Kanaran vs State of Kerala

B.M. Thulasidas, J.—By judgment in S.T. 3 of 1987, the Judicial First Class Magistrate, Nadapuram, found the Petitioner guilty u/s 16(1)(a) read with Section 7(1), 2(1a) and (m) and Rule 5, Appendix B.A., 02.04 of the Prevention of Food Adulteration Act, for selling adulterated curd, to the Food Inspector, Badagara circle, on 26th November 1986 at 11.30 a.m. and was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000 and in default to simple imprisonment for one month more. The Sessions Judge, Kozhikode, by judgment on Criminal Appeal No. 239 of 1988, confirmed the conviction and sentence which is under challenge in this revision.

The Accused, Petitioner herein, is running a hotel in building No. K.P. 2/82 (3) of Kuttiyadi Panchayat, P.W. 1 visited the hotel at about 11.30 a.m. on 26th November 1986. He found there curd in cups exposed for sale. He purchased from the accused 600 grams of curd (8 1/2 cup) for analysis after observing the necessary statutory formalities. The curd was sampled according to the rules and one part of the sample was sent to the Public Analyst and the other two parts to the Local Health Authority. He had set out the relevant aspects in Ext. P-4 mahazar in which the accused and independent witnesses had signed, It appears, the sample sent to the Public Analyst by P.W. 1 got destroyed and as required by him, P.W. 5, the Local Health Authority forwarded Anr. part of the sample to him who, after analysis sent a report in Form No. III to the Local Health Authority, based on which the complaint was laid. At the instance of the accused, the remaining part of the sample was produced before Court and it was despatched to the Central Food Laboratory for analysis. Ext. P-15 is the certificate which showed that the sample did not confirm to the standards prescribed for curd prepared from buffalo milk.

Two contentions were raised in this revision and they are (1) that the sampling was not proper, in that care had not been taken to ensure homogeneity of the sample and (2) that there was breach of Rule 18 and Rule 4(3) which had prejudiced the accused.

I do not think the first contention has any merit in the light of the acceptable evidence of P.W. 1. He had deposed that he purchased 600 grams of curd from the accused which he collected in a clean vessel. The curd was stirred to ensure homegeneity before it was divided into three parts and filled in three clean dry bottles and sampled. His case was corroborated by P.W. 3. The relevant details had been set out in Ext. P-4 mahazar, which accused also had attested. Exception was not taken to it.

The sample bottles were despatched to the Public Analyst and the Local Health Auhtority on 26th November 1986 itself. P.W. 1 had spoken to the compliance of Rule 18 in the matter of sending the sample containers. His case was corroborated by P.W. 5 as also by Exts. P-6 to P-10 and P-13. There was no reason to disbelieve the evidence or to suspect the varacity of the documents relied on.

The above aspects, indeed, are not very relevant in this case since Ext. P-13 report of the Public Analyst was not in issue in view of Ext. P-15 certificate of the Director of Central Food Laboratory. The question to be considered is whether there was breach of Rules 4(2) and (3) and for that reason Ext. P-15 lost its evidentiary value.

Rule 7 deals with the duties of the Public Analyst and Rule 18 deals with the procedure for sending the sample container to him by the Food Inspector. These rules will have to be read together to understand their import and significance.

It was held in Mary Lazrado Vs. State of Mysore and Another, .-

This method of check and verification provided for by the rules is the only guarantee against tampering and is a definite source of confidence both to the accused and to the Court that the sample analysed was the very sample which had been submitted by the Food Inspector. * * * The procedure prescribed by the Rules serves a great public purpose by guaranteeing impartial and honest handling of the sample despatched to, and received for analysis by, the Public Analyst.

No doubt, in Food Inspector v. Govindan 1979 KLT 625, it was held that it would not be proper to discard the report of the Public Analyst merely on the ground that the rule had not been strictly complied with, inasmuch as, Rule 18 is directory and what is required is only substantial compliance and not strict compliance. It was also held in Food Inspector v. Mohanan 1979 KLT 560 that failure to produce receipts to show that memorandum and specimen impression of seal were sent to the Public Analyst by registered post would not be fatal, if a statement to that effect is available in the report of the Public Analyst. A presumption u/s 114(e) of the Evidence Act that official acts are regularly performed, could in appropriate cases be drawn; but not so, if evidence about such performance in fact is unavailable.

