1. This appeal is against the acquittal of the respondents in a case in which they were prosecuted for an offence under s. 16 (1) (a) (i) of the prevention of food adulteration act (act 37 of 1954).

2. The prosecution case briefly was that the second accused, A hotel in calicut, Of which the first accused was the cashier and the 3rd accused was the managing director, Used to sell ice - cream. On 16 41970 pw. 1, The food inspector of calicut corporation, Went into the hotel and purchased ice - cream for the purpose of analysis. Nine cups of ice - cream are stated to have been purchased, The formalities complied with, The ice - cream purchased sampled into three according to procedure, One sample given to the accused, One sample sent to the court, And the third sent to the analyst for the purpose of analysis. The public analyst found that the sample contained ice - cream which was adulterated hence on the basis of ext. P - 3 report of the food inspector, Prosecution was sanctioned by the health officer of the corporation.

3. On the side of the prosecution three witnesses were examined. Pw. 1, As has already been referred to, Is the food inspector himself. Pws. 2 and 3 are two assistants of pw. 1. No independent witnesses were examined. The acquittal of the accused was based mainly on three grounds; (1) there was no reliable evidence with respect to the quantum of ice cream taken for the purpose of analysis, (2) there was no evidence as to whether formalin had been added, And even assuming that it was added, There is hardly any evidence as to the proportion in which, Formalin was used in relation to the quantum of the sample taken, And (3) the prosecution did not conform to the requirements of item a. 11. 02. 08 of appendix b of the prevention of food adulteration rules, 1955, Which fixes the standard for ice - cream.

4. Sri k. P. G. Menon, The learned counsel appearing for the appellant, Submits that the order of acquittal cannot be sustained on any one of the grounds stated by the learned district magistrate. As for the first ground, Namely, The quantity of ice - cream taken for analysis, Ext. P - 2 cash bill shows that approximately 900 grammes of ice - cream valued at rs. 9. 27 were purchased by pw. 1. Ext. P - 3. The food inspector's intimation, Shows that nine cups of ice - cream for rs. 9. 27 weighing 900 grammes were taken for analysis. Apart from this, Though the quantity of ice - cream taken for analysis is not specifically mentioned during the course of chief - examination or cross - examination of pw. 1, In re - examination he has stated "i took samples as per rules and quantity as prescribed by rules. 900 gms. Is the required quantity. I bottled in 3 bottles each containing 300 grammes". In cross - examination the witness stated, "bottle was full up to the neck. " further by virtue of the provisions in s. 114 (e) of the evidence act, Pw 1 should be presumed to have performed the official act of taking sample for analysis regularly in compliance with the rules prescribed in that behalf.

5. Even assuming that there is no acceptable evidence as to the exact quantity of the foods tuff taken for analysis, If it has been possible for the analyst to carry out a proper analysis and arrive at his conclusion without any handicap, The quantity of ice - cream taken as sample may not be much material. Under the various items of food enumerated in r. 22 of the prevention of food adulteration rules, 1955, Item 22 is ice - cream, And the approximate quantity to be supplied for the sample is stated to be 300 grammes. It appears that the legis - lature has used the word "approximately" guardedly, So that nice question of exactitude may cot create any difficulty in regard to the implementation of the relevant provisions of the act. As has been held in food inspector, Quilon v. Koyakutty (1972 klt 464)

"though r. 22 uses the word 'shall', The specific mention of an approximate quantity therein minimises the mandatory force of the expression; the provision is only a means for securing the evidence of an expert witness. If the quantity furnished was adequate enough to render possible all the tests necessary and the expert was in a position to pronounce on the materials supplied, The short delivery would not detract from the value of the evidence furnished by the analyst."

the view expressed in public prosecutor v. Venkata swami (air. 1967 andhra pradesh 131) is as follows:

"the object of supplying a reasonable quantity of sample is to enable the analyst to conduct more than one test, If necessary. If the quantity supplied is insufficient it is for him to complain that on account of the insufficiency of the quantity he could not analyse the sample and arrive at a conclusion. It is not open to the accused to make a complaint,."

the contention in that case was that, According to the rules, 8 ounzes of milk had to be sent to the public analyst whereas the quantity of milk that seems to have been sent was only 4 ounzes in the case of each sample. Repelling the contention of the accused, It was held that that has not resulted in any prejudice to the accused, The same is the view, In effect, Taken in public prosecutor v. Basheer sahib (air - 1966 madras 325) ; in nagar mahapalika v. Ant ram (air. 1965 allahabad 32) ; and in state of bombay v. Ramanlal jamnadas (ilr. 1960 bombay 404). In the light of these decisions, I am inclined to take the view that the learned district magistrate has misdirected himself in holding that because there was no acceptable evidence regarding the exact quantity of the ice - cream taken for analysis, The accused had to be acquitted.

