1. The revision petitioner was convicted by the Judicial First Class Magistrate, Neyyattinkara in C.C No. 197 of 1978 under Ss. 7(1) and 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter called the ‘Act’) and the Prevention of Food Adulteration Rules (hereinafter called the ‘Rules’) and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for six months. The conviction and sentence were confirmed by the II Additional Sessions Judge, Trivandrum in Criminal Appeal No. 63 of 1979, who, however, reduced the default sentence from six months to three months. The Food Inspector, Neyyattinkara Municipality (Pw. 1) laid complaint against the revision petitioner under S. 7(1) read with S. 16(1)(a)(i) of the Act and A. 18.06 of the Appendix B of the Rules on the allegation that on 28-4-1978 at about 9.30 a.m he inspected the provision shop belonging to and run by the revision petitioner in Building No. N.M.C 1/47-A and after disclosing his identity and issuing Form VI notice, under the original of Ext. P2 and acknowledged as per Ext. P2(1), purchased 750 gms. of Peasdhal from the revision petitioner, paid him the price under Ext. P3 voucher, sampled the same in accordance with the provisions of the Act and the Rules, prepared Ext. P4 mahazar and got it signed by the revision petitioner and the witnesses and caused one sample to be sent to the Public Analyst along with a copy of the Form VII Memorandum similar to Ext. P5 and the other samples with other copies of the Memorandum sent to the Local Health Authority under Ext P6. The Public Analyst sent Ext. P7 report which showed the sample to be adulterated. The Local Health Authority sent copy of the report along with Ext. P9 intimation to the revision petitioner under Ext. P8 acknowledgment and directed the Food Inspector to lay a complaint which he did. The revision petitioner pleaded not guilty before the Trial Magistrate. Pws. 1 to 4 and Dws. 1 and 2 were examined. Exts. P1 to P9 were marked. The learned trial Magistrate as well as the learned Appellate Judge upheld the prosecution case.

2. The learned counsel for the revision petitioner challenged the legality of the sampling said to have been done by the Food Inspector and the acceptability of the report of the Public Analyst on several grounds. The main ground of attack is that the provisions of S. 11(1)(b) of the Act and Rule 16(c) of the Rules are mandatory in nature and that there is no evidence to show that these mandatory safeguards have been observed by the Food Inspector and therefore, the sampling is vitiated and the prosecution must necessarily fail or in the alternative prejudice must be presumed. The answer of the learned Public Prosecutor is that these provisions are not mandatory in the sense that a failure to observe the same would vitiate the trial or straight away lead to an acquittal, that substantial compliance is sufficient and that acquittal is warranted only if prejudice is proved.

3. I shall refer to the facts and circumstances of the case before dealing with the question of law. The alleged non observance relates to the taking the signature of the vendor, viz. the revision petitioner on the outer cover of the sample packet and the paper slip as contemplated in Rule 16(c) of the Rules. It is true that the mahazar, Ext. P4, makes mention of taking his signature, but the witnesses examined in the case, viz., Pws. 1, 2 or 4 do not speak of this aspect. There is absolutely no other evidence to show that the signature of the vendor has been taken on the outer cover and the paper slip. The Food Inspector did not even care to mention that the contents of the mahazar are true or that the sample was taken and the sampling was done in accordance with the provisions of the Act or the Rules Under these circumstances, I have to agree that there is no evidence to show that the signature of the vendor has been taken as required by the Act and the Rules. It is not one of the duties of the Public Analyst to verify if the signature of the vendor has been taken on the outer cover or on the paper slip, nor would he be in a position to verify the signature unless a specimen signature is sent to him and unless he is a person well-versed in the art. of comparing signatures. In this state of evidence, particularly the evidence of Pw. 1, no presumption can be drawn that the signature has been taken.

