Ramalingam and Another vs The Food Inspector, Nagapattinam Municipality, Nagapattinam

Suryamurthy, J.—This is a Criminal Revision Case against the Judgment of the learned Sessions Judge of East Thanjavur Division at Nagapattinam, confirming the convictions of the petitioners under Ss.7(1) and 16(1)(a)(i) read with S.2(1)(a) and (m) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), and the sentences of rigorous imprisonment for three months each and a fine of Rs. 500/- each, and the failure of the learned Magistrate to impose a sentence of imprisonment, in default of payment of the fine.

The petitioner will be referred to as A-1 and, A-2 in the course of this judgment. A-1 is employed in Dheen Oil Mills, Nagapattinam, belonging to a partnership firm of which A2 (Badrudeen) it a partner. On 30th December, 1976, at about 11 A.M., P.W.1, who is employed as a Food Inspector in the Nagapattinam Municipality, went with the Municipal Health Officer to Dheen Oil Mills, and served on A-1 a notice in Form No. 6 (marked as Exhibit P-1) disclosing his intention to take a sample of the groundnut oil exposed for sale in the said mills. A2 was not present at that time. A1 received the notice and thereafter from a sealed tin, he took out groundnut oil and sold the same to P.W.1 for Rs. 3-40. He also issued a cash receipt (marked as Ex. P2).

P.W.1 divided the oil into three equal parts and poured the same in three dry bottles, corked and sealed each of the bottles and gave Sample No. 829 to each of them and obtained the signature of A1 on each of the bottles. He sent one of the bottles to the Public Analyst and the remaining two bottles to the Local Health Authority. The Public Analyst found the sample to contain 4.3% of free fatty acids. As per Clause A.17.03 in Appendix B to the Prevention of Food Adulteration Rules, 1955, groundnut oil should not contain more than 3.0% Free Fatty Acids. Therefore, the Public Analyst expressed his opinion that the sample contained free fatty acids in excess of the permitted limit to the extent of 4.3 per cent. Though, the Food Inspector, while deposing as P.W.1, has not stated that he sent a memorandum in Form No.7 along with the sample to the Analyst or that he sent the specimen impression of the seal separately by registered post, the Food Inspector has received Form No. III from the Public Analyst containing the certificate that he found "the seal in tact and unbroken" and that "the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis."

Relying on the evidence of P.W.1 read with Ex. P.3, the report of the analyst, the learned Magistrate convicted both the accused as stated above and sentenced them to rigorous imprisonment for three months each and a fine of Rs. 500/- each. Strangely enough, the learned Magistrate has overlooked the fact that he had to impose a sentence of imprisonment in default of the payment of fine. His appreciation of the evidence in the case can be placed only on a par with his omission to award the default sentence.

It must straightway be said that A-2 cannot be convicted in the absence of any evidence to show that A2 was in charge of the conduct of the business or was responsible to the partnership for the conduct of the business. S.17 of the Act lays down:

(1) Where an offence under this Act has been committed by a company-

(a)(i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible, or

(ii) where no person has been so nominated, 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; and

(b) 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 and that he exercised all due diligence to prevent the commission of such offence.

In the instant case, there is no evidence to prove that at the time the offence was committed. A-2 was in charge of the business or was responsible to the partnership firm for the conduct of the business in any manner. Admittedly, he was not present at the time when P.W. 1 purchased the groundnut oil. In similar circumstances, the Supreme Court has laid down in Smt. Manibai and Another Vs. The State of Maharashtra, that,

Even if it may be assumed that the business was owned by a firm or an association of individuals and Manibai was a partner of that firm or member of that association of individuals, Manibai would be liable under S.17(1) of the Act for the sale which was made by her son Pranjivan only if it was shown that she was in charge of and was responsible for the conduct of the business which was carried on at the shop. There is no evidence to that effect on the record. In the absence of such evidence, no criminal liability for the sale of coconut oil by Pranjivan can be fastened on Manibai under the provisions of the Act.

In Chinniah Thevar v. Anthonisamy 1972 L.W. (Crl.) 215 Somasundaram, J., has observed that,

Under S.17(1) of the Prevention of Food Adulteration Act, it is the duty of the prosecution to prove that the person sought to be made liable was in charge of and was responsible to the company or society for the conduct of its business. Unless this initial onus is discharged, the accused cannot be called upon to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence.

Following the principles laid down in the aforesaid decisions, I am constrained to hold that in the absence of any evidence to prove that A-2 was in charge of the business or was responsible for the conduct of the business of the partnership firm, his conviction cannot be upheld. It is, therefore, set aside.

The conviction of A-1 cannot also be upheld for the following reasons: Rule 18 of the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules) lays down that

a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him.

Rule 7 of the Rules is to the effect that

(1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person, the public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon,

P.W. 1, the Food Inspector, had not stated that he sent a copy of the memorandum and specimen impression of the seal used to seal the packet separately to the Public Analyst either by registered post or to be delivered to the Public Analyst or any person authorised by him. The rule is mandatory, and the failure to observe the rule vitiates the entire trial. The learned Public Prosecutor contends that the statement in Form No. III (marked as Ex. P-3) that "the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector" is sufficient to prove that the specimen impression of the seal was separately sent by means of registered post. I am unable to accept this contention. The form used by the Public Analyst (Ex. P-3) is a printed form. The onus is on the prosecution to prove the guilt of the accused. In Belgaum Borough Municipality v. S. Shanker AIR 1968 Mys 196 a Bench of the Mysore High Court has considered a similar set of facts and has observed that-

If the report or the certificate is to be used as evidence without calling the Public Analyst or the Director of the Central Laboratory for evidence as the law now permits, then it is imperative that all the rules prescribing the procedure commencing from the state of purchasing the sample of food leading up to its analysis are strictly observed.

