Municipal Committee Amritsar vs Lachhman Dass

B.R. Tuli, J.—This appeal has been filed by the Muncipal Committee, Amritsar, against the order dated 8th March, 1966 passed by Shri Sher Singh, Judicial Magistrate, First Class, Amritsar, acquitting the respondent of the charge u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, after obtaining leave u/s 417 of the Code of Criminal Procedure.

The facts of the case briefly are that on 14th October, 1965 at about 3.45 P.M., Shri Deri Das Tak, Food Inspector, Municipal Committee, Amritsar, went to the shop of Lachhman Dass, respondent, and found 10 litres of cow milk in his possession which was meant for sale. After giving prescribed notice in form VI (Exhibit PA) under rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules), the Food Inspector in the presence of Ram Lal and Madan Lal purchased from the a ceased 660 milliter of milk for analysis for 0.40 paise vide receipt (Exhibit PB) signed and thumb, marked by the accused and attested by the witnesses. He divided the milk in three equal parts and put each part in a separate dry and clean bottle. Sixteen drops of formalin were added is each bottle which was duly packed and sealed. He gave one sealed sample bottle to the accused vide receipt (Exhibit PC) and seat one sample bottle to the Public Analyst with Meme. (Exibit PD) along with specimen of seal (Exhibit PE) on the next day. The Public Analyst sent his report (Exhibit PF), according to which, the sample of milk sent to him (Public Analyst) was found to be adulterated as the milk solids not fat were 7.4 per cent instead of S.S per cent. After receiving the report of the Public Analyst, the Food Inspector drew up the complaint (Exhibit PG) which is dated 8th November, 1965 but was filed in the Court of the Magistrate on 30th November, 1965. The accused was summoned for 9th December, 1965, but he actually appeared on 15th December, 1965. The evidence in the case was recorded on 4th January, 1966, and before doing so, the following charge was framed against the respondent:

That you, on or about 14th October. 1965, at 3.45 P.M. at Amritsar were round selling cow milk adulterated and thereby committed an offence punishable u/s 16(1) (a) of the Prevention of Food Adulteration Act, 1964 and within my cognizance.

And I hereby direct that you be tried by me on the said charge.

On behalf of the complainant Municipal Committee, only Devi Das, Food Inspector, appeared as a witness and he supported the prosecution story as given above. In his cross-examination, it was brought out that he did not clean the bottles at the spot, that he himself did not add the formalin in the bottles but Jamadar did so in his presence with dropper, that he had deposited the sample with the Public Analyst on the next day and the sample had remained with Dr. Joginder Singh for the night while the seal remained with him. He further stated that he had not recorded in the complaint (Exhibit PG) that the seal was intact when he handed over the sample to the Public Analyst.

In his statement u/s 342 of the Code of Criminal Procedure, the respondent admitted that Devi Das, Food Inspector, came to his shop on 14th October, 1966, at 3 45 P.M. but denied that he had 10 litres of milk in a tin. He stated that he had only one kilo of cow milk in patila which he had got for use in tea. He denied that he sold the milk to the Food Inspector or he received the price therefor and that his thumb impressions were obtained on three or four documents under threats. He admitted the addition of sixteen drops of formalin in each bottle but denied that any sample bottle was given to him. He denied all knowledge of the report of the Public Analyst.

The learned Magistrate has acquitted the respondent on the ground that the sample sent for analysis had remained with Dr. Joginder Singh for the night and no evidence had been led to prove that the sample had not been tampered with while it was in the custody of Dr. Joginder Singh The absence of evidence on this point created a doubt in the mind of the Magistrate as to whether the sample sent to the Public Analyst for analysis was in fact the sample taken from the accused at the spot. Giving him benefit of doubt, the learned Magistrate acquitted him.

In appeal, the first point urged before us by the Learned Counsel for the appellant is that it was not necessary for the Municipal Committee to prove that the sample bottle had not been tampered with while it was in custody with Dr. Joginder Singh during the night. It the respondent had any doubt about the genuineness of the sample sent to the Public Analyst for analysis, he could have got the sample bottle, which had been left with him, examined, his failure to do so leads to the conclusion that the sample bad not been tampered with and it had been rightly analysed. For this proposition of law, the Learned Counsel has relied upon a Division Bench judgment of the Allahabad High Court in Municipal Board Vs. Lal Chand Surajmal and Another, of the judgment deals with this point in the following terms :

The last point that was urged on behalf of the respondents was that there is no link evidence in the case indicating that the sample that was actually sent to the Public Analyst was the same that was taken by the Food Inspector. As to this we have the statement of the Food Inspector that the sample was sent from the office. We have the report of the Public Analyst that the seals were found intact when the sample was received. We have however no evidence of the person who actually despatched the samples and where these bottles remained in the meantime. The respondents also were given a sealed bottle at the time of the taking of the sample from them. If they wanted to challenge the fact that the sample that had been sent to the Public Analyst was not the sane that had been taken from them, or that the sample that had been sent had been tampered with during the course of transit or during the period it was stored in the office of the appellant, they could have sent their own sample for analysis as provided u/s 12 of the Prevention of Food Adulteration Act, 1954. This point also therefore has no force.

