Hans Raj vs State of Punjab

T.H.B. Chalapathi, J.

This revision petition is filed against the conviction and sentence imposed on the accusedpetitioner under the provisions of Section 7 read with Section 16 of the Prevention of Food Adulteration Act. According to the case of the prosecution, the Food Inspector Patiala inspected the shop of the accusedpetitioner on April 23, 1987, situated at the Railway Station Patiala and the petitioner kept Bislary Club Soda water for sale. The Food Inspector purchased nine bottles of Bislary Soda Water from the accused petitioner and he kept three bottles each separately and sent three bottles for analysis to the Public Analyst. The remaining bottles were separated into two lots of three bottles each and were deposited in Court. The Public Analyst found that the samples sent to him contained superseded matter in large quantity and also coliform bacteria in large quantity and therefore, the sample was unfit for human consumption. After receipt of the report from the Public Analyst the Food Inspector filed chargesheet against the accused petitioner in the Court of Chief Judicial Magistrate, Patiala. In order to prove the guilt of the accused, the prosecution examined two witnesses and marked documents. On a consideration of the evidence on record, the learned Chief Judicial Magistrate, Patiala found the accused guilty of the offence under Section 7 read with Section 16 of the Food Adulteration Act and sentenced him to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 1000/ Aggrieved by the said conviction and sentence imposed by the learned Chief Judicial Magistrate, the accused preferred an appeal to the Court of Sessions Judge, Patiala in Criminal Appeal No. 8/14.8.1991. The learned Additional Sessions Judge, Patiala remanded the case to the Court of Chief Judicial Magistrate, Patiala for recording the statement of the accused under Section 313 Cr.P.C. afresh and to give an opportunity to the appellant to lead evidence and decide the case afresh in accordance with law. Aggrieved by the same, the appellant has preferred the present revision petition in this Court.

The learned Counsel for the petitioner contended that the sample was not obtained by the Food Inspector in accordance with law. According to the complaint and evidence of the Food Inspector, he purchased nine bottles of Bislary Soda Water and divided the bottles into three lots and sent one lot of three bottles to the Public Analyst for his report. The remaining six bottles were separately sealed into two samples of three bottles each. Therefore, the learned counsel for the petitioner contended that the accused is entitled to have an order of acquittal in his favour and that the order of the learned Additional Sessions Judge in remanding the matter should be set aside and he should have acquitted the accused. The point that arises for consideration is whether the sample was taken in accordance with law. There is no dispute of the fact that the Food Inspector purchased nine bottles of Bislary Soda Water from the accused. He kept only three bottles for Public Analyst while keeping the other bottles into two separate lots of three bottles each. The question is whether this satisfies the requirement of law. I am of the opinion that the samples have not been taken by the Food Inspector in accordance with law. In this context it is useful to refer to a Division Bench decision of this Court in State of Punjab v. Daulat Ram, 1991(3) RCR 428. The facts of this case are similar to the facts in the reported case. It has been held in the edition as follows :

"The learned Counsel for the appellant contended before that Rule 22A of the Prevention of Food Adulteration Rules provides where the sample is scaled it should be sent for analysis in the same contention and there was no necessity for mixing the sample in order to make it a representative one. The contention of the learned Counsel is not tenable as the sample of carbonated water is to be representative one. In the instant case the Food Inspector purchased nine bottles by way of sample. These bottles were not opened nor their contents were mixed. The samples were not divided in three separate parts for putting the same in three separate dry and clean bottles. Three samples of three bottles each were taken and only one sample was sent to the Public Analyst. It was not the case of the complainant that the contents of these bottles were common. The contents of these separate and distinct bottles might have not been uniform. One of the sample which was sent to the Public Analyst cannot be said to be representative sample as none out of the nine bottles could be taken as a representative sample of each other regarding its contents. When sample is not representative the prosecution must fail. Anil Kumar v. Food Inspector, Jind, 1982(1) Prevention of Food Adulteration Cases 9 is an authority to that effect."

In Bhagwan Dass v. State, AIR 1962 (Punjab) 419 it has been held as follows :

"Now in the present case, as I have said above, the Food Inspector purchased three separate bottles of aerated water each said to contain 12 ozs. and apparently one of these bottles was sent to the Public Analyst, the other two being dealt with according to the provisions of Section 11(1). It appears to me that this is clearly an improper and illegal manner of obtaining the sample since obviously the contents of three separate and distinct bottles may not be uniform. The whole idea of prescribing this elaborate method of taking and dividing up the sample is to have a check and countercheck 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 must 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 Rule 22 which contains a table of the approximate quantity of various substances to be sent to the Public Analyst or the Director of the Central Food Laboratory.

The sample to be given to the accused is solely for his 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 while 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."

The above quoted edition has also been followed by this Court in Vinod Kumar v. The State of Punjab, 1980(2) FAC 378. In view of the foregoing discussion, I am of the opinion that the Food Inspector has not taken the sample in accordance with law and therefore, the revision petition is to be allowed. The revision petition is accordingly allowed and the conviction and sentence imposed by the learned Chief Judicial Magistrate, Patiala and the order of remanding passed by the learned Addl. Sessions Judge, Patiala, is hereby set aside and the accused is acquitted of the charge framed against him.