4. A look at the Act and the Rules is necessary in order to consider the question involved in this case. The Act has been extensively amended by Act 34 of 1976. Similarly the Rules also have been materially amended by Notification dated 4-1-1977. It is necessary to refer to the provisions of law both before and after the amendment. S. II(1)(b), as it originally stood, stated that when the Food Inspector takes the sample he must separate the samples into three parts and mark and seal or fasten up each part in such a manner as its nature permits; and according to clause (c) he has to deliver one part of the sample to the vendor, send another part to the Public Analyst and retain the third part with him for production in case it is to be sent to the Director of the Central Food Laboratory. Rule 7 of the Rules laying down the duties of the Public Analyst stated that he must compare the seals on the container and the outer cover with the specimen impression received separately and shall note the condition of the seals thereon. Rule 16, as it originally stood, required that the stopper of the container must be clearly fastened so as to prevent any leakage and that the container shall be completely wrapped with thick paper and the ends of the paper neatly folded and fixed. Clause (c) of Rule 16 stated that the paper cover shall be further secured by means of strong twine or thread in a particular manner and the thread fastened on the paper cover by means of sealing wax with atleast four distinct and clear impressions of the seal of the sender and the knot of the twine or thread shall be re-covered by means of sealing wax bearing the impression of the seal of the sender.

5. S. 11(1)(b) as amended states that when a food inspector takes a sample of food for analysis, be must divide the sample into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed and if he refuses to sign or put his thumb impression, the food inspector shall call upon one or more witnesses and take their signature or thumb impression in lieu of the signature or thumb impression of the vendor. One part must be sent to the Public Analyst under intimation to the Local Health Authority and the remaining two parts must be sent to the Local Health Authority for the purpose of S. 11(2) and S. 13(2)(A) and 13(2)(E) of the Act. S. 11(2) of the Act states that if the part of the sample sent to the Public Analyst is lost or damaged, he may require the Local Health Authority or the Food Inspector to despatch to him one or the other of the two samples. After prosecution as per Sec. 13 of the Act it is open to the accused to require the Court to send one of the samples to the Director of Central Food Laboratory. In such a case S. 13(2)(A) enables the court to secure from the Local Health Authority one sample and send it for analysis after satisfying itself that the mark, seal or fasteningare in tact and that the Signature or thumb impression of the vendor or the witnesses, as the case maybe, is not tampered with. It is open to the Local Health Authority also to sent one of the samples to another Public Analyst and secure another report. These are provided under sub-sections 2-A, 2-B and 2-E of S. 13 of the Act. Rule 7 of the Rules prescribing the duties of the Public Analyst has remained substantially the same except with regard to certain details which are not relevant for the purpose of this case. Rule 16 has been amended. There is no change in clauses (a) and (b) relating to securing the stopper and the wrapping with the thick paper, etc. Clause (c) has been re-numbered as clause (d) and a new clause (c) has been inserted. According to Rule 16(c) as amended after wrapping with the thick paper, etc. a paper slip of a sufficient size bearing the signature, code and serial number of the Local Health Authority, has to be pasted on the wrapper and the signature or the thumb impression of the vendor (or if he refuses, of a witness) has to be fixed in such a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression. This rule has been made in accordance with the amended S. 11(1)(b) of the Act which states that the signature or thumb impression has to betaken in the manner prescribed.

6. We may now scrutinize the changes brought about by the amendments to the Act and the Rules. Originally out of the three samples, one sample was to be given to the person from whom the sample was taken and another kept with the food inspector in case it was required later, apart from the sample sent to the Public Analyst. The Act and the rules did not provide for fixing a paper slip on the outer cover or taking the signature of the vendor or on his refusal to take signature of a witness in such a manner that it occurs both in the paper slip and the outer cover. That precaution was possibly thought unnecessary at that stage because before the amendment, the interests of the vendor were sufficiently safeguarded by handing over one of the samples to him. He could always preserve it properly without tampering with the package and seal, etc. and require the Court to send that particular sample to the Central Food Laboratory. It may be that experience showed that the vendors were deliberately tampering with the samples kept in their custody and trying to put the blame on the food inspector or that the samples in the custody of the vendors were attempted to be changed in collusion with the food inspectors Any way, legislature thought that it is not proper to retain one sample with the vendor and another with the food inspector. Under the amended Act both these samples are to remain in the custody of a higher authority, viz., the local health authority. But, thereby the protection given to the vendor by the handing over one sample to him was taken away. It is evidently to compensate the loss of this element of protection that the amended act requires the signature to be taken of the vendor on the outer cover as well as the paper slip. This is not only a protection to the vendor, but also a protection of the public interest, since neither the vendor nor the food inspector could tamper with any sample either singly or in collusion with each other as the custody of the samples has to be with the local health authority.