This judgment was followed by Anna Chandy J. in Food Inspector, Cannanore Municipality, Cannanore Vs. Pandavalappil Kannan, in which the learned Judge observed :

If there was any occasion for the accused to feel that the sample bottle forwarded to the Food Analyst was tampered with, he could well have taken steps to send the sample with him for analysis as provided in section 13(2) of the Act.

A Division Bench of the Jammu and Kashmir High Court in Jammu Municipality v. Faqir Hussain AIR 1968 J, & K 17 relying upon the Allahabad judgment supra held :

The procedure in this section is complete in itself. Its object is to safeguard the interests of the person from whose custody some food articles which are suspected to be adulterated are seized. After the Public Analyst gives his opinion against the person from whose possession the sample has been seized, the accused retains one portion of the sample, and if he feels that the sample seized is not the same as the one examined by the Public Analyst or feels that the teals were tampered with, he can come forward with his own sample and get it verified by the Public Analyst If he does not do so, it can safely be interred that he has had no grievance against the report of the Public Analyst.

Mr. Badadur Singh, appearing for the respondent, has invited our attention to rule 11 in Chapter 18 B of the High Court Rules and Orders, Volume III, which is to the following affect."

In all cases in which articles are brought up in evidence, the custody of such articles, throughout the various stages of the inquiry must be clearly traced and established. Evidence must be recorded on this point, and the evidence should never leave it doubtful as to what person or persons have had charge of the articles at any stage of the proceedings, All such articles must be distinctively marked, and any reference to them in the record must be so clear as to leave no room for doubt as to the special article referred to.

This rule has no relevancy to the samples which are sent to the Public Analyst for analysis. The rule applies to those articles which are taken possession of by the Police for investigation and have to be produced in Court for proving their case.

I am in respectful agreement with the law enunciated in the judgments noted above and I hold that it is not necessary for the prosecution to prove that the sample sent to the Public Analyst was not tampered with from the time it was sealed to the time it was put into the custody of the Public Analyst. If the accused has any doubt about the genniness of the sample analysed, he can have the sample that has been left with him analysed.

The elaborate procedure and precautions prescribed by sections 11 and 13 of the Prevention of Food Adulteration Act and by rules 14 to 22 of the Prevention of Food Adulteration Rules have been made with a view to secure absolute fair play and eliminate improper and unhealthy practices. The accused had ample means and opportunities of checking up the result of the analysis relied upon by the prosecution and to contradict it by having his own sample analysed in case he feels that the sample analysed had been tampered with. It is, therefore, hardly fair not to rely upon the report of the Public Analyst on a mere suggestion of the accused that the sample bottle sent to him for analysis might have been tampered with because its custody remained with some one who has not come forward to depose that it was not tampered with while in his custody. This the learned Magistrate was, therefore, not right in acquitting the accused on this ground.

The Learned Counsel for the respondent has argued that the Public Analyst has not certified that he had compared the seal on the sample with the specimen impressions of the seal sent to him and, therefore, the respondent had been rightly acquitted and for this argument, he has relied upon the judgment of Bedi J. in Tilak Raj v. The Stale (1967) 69 P L.R. 942.

The learned Judge had held in that case :

In my opinion, to base conviction upon such report the record must show that the Food Inspector and the Public Analyst had complied with rules 7 and 18 of the Rules which are mandatory. Where, therefore, the report of the Public Analyst merely shows that the seals were intact and unbroken but it does not show that the seals on the container were compared with the specimen seals sent by post to the Public Analyst, the Court cannot be sure that the sample which reached the Public Analyst was not tampered with on the way. This view is supported by a case reported as State of Gujarat Vs. Shantaben, and Mary Lazrado v. State of Mysore AIR 1966 Mys 214.