Indeed the accused has the option, to get a second opinion from the Director of Central Food Laboratory. On exercise of that option, the Court has to summon a part of the sample from the Local Health Authority under Sub-rule 2-A of Section 13. Under Sub-rule 2-B, on receipt of the sample from the Local Health Authority, the Court has to ascertain whether the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11, are in tact and the signature or thumb impression as the case may be, is not tampered with. The Court has then to despatch the sample container under its own seal to the Director of Central Food Laboratory, either through a messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form I in an outer cover addressed to him vide Sub-rule (1) of Rule 4. The container as well as the outer covering of the packet shall be marked with a distinguishing number as stipulated in Sub-rule (2) of Rule 4. A copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director as required by Sub-rule (3). These are undoubtedly safeguards that ensure that no tampering of the sample takes place either in transit or afterwards and before the analysis by the Director.

On receipt of the sample bottle from the Local Health Authority, the Magistrate recorded in the proceedings paper:

Verified. The seal and coverings are in tact. The signature of the accused on the sample is not tampered with. Covered and sealed in my presence. Forwarded to C.F.L., Poona.

There was indeed, compliance of Section 13(2-B) of the Act which was not enough. The Magistrate was obliged to observe the provisions in sub-rules (1) to (3) of Rule 4 which he did not, possibly, because he was unaware of those provisions. The question for consideration is whether sub-rules (1) to (3) of Rule 4 are mandatory and that their non-compliance would be fatal to the prosecution.

It was held in Harchand Gajpal v. The State 1976 (1) F.A.C. 15.

...Sub-rule (3) of Rule 4 in so far as it lays down that the specimen impression of the seal and a copy of the memorandum shall be sent separately to the Director serves a special purpose for the accused. It assumes greater significance in cases under the Prevention of Food Adulteration Act where the fate of the accused depends upon the certificate issued by the Director the contents of which are final and conclusive evidence of the facts stated therein and which are not open to challenge by the accused in any manner whatsoever. Not only he cannot challenge the contents of the certificate by leading any other evidence but he cannot also challenge the contents by requiring the Director to be cross-examined by him. Once the Director issues a certificate that the food sample sent to him was adulterated, the fate of the accused is sealed. It is not open to him even to ask the Court to get back the food sample analysed by the Director for further analysis by his own expert. When the final and conclusive character attributed to the certificate issued by the Director produces such a far-reaching consequence as we have analysed above, we have no doubt in our mind that all provisions of law which relate to it and which confer even the smallest safeguard on the accused must be construed strictly and not liberally. We are, therefore, of the opinion that the provision of Sub-rule (3) of Rule 4 of the Prevention of Food Adulteration Rules, 1955, in so far as they require that a specimen impression of the seal used by the Court to seal the container and the cover and a copy of the memorandum shall be sent separately to the Director are mandatory and are required to be complied with strictly.

Various other High Courts also held that Rule 4(3) is mandatory See Tezpur Municipal Board v. Mohan Lal Tibriwal 1977 (II) F.A.C. 167, Gopinath Babu More v. State of Maharashtra 1980 (I).F.A.C. 112; Hirday Narain v. State 1980 (I) F.A.C 436; Bhagwat Prasad v. State of U.P. 1980 (II) F.A.C. 294 and K.V. Pulla Rao v. State of Andhra Pradesh 1990 (I) F.A.C. 28 I am in respectful agreement with the above decisions which, in my view, lay down the correct law. Rules 4(2) and (3) must be held to be mandatory and non-compliance would render the certificate of the Director inconclusive. When there is a statutory prescription for doing an act in a particular manner, and it is mandatory it has to be done in the manner prescribed and that failure could not be excused or condoned even in spite of failure to prove prejudice to the party sought to be affected by the act. In my view, Ext. P-15 could not be used against the Petitioner. I must accordingly hold that the case against him had not been proved beyond doubt.

I set aside the coviction and sentence and acquit the Petitioner. Crl. R.P. is accordingly allowed.