteworthy that the judgment of the Supreme Court was delivered by Mudholkar, J., who himself had given the decision in Dattappa's case as Judge of Nagpur High Court. Certain other observations made in that case which may lead one to think that even if no request is made by the accused for examination of the Public Analyst his report cannot be relied on if the prosecution does not examine him, after the decision of the Supreme Court in Mangaldas's case, AIR 1966 SC 128, cannot be taken as good law.
12. The Food Inspector (P.W 1) in his evidence has said that he added 8 drops of formalin in each bottle which contained 8 ozs. of milk. According to Rule 20 of the Prevention of Food Adulteration Rules, 1955, as it stood after amendment on the date of the taking of the sample, two drops of formalin were required to be mixed to 25 grms. of milk. Therefore, about 16 drops of formalin should have been mixed by the Food Inspector to the 8 ozs of milk instead of only 8 drops. The sample though taken on the 31st of May, 1965, was not sent to the Public Analyst before the 5th of July, 1965 and it was examined only on the 17th of August, 1965. The court below has accepted the defence contention that the analysis of the sample could not be relied upon because milk itself got spoiled due to late analysis. In support of this view it has relied on the decisions in (i) Velu Konar v. State of Madras, 1964 (2) Cri LJ 97 (Mad) and (ii) Municipal Corporation Gwalior v. Kishan Swaroop, AIR 1965 Madh Pra 180.
13. In Velu Konar, 1964 (2) Cri LJ 97 (Mad) the milk was examined by the Analyst after 10 months of the taking of the sample. In the other case of Municipal Corporation Gwalior there was not much delay in the examination of the milk by the Analyst, even then it was observed that as the preservative added was not adequate to prevent disintegration or damage in composition of the milk, the report of the Public Analyst could carry weight only if it could be shown that the mandatory requirements of Rule 20 were fulfilled. The decision of that case, however, did not rest only on this ground.
14. In Municipal Corporation Of Delhi v. Ghisa Ram, AIR 1967 SC 970 the Supreme Court had occasion to consider the decision in the case of Municipal Corporation Gwalior and approved it on certain points. In the case before the Supreme Court it appears that no preservative at all was mixed to the sample of curd. There was also delay in launching of the prosecution with the result that when at the request of the accused the sample given to him was sent to the Director of the Central Food Laboratory, he reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible. The accused was acquitted by the trial court and the appeal by the Municipal Corporation was also dismissed by the Delhi Bench of the Punjab High Court. It was argued before the Supreme Court that though under the Act a certificate of the Director of the Central Food Laboratory had the effect of superseding the report of the Public Analyst, the absence of such a certificate whatsoever would not affect the value and efficacy of the certificate given by the Public Analyst. Their Lordships accepted the correctness of this proposition and observed that if in case the accused did not choose to exercise his right of sending the sample with him to the Director of the Central Food Laboratory, the case against him could be decided on the basis of the report of the Public Analyst. But as their Lordships found that the accused did choose to exercise this right and the right frustrated because of the conduct of the prosecution, they maintained the order of acquittal. They observed that different considerations might arise if the right got frustrated for reasons for which the prosecution was not responsible. From some of these observations of their Lordships of the Supreme Court it appears that in appropriate cases prosecution is possible even if no preservative is at all mixed which is against the dictum of the Madhya Pradesh High Court in the case of Municipal Corporation Gwalior, AIR 1965 Madh Pra 180 that the report of the Public Analyst could carry weight only if it could be shown that the mandatory requirements of Rule 20 were fulfilled. In Public Prosecutor v. F. Venkataswami, AIR 1967 Andh Pra 131, a case where required quantity of preservative was not mixed to the sample, it was observed:—
“…. nor there is any data on record to hold that merely because an insufficient quantity of preservative was added, the opinion of the Public Analyst on that account was liable to be ignored …. I am inclined to hold that the complaint should have emanated from the Public Analyst viz., that as insufficient quantity of the preservative had been added the sample had deteriorated or that decomposition had set in with the result that the analysis could not proceed on a safe footing. There is no such complaint by the Public Analyst nor the respondent has chosen to examine the Public Analyst from this point of view.”
15. The learned Judge further observed that if it was the case of the accused that on account of insufficiency of preservative the sample had deteriorated, he could have availed of the provisions under Section 13 of the Act and sent the sample to the Central Food Laboratory for an opinion and he having not followed that course, there was no justifiable reason to arrive at the finding that merely because of the insufficiency of the preservative the sample had undergone a further decomposition. In the instant case also the respondent did not take any step either for the examination of the Public Analyst or for sending the sample with him to the Director of the Central Food Laboratory for examination. In his report the Public Analyst has not said that at the time of the analysis the milk was decomposed and not fit for analysis. Therefore, the finding of the court below that as the required quantity of formalin was not mixed with the sample the respondent could not be convicted on its analysis appears to be erroneous. It, therefore appears to have erred in acquitting the respondent of the charge.
16. For the foregoing reasons, the order of acquittal passed by the Court below is set aside and the respondent is convicted under Section 16(1)(a)(i) of the Act. The offence, however, as observed in the case Municipal Board, Faizabad, AIR 1964 All 199 is technical in nature and as was done in that case, a sentence of fine of Rs. 5/- will meet the ends of justice in this case.
17. The offence is covered by the Proviso to sub-section (1) of Section 16 and a sentence of imprisonment is not compulsory. I accordingly sentence the respondent to pay a fine of Rs. 5/- in default to undergo simple imprisonment for one week. The appeal is accordingly allowed.
18. Before closing the judgment, however, I would like to observe that though the respondent has been found technically guilty of an offence and convicted and sentenced, it was not a case at all where the Food Inspector should have insisted on taking sample of milk from the respondent, or the authorities of the Notified Area Committee should have sanctioned the prosecution. It has resulted in nothing but waste of courts' time and public money in the hands of the Committee. The money in the hands of the Notified Area Committee being public money should not be wasted in such a manner.
KSB
19. Appeal allowed.
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