6. Turning to the second point, The position seems to be the same as under the first ground. As per r. 20 of the prevention of food adulteration rules, 1955, The preservative to be added is formalin in the case of ice - creams and the quantity of preservative prescribed is 2 drops for 25 grammes. The quantity taken being 300 grammes in each sample, Formalin required to be added to each sample would be 24 drops. Ext. P - 4, Memorandum to the public analyst, Show, That formalin added to the sample was 16 drops. Though pw. 1 did not specifically mention the number of drops of formalin used as preservative in the case of each sample, He deposed that it was done according to rules. No doubt, 16 drops seen to have been used by him, As disclosed by ext. P - 4, Falls a little short of what is prescribed in r. 20. However, The question is whether this shortage has resulted in decomposition, Adversely affecting, Or in any way interfering with, A proper analysis of the sample that was sent. In this context the statement in ext. P - 6, Report by the public analyst, That the sample was found intact and was in proper condition without decomposition, Is of great value. So long as the deficiency or inexactness of the formalin added does not interfere with the effective analysis of the sample sent, The accused cannot have any grievance - moreover, To safeguard his interest in the event of a wrong analysis being done with a decomposed sample, One sample is given to him, Which, Under the provisions of s. 13 (2) of the act, He is entitled to send to the central food laboratory for

analysis. As the analyst has no complaint that the sample received by him was so decomposed as to interfere with the successful analysis of the sample, The quantum of formalin used is not of much significance. This is the view that has been taken by the supreme court in mangaldas v. Maharashtra state (air. 1966 sc - 128) and the same is the view expressed in public prosecutor v. Venkata swami (air. 1967 andhra pradesh 131) and in jugsalai municipality v - mukhram (air. 1969 patna 155). The presumption under s. 114 (c) of the evidence act that official acts have been regularly performed strengthens the position of the prosecution on this point also.

7. However, Sri. V. M. Prabhakaran nair, The learned counsel for the respondents, Brings to my notice the decision of this court in gopinathan nair, Food inspectors. Ittyavirah (1972 klt. 942), Wherein khalid j. Has observed as follows:

"a possible error in determining the fat content is the milk by the addition of excess quantity of preservative cannot be ruled out. The prosecu'. Ion should have in the cricum - s stances of the case made available to the court more acceptable evidence either by examining the public analyst or otherwise to show that in spite of excess preservative having been used there was no possibility of an error in determining the fat content in the milk, In the absence of such evidence the prosecution has not proved its case beyond reasonable doubt and the benefit of doubt should go to the accused."

it is argued by the learned counsel that if the use of excess quantity of formalin as a preservative could be considered to affect the report of the analyst, With equal force it could be said that where there is deficiency in the quantity of formalin added, Such faulty use of the preservative renders the report of the analyst unacceptable. No such inference necessarily follows. In this case, Ext. P - 6 report of the analyst contains a statement that the sample was received intact and was in good condition and that it was not decomposed so as to interfere with the analysis. If the analyst found the sample quite in order and there is a positive declaration that it was not decomposed so as to interfere with the analysis, There is absolutely no scope for taking the view that the report of the analyst has been in any way affected for the reason that there was deficiency with respect to the quantum of formalin used. Further, The doubt has been set at rest by the decision of the supreme court in h, R. Ruparel and others v. State of maharashtra ((1965) ii scwr. 561). Mudholkar j. Who delivered the judgment has held in para. 9 as follows:

"the high court did not hold that the certificate was by itself insufficient in law to sustain the conviction and indeed it could not well have said so in view of the provisions of s. 510 cr. Pc. What the high court seems to have felt was that in circumstances like those present in the case before it, A court may be justified in not acting upon a certificate of the chemical analyser unless that person was examined as a witness in the case. Sub section (1) of s. 510 permits the use of the certificate of a chemical examiner as evidence in any enquiry or trial or other proceeding under the code and sub s. (2) thereof empowers the court to summon and examine the chemical examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or the accused in this regard. It would, Therefore, Not be correct to say that where the provisions of sub s. (2) of s. 510 have not been availed of, The report of a chemical examiner is rendered inadmissible or is

even to be treated as having no weight sub - s. (2) of s. 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity taken under s. 11 of the act to the director of central food laboratory for a certificate. The certificate issued by the director would then supersede, The report given by the public analyst. This certificate is not only made admissible in evidence under sub - s. (5) but is given finality of the facts contained therein by the proviso to that sub - section. It is true that the certificate of the public analyst is not made conclusive but this only means that the court of fact is free to act on the certificate or not, As it thinks fit. "

in para. 11 of the same judgment it is stated 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."

in this case the accused did not choose to avail of the right under sub - s. (2) of s. 13 of the act. Neither the court nor the accused vendor thought it necessary to take steps for the examination of the analyst in court. In these circumstances the court should not have hesitated to act on the strength of the report of the analyst. I, Therefore, Find that the court below was in error in ordering the acquittal of the accused on the ground that there was no evidence regarding the addition of formalin to the sample, Or the proportion in which it was added.

8. The third ground on which the acquittal is based is that while as per item a. 11. 02. 08 of appendix b of the prevention of food adulteration rules, 1955, The standard for ice - cream is fixed, As there is no evidence as to whether the milk used for the preparation of ice - cream in question was skimmed milk or some other milk, It cannot be found out whether the provisions in the rules with respect to fat contents are satisfied. The learned counsel appearing for the appellant brings to my notice the amendment brought into effect by the notification dated 8 - 7 - 1968 by which the distinction between the skimmed milk on the one hand, And other milk on the other, Has been taken away. Therefore, This ground urged in support of his conclusion by the learned district magistrate, Without bearing in mind the effect of the amendment, Also is not correct. So, In short, None of the grounds stated in support of the acquittal can be considered to be valid.

9. The learned counsel for the respondents submits that even if this court finds that the order of acquittal is bad on the three grounds on which the court below based its conclusion, There are other grounds in this case which will go to show that the acquittal is just and fair. The one ground urged by the learned counsel in support of this argument is that only interested witnesses have been examined, In the sense that pws. 1 to 3 are all official witnesses, Pws 2 and 3 being the assistants of pw. L, The food inspector. Apart from arguing that this has resulted in prejudice to the accused, It has not been possible for the learned counsel to state precisely the particular prejudice that has been caused to the accused on account of the non - examination of independent witnesses. Further, As has been laid down in food inspector, Calicut corporation v. Padmanabhan nair (1967 klt. 825), The examination of independent witnesses cannot always be insisted upon for a conviction to sustain under the prevention of food adulteration act. The evidence in the case does not show that any prejudice has been caused to the accused on account of the non - examination of other witnesses, Than pws 2 and 3 to corroborate the evidence of pw. 1.

10. Yet another contention raised by the learned counsel for the respondents is that inasmuch as it has not been proved that the sample was taken after mixing up the contents of ice - cream in the nine cups, There is likelihood of prejudice being caused. There are no provisions in the act which in terms require that where articles are taken for analysis they should be mixed up before bottling. However, The learned counsel for the respondents has drawn my attention to the decision in bhagwandass v. State (air 1962 punjab 419). Dealing with a case where the food inspector purchased three separate bottles of aerated water each said to contain 12 ozs., And one of those bottles was sent to the public analyst, The other two being dealt with according to the provisions of s. 11 (1) of the act, It was held by the punjab high court that this was an improper and illegal manner of obtaining the sample since obviously the contents of three separate and distinct bottles may not be uniform. In support of the conclusion it was observed:

'the whole idea of prescribing the elaborate method of taking and dividing up the sample is to have a check and counter check on the report of the public analyst, And the clear intention is that if the sample of food taken is from a bulk supply the quantity taken mast be sufficient to be divided into three sufficient portions for the proper quantity to be sent to the public analyst in accordance with the provisions of r. 22. The sample to be given to the accused is solely for bis own protection, And obviously is intended to enable him to have it analysed privately for the purpose of producing evidence at the trial if necessary, To contradict the report of the public analyst. The third sample is kept in reserve for the matter to be decided by the director of the central food laboratory in case either party in prosecution is not satisfied with the report of the public analyst. In these circumstances it is of the utmost importance to ensure that the three samples are of uniform quality. Otherwise the whole value of the check and counter check is completely lost. "

this contention does not appear to have been in the minds of the accused in the trial court. I have not been shown anything in the cross - examination which is directed against this. No specific question with respect to this has been put, And in the absence of any statutory provisions, It cannot be held that the food inspector had violated a statutory provision which required explanation at his hands. I am not therefore inclined to accept this contention of the learned counsel for the respondents and it is also not necessary to examine the correctness of the opinion expressed in the decision of the punjab high court on which reliance is placed by the learned counsel.

11. Lastly, The learned counsel urged that in any event accused 1 and 3 are entitled to acquittal. It is submitted that in view of the acquittal there is a reiterated presumption of innocence of the accused. As far as the first accused is concerned, According to the counsel, He will not fall within s. 17 of the act which reads as follows:

17 (1). Where an offence under this act has been committed by a company, Every person who at the time the offence was committed was in charge of, And was responsible to the company for the conduct of, The business of the company, As well as the company, Shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

provided that nothing contained in this sub - section shall render any such person liable to any punishment provided in this act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence,"

(2) notwithstanding anything contained in sub - section (1), Where an offence under this act has been committed by a company and it is proved that the offence has bean committed with the consent or connivance of. Or is attributable to any neglect on the part of, Any director, Manager, Secretary or other officer of the company, Such director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. "

the first accused is not a person who is in charge of the affairs of the second respondent hotel. He was only a cashier. He had nothing to do with the commission of the offence. All that he did, And is attributed to have been done by him, Is to have received the cash as per the bill from pw. 1 he is not the person in ultimate control; nor is he the person who actually did the act of sale. He is only as employee of the firm who is not directly involved in the act of sale. I find considerable force in this argument advanced by the learned counsel, And hold that he is not a person liable as contemplated in sub - section (1) of s. 17 of the

act.

12. With respect to the 3rd accused, The argument is based on the proviso to sub - section (1) of s. 17. The learned counsel has taken me through the evidence of the 3rd accused who was examined under s. 342a cr. P. C. As dw. 1. He has stated, Inter alia, That even though he was the managing partner of the firm, He was not directly dealing with the matters, Having employed a manager in charge of the day - to - day affairs of the hotel, And as far as icecream was concerned, He had employed an experienced specialist in the line who was expected to prepare ice - cream as per the standards prescribed by the act and the rules. The learned counsel for the appellant points out that jayadevan who is stated to be the expert in the preparation of ice - cream has not been examined and, Therefore, It cannot be said that the 3rd accused has discharged his burden as required under the proviso to the sub - section. The explanation of the 3rd accused is that his firm is no longer running the hotel, It has been leased out to a third party, With the closure of the hotel business by bis firm, Jayadevan left the service of the firm, He is not aware of his whereabouts, And that this alone stood in the way of examination of the said jayadevan. Though, Normally, There is a danger of accepting a plea like this, As it would tend to defeat the very purpose of the act, On the facts of the case i have to hold that the third accused had taken all reasonable care and given necessary instructions to the person in charge of manufacture of ice - cream, To fully comply with the requirements of the proviso and to get himself absolved from the vicarious liability to which otherwise he will be liable. I think that the acquittal in respect of the third accused also has to be confirmed, Though for different reasons.

13. While confirming the order of acquittal passed by the court below in respect of accused nos. 1 and 3, I think, The acquittal order in respect of the second accused has to be set aside. The second accused deserves conviction for an offence under s. 16 (1) (a) (i) of the prevention of food adulteration act.

i, Therefore, In reversal of the order of acquittal passed by the learned district magistrate, Convict the second accused represented by the managing partner t. Sankaran, Under s. 16 (1) (a) (i) of the prevention of food adulteration act, 1954, And sentence is to pay a fine of rs. 1000/ - (rupees one thousand only. The fine will be paid within one month from this date in the court of the district magistrate. Calicut. The appeal is allowed in part, And to the extent indicated above.