7. The above discussion is sufficient to show that the provisions of S. 11(1)(b) of the Act and Rule 16(c) of the Rules are procedural safeguards intended to protect the interests of the vendor as well as public interest. In one sense these provisions can be regarded as mandatory. It is the duty of the food inspector to follow the procedure prescribed under these provisions. At the same time, though these procedural safeguards can be regarded as mandatory in one sense, they cannot be equated with certain other mandatory provisions like S. 13(2) of the Act which requires a copy of the report of the Public Analyst to be sent to the vendor that is, the accused with intimation informing him that he may make an application to the court within 10 days to get the sample kept by the local health authority to be analysed by the Central Food Laboratory. The mandatory provision in S. 13(2) is not in the nature of a procedural safeguard. S. 13(2) burdens the local authority with the duty for the purpose of enabling the accused to exercise his very valuable right of requiring one sample to be sent to the Central Food Laboratory. The distinction is that while the duty of Local Health Authority under S. 13(2) of the Act is with reference to this valuable right of the accused, no such right can be said to be vesting with the vendor corresponding to the procedural safeguards contained either in S. U(1)(b) of the Act or in Rule 16 of the Rules. A failure to follow the provisions of S. 13(2) of the Act will necessarily vitiate the proceedings; and the court would be bound to presume prejudice to the accused and acquit the accused. But the same strictness of observance cannot be insisted on and the same consequence cannot be visualised with reference to the non-observance of the procedural safeguards.

8. Considering the intention and the object of the legislation, the purpose behind the specific provisions under discussion and the consequence which would follow in interpreting the provisions one way or the other, him of the opinion that substantial compliance with these provisions would be sufficient and it is for the accused to make out prejudice on account of absence of strict compliance with these provisions. I have taken the same view in Criminal Revision Case No. 25 of 1979. Kader, J has also taken the same view in Criminal Appeal No. 342 of 1979 and in Criminal Appeal No. 365 of 1979. No other decision of this Court or of any other Court has been brought to my notice.

9. In Crl. Revision Case No. 25 of 1979 the Food Inspector admitted that he did not affix paper slip on the outer cover because of the lack of departmental instructions, but he had taken the signature of the vendor on the outer wrapper. The non-compliance was regarding the failure to affix paper slip and to take signature in such a manner that part of the signature falls on the paper slip. It was held that more importance has to be attached to the signature than the affixture of paper slip since any tampering with the outer cover would necessarily result in the tampering with the signature which could be easily seen and that there was substantial compliance with the rule and that no prejudice has been made out.

10. In this case though there is evidence to show that the paper slip was affixed on the outer wrapper, there is no evidence to show that the signature of the vendor (or on his refusal the signature of the witness) was taken. There is a total lack of evidence of compliance to any extent of the provision requiring the signature to be taken. As already pointed out, though Rule 7 of the Rules has been amended in 1977 (that is after the amending Act of 1976) there is no amendment of the rule or Form No. III requiring the Public Analyst to verify the paper slip. In the very nature of the things, he cannot be expected to verify the signature. Whether the signature has been tampered with or not can be verified only by the Court as prescribed in S. 13(2)(B) of the Act which is a provision introduced by the Amending Act 34 of 1976. The question of verification arises only when there is evidence to the effect that the signature has been taken. In this case there is total lack of such evidence. There is no other material before the Court on the basis of which a presumption can be drawn that signature had been taken. It cannot, therefore, be said that there has been substantial compliance with the provisions of S. 11(1)(b) of the Act and/or Rule 16(c) of the Rules. In the circumstanes of the case, prejudice has been caused to the revision petitioner. I may also notice that though the Public Analyst was examined as Dw. 1, the prosecution did not care to question him with reference to the existence of any signature on the paper slip or on the outer wrapper. In this view I am satisfied that the possibility of the sample having been tampered with is very much real and genuine and hence the report of the Public Analyst cannot be accepted in this case. The conviction of the revision petitioner cannot, therefore, stand.

11. In the light of the above conclusion, I do not propose to consider the other questions canvassed before me. In the result, the conviction and sentence entered against the revision petitioner are set aside. The revision petitioner is acquitted of the charges framed against him. The bail bonds are cancelled. The fine, if any, paid will be refunded to the revision petitioner. This revision petition is accordingly allowed.

12. Allowed.