This matter has been recently considered by Shamsher Bahadur J. and Gopal Singh J. in Municipal Committee, Amritsar v. Parkash Chand (1968) 70 P.L.R. 1057 (Cr. A. No. 786 of 1966) decided on 9th July, 1968, in which the learned Judges have differed with the view propounded by Tukal J. in Mary Lazrado''s case which was followed by Bedi J. and they held :

that the statutory requirements do not lay down this duty on the public Analyst.

They have agreed with the opinion of Naik J. in Krishna Rajaram Wani Vs. M.V. Koranne and the State of Maharashtra, as it appeared to them to be in conformity with the language used in the statute. Naik J. had held in that case that the report of the Public Analyst in form III need not mention that the Analyst had compared the seal on the packet with the specimen seal sent separately and the omission was not of any vital importance. Following that Division Bench judgment, I find no merit in the argument advanced by Shri Bahadur Singh, Learned Counsel for the respondent.

The learned Magistrate has held that the accused respondent is not a milk seller. He has given no reasons in support of his finding but I find that the learned Magistrate has not dealt with all the defence pleas; for example, be did not sell milk to the Food Inspector nor he received any price therefor. As regards this plea, there is only a denial by the accused respondent. Madan Lal (D.W. 1) who was one of the witnesses present when the sample was taken, was not asked any question about the payment of price. Receipt (Exhibit PB) bears the signatures of Lachhman Dass in Urdu as well as his left thumb impression and recites that 0.40 paise on account of 660 mililitres milk taken for sample No 567-D dated 14th October, 1965 were received by him from Devi Das Tak, Food Inspector. This receipt is witnessed by Ram Lal and Madan Lal. Shri Devi Das appeared as P.W. 1 and stated on oath that he bad paid 0.40 paise as the price of 660 mililitre of milk purchased for which the accused gave him receipt (Exhibit PB). No question was put to him in cross-examination to show that he had paid no price to the accused. I, therefore, hold that the Food Inspector purchased 660 militres of milk for 0.40 paise from the accused for purposes of analysis after giving him notice in from VI (Exhibit P.A.).

According to the definition of "sale" in section 2(xiii), the sale of any article of food for analysis amounts to sale and it is not necessary to prove that the accused also sold that article of food to others.

Their Lordships of the Supreme Court have held in Mangaldas Raghavji Ruparel and another v. State, of Maharashtra A.I.R.(sic) S.C. 18 that the transaction of sale for analysis per se could be regarded as one of sale within the definition of the word ''sale'' in section 2(xiii) and observed:

A contract must be consensual and that this implies that both the parties to it must act voluntarily. No doubt, a contract comes into existence by the acceptance of a proposal made by one person to another by that other person. That other person is not bound to accept the proposal but it may not necessarily follow that where that other person bad no choice but to accept the proposal the transaction would never amount to contract. Apart from this we need not, however, consider this argument because throughout the case was argued on the footing that the transaction was a ''sale''. That was evidently because here we have a special definition of "sale" in section 2(xiii) of the Act which specifically includes within its ambit a sale for analysis. It is, therefore, difficult to appreciate the reasons which led Raman Navar J, to hold that a transaction like the present does not amount to a sale.

A Division Bench of this Court in Municipal Committee Ambala v. Basakhi Ram AIR 1963 P&H 173 = 64 P.L.R. 949, while considering the question whether the purchase of an article of food for the purpose of analysis was or was not sale, held as follows:

Definition of sale given in the Act makes it clear that the purchase of milk for analysis by Food Inspector would be a sale and would bring into operation the provisions of the Act.

The plea taken by the accused respondent that be does not sell milk but sells tea does not afford him any protection To the Food Inspector, he sold milk and the purpose of the purchase of milk had been notified to him as for analysis. For this reason, this plea is of no avail.

On the evidence produced in the case and after consideration of the various pleas raised by the respondent, we have come to the conclusion that the respondent had been wrongly acquitted. He committed the offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act as he sold milk an article of food which has been found to be adulterated The prosecution has been able to bring home the guilt to the accused beyond any shadow of doubt and we, therefore hold him guilty of the offence u/s 16(1)(a)(i) of the said Act. As regards sentence, we feel it is not a case in which the minimum sentence prescribed u/s 16(1) should be imposed. The case is covered by the proviso to sub section (1) of section 16 as milk has been found to be adulterated under sub clause (1) of clause (i) of section 2 of the Act and the offence was committed nearly three years ago. The accused respondent was in the first instance acquitted by the learned Magistrate. In view of these circumstances, we sentence him to undergo rigorous imprisonment for one month and pay a fine of Rs. 200 and in default of payment of fine; he will undergo further rigorous imprisonment for one month.

Gopal Singh, J.

I agree.