They have further laid down that rules 7 and 18 of the Rules framed under the Act are mandatory and the non-compliance of those Rules affects the evidentiary value of the report of the Public Analyst. They have again observed that they-

have no hesitation in holding that Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act are mandatory and the non-compliance of those Rules affects the evidentiary value of the certificate and is the absence of the extraneous evidence the conviction is sure to be vitiated.

In Mangilal Chamnaji v. State 1976 Cri. L.J. 614 a Bench of the Gujarat High Court has held in considering the provisions of Ss. 11 and 13 of the Prevention of Food Adulteration Act and the relevant rules that-

In order that a report of the Public Analyst may be admissible in evidence without examining the Public Analyst, it must comply strictly with the requirements of Form No. III, which inter alia furnishes evidence of the Public Analyst having discharged his duty under sub-rule (1) of Rule 7 as regards the identity of the sample examined by him.

In considering the language of the provisions of sub-Ss. (1), (2) and (5) of S.13 with the provisions of Rules, 7, 16, 17 and 18 the Gujarat High Court has held that the requirements of these provisions are mandatory and that therefore, strict compliance with the same is necessary.

With great respect, I agree with the ratio of the decisions of the Mysore High Court and the Gujarat High Court referred to above. In the instant case, P.W.1 has not stated, as already observed, that he sent the specimen impression of the seal separately either by registered post or by a person to be delivered to the Public Analyst.

Moreover, the Food Inspector has violated the provisions of S.11 of the Act read with Rule 16 of the Rules. S.11 lays down the procedure to be followed by the Food Inspectors when taking a sample of food for analysis, and it states that

When a food inspector takes sample of food for analysis he shall-

(a) give notice In writing then and there of his intention to have it so analysed to the person from whom he has taken the sample;

(b) except in special cases provided by rules under this Act divide the sample then and there 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;

Rule of 16 of the Rules prescribes that,

All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely,-

(a) The stopper shall first be securely fastened so as to prevent lekage of the contents in transit.

(b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The enos of the paper shall be neatly folded in and affixed by means of gum or other adhesive,

(c) A paper slip of the size that goes round completely from the bottom to top of the container, bearing the signature and code and serial number of the local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb-impression of the person from whom the sample has been taken being affixed in such a manner that the paper slip and the wrapper both carry a part of the signature: or thumb impression;

Provided that in case the person from whom the sample has been taken refuses to affix his signature or thumb impression, the signature or thumb-impression of the witness shall be taken in the same manner;

(d) The paper, cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twine or thread shall then be fastened on the paper cover by means of sealing was on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top pf the packet, one at the bottom and the other two on the body ot the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender. A seal or signature slip of the vendor may also be affixed on the sample, if the vendor so desires.

P.W. 1 has not stated that he securely fastened the stopper, so as to prevent leakage of the contents in transit. He has merely stated that he corked the bottles. Similarly, he has not stated that the bottles were completely wrapped in fairly strong thick paper and that the ends of the paper were neatly folded in and affixed by means of gum or other adhesive. He has not stated on oath that a paper slip of the size that goes round completely from the bottom to the top of the container, bearing the signature and code aha serial number of the Local (Health) Authority, was pasted on the wrapper, and the signature or thumb-impression of A-1 from whom the sample was taken was affixed in such, a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression. He has not also stated that the paper cover was secured by means of a strong twine or thread both above and across the bottle and the twice or thread was then fastened on the paper cover by means of sealing wax and that four distinct and clear impressions of his seal were affixed with the sealing wax on the outer cover, that one was at the top of the packet, another was at the bottom and the other two on the body of the packet. He has not deposed that the knots of the twine or thread were covered by means of sealing wax bearing the impressions of the seal of the sender, viz., himself. He has not stated that he did any of the acts required by Rule 16 of the Rules, evidently because he did not comply with the provisions of Rule 16.

Form No. III requires the Public Analyst to certify that the seals fixed (on the container and the outer covet of the sample, tallied with the specimen impression of the seal separately sent by the Food Inspector. It is seen from Ex.P.2 that the sample was not sent with the outer cover because the Public Analyst has not stated that the seal fixed on the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. Thus, P.W.I has violated the provisions of S.11 of the Act read with Rule 16 of the Rules framed under the Act.

The provisions of S.11 of the Act read with Rule 16 of the Rules are mandatory and the violation of the provisions of S.11 and Rule 16 vitiates the entire trial. These Rules have been framed in order to ensure that the samples sent are not tampered with subsequently. The failure to observe the rules strictly renders the case of the prosecution vulnerable. Therefore, the conviction of A-2 also has to be set aside.

In the result, the revision case is allowed, the convictions of A-1 and A-2 under Ss. 17(1) and 16(1)(a)(i) read with S.2(1)(a) and (m) of the Act are set aside, and the sentences of rigorous imprisonment for three months each and a fine of Rs. 500/- each are set aside, and A-1 and A-2 are acquitted. The fine amount, if paid already, will be refunded to A-1 